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filed: June 2, 1988.


Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County at No. GD 83-19240.


David J. Armstrong, Pittsburgh, for appellant.

Samuel E. Klein, Philadelphia, for Philadelphia Newspaper, etc., appellees.

Walter T. McGough, Pittsburgh, for PG Pub., etc., appellees.

Cirillo, President Judge, and Cavanaugh, Brosky, Rowley, Olszewski, Del Sole, Kelly, Popovich and Johnson, JJ. Kelly, J., concurs in the result. Rowley and Del Sole, JJ., recused themselves and did not participate in the consideration or decision of this appeal.

Author: Popovich

[ 375 Pa. Super. Page 68]

This is an appeal from an interlocutory order granted by permission of the Superior Court to the appellant, Rolf Larsen. See Pa.R.App.P. 312; 42 Pa.C.S. § 702(b).

Because the appellant challenges the grant of the appellees'*fn1 preliminary objections in the nature of a demurrer to his amended complaint, we must accept as true all well-pleaded facts in his amended complaint and the reasonable inferences to be drawn therefrom. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Further, a demurrer can only be sustained if it is certain that no recovery is permitted. Any doubt must be resolved against sustaining the demurrer.

[ 375 Pa. Super. Page 69]

    articles libelling the appellant and/or all or portions of the supposedly confidential transcript and record of the JIRB proceedings.

Counts II and III claimed the appellant was defamed by the articles published and asked for damages, as was the case in all subsequent counts, in excess of $20,000 for the injuries incurred; Count IV's cause of action was rooted in Restatement (Second) of Torts § 652B, 42 Pa.C.S. § 3334, the state constitution (Article V, Section 18(h)) and JIRB's Rule 20, i.e., intrusion of the right of privacy; Count V's contention was premised on Restatement (Second) of Torts § 652E, i.e., invasion of privacy: false light, by the appellees' purported selective publication of confidential excerpts from the JIRB proceedings; Count VI's request for relief was grounded upon the appellees' failure to respect the inherent right of the appellant to his reputation, as allegedly protected by Article I, Section 1, Article V, Section 18(h) of the state constitution, and 42 Pa.C.S. §§ 3334, 8341 et seq.; and Count VII rested upon a right of action purportedly existing in 42 Pa.C.S. § 4135 for the claimed defamatory publications by the appellees.

Preliminary objections in the nature of a demurrer followed and culminated in the submission of an amended complaint, which was similar in substance to the original one presented, by the appellant. What followed was an order of court, accompanied by a 49-page opinion, which, as is herein germane to the matter on appeal, (1) sustained the demurrer to Count IV, but granted leave to file a second amended complaint to the appellant to substantiate his cause of action under Section 652B of the Restatement (Second) of Torts, (2) sustained the demurrer to Count V and granted leave to the appellant to amend to plead facts giving rise to a cause of action under Section 652E of the Restatement (Second) of Torts, (3) sustained the demurrer to Count VI and (4) sustained the demurrer to Count VII.

Thereafter, the order entered was amended to read that the paragraphs recited above involved controlling questions of law as to which there was substantial ground for a

[ 375 Pa. Super. Page 71]

    difference of opinion and that an immediate appeal from the original order might materially advance the ultimate determination of the matter. This Court, upon petition of the appellant, granted permission to appeal the interlocutory order at issue. With the submission of briefs by all concerned and the presentment of oral argument before this Court sitting en banc, the matter is now ripe for resolution.

The first issue to be addressed is whether the court below erred in sustaining the demurrer to Counts IV and VI of the amended complaint on the basis that the appellant did not have a cause of action against the appellees for their purported violation of the confidentiality mandated in Article V, Section 18(h) of the Pennsylvania Constitution, 42 Pa.C.S. § 3334 and Rule 20 of the Supreme Court Rules governing JIRB proceedings.*fn3

It is the appellant's position that without engrafting a private cause of action entitling one to the recoupment of

[ 375 Pa. Super. Page 72]

    damages for violation of the confidentiality provisions of the Pennsylvania Constitution, statute and JIRB rule governing judicial inquiries, "the confidentiality provisions lose all meaning and their purpose cannot be effectuated." This is so, argues the appellant, since the various provisos requiring confidentiality make no reference as to how a violation of the confidentiality is to be treated or whether any type of sanction was ever contemplated by the drafters of the respective regulations.

In response, the appellees contend that the violation of the confidentiality provisions cannot give rise to a private cause of action for a breach thereof. If this were to occur, they urge, such an interpretation would violate their First Amendment rights under the United States Constitution and under Article I, Section 7 (Freedom of the press) of the Pennsylvania Constitution.

Preliminarily, prior to reaching the question of whether a private cause of action exists so as to afford the appellant the right to sue the appellees for damages, via the Pennsylvania Constitution, statute and rule proffered for alleged damages arising out of the publication of what took place at the JIRB proceedings, we find it prudent to address the question of whether the appellees had a right to publish the information generated during the JIRB hearings. For if, as we see it, the appellees had a constitutionally-based right to print the information secured by them, (the methodology by which this occurred is not discernible from the pleadings before us) then, absent "actual malice" in the publication, the appellees would be immune from liability, at least to the extent that recovery would be premised upon the specific provisions of the Pennsylvania Constitution, statute and rule argued by the appellant.*fn4

We begin our discussion with Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978), in which the United States Supreme Court

[ 375 Pa. Super. Page 73]

    was faced with the issue of whether the Commonwealth of Virginia could subject individuals, including newspapers, to "criminal" sanctions for disclosing information presented before a state judicial review commission authorized to hear complaints as to judges' misconduct, given that such proceedings were declared to be "confidential" by the State Constitution (Article 6, § 10), statute (§ 2.1-37.13) and rule of the commission (No. 10).

It appears that a Virginia newspaper printed an accurate article on a pending inquiry by that State's Judicial Inquiry and Review Commission (JIRC) investigating a judge's conduct. Thereafter, the newspaper was indicted for divulging the information submitted to the JIRC as violative of the State's statute which implemented the constitutional mandate of confidentiality. The two were consistent with the JIRC's Rule No. 10 on confidentiality, save for the Rule's imposition of a misdemeanor status for its violation.

The managing editor, albeit cognizant of the possible criminal repercussions, decided to publish the article in the belief that the matter was of public importance and should be brought to the readers' attention. Also, the editor testified that no member of his staff was summoned before the JIRC to give testimony in connection with what appeared in the article.

After trial, in which the newspaper was found guilty and ordered to pay a $500 fine, the Supreme Court of Virginia upheld the conviction on appeal. It did so in the belief that:

[ 375 Pa. Super. Page 74]

    proceedings -- the imminent impairment of the effectiveness of the Commission and the accompanying immediate threat to the orderly administration of justice.

217 Va. 699, 712, 233 S.E.2d 120, 129.

On certiorari to the United States Supreme Court, the decision was reversed and review was restricted to the narrow issue of whether the First Amendment condones criminal punishment of third persons who are strangers to the inquiry, including the news media, for divulging or publishing truthful information regarding confidential proceedings of the JIRC.*fn6

In making its determination, the United States Supreme Court concluded that:

435 U.S. at 838, 98 S.Ct. at 1541 (Citation omitted). Elaborating further, the Court engaged in a discussion recounting the traditional belief that the law affords "'[j]udges as persons . . . no greater immunity from criticism than other persons or institutions.'" Id. at 839, 98 S.Ct. at 1541, quoting Bridges v. California, 314 U.S. 252, 289, 62 S.Ct. 190, 206, 86 L.Ed. 192 (1941). This precept is embedded in the understanding that the judicial conduct of judges is a matter of the "utmost public concern." And, to effectuate this belief, the press is "'regarded as the handmaiden of effective judicial administration . . . . [and] guards against the miscarriage of justice by subjecting the . . . judicial process to extensive public scrutiny and criticism.'" Id.,

[ 375 Pa. Super. Page 75]

    quoting Sheppard v. Maxwell, 384 U.S. 333, 350, 86 S.Ct. 1507, 1515, 16 L.Ed.2d 600 (1966).

The fact that the JIRC was under examination entitled it to no less exposure than the operation of the judicial system itself. Both were held to be a "matter of public interest, necessarily engaging the attention of the news media." Id. at 839, 98 S.Ct. at 1542. As such, the publication by the newspaper satisfied those concerns of informing the public and prompting discussion of governmental affairs which the First Amendment was written to protect. See New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964).

The assertion of the attorneys for the Commonwealth of Virginia that criminal sanctions were necessary to ensure the guarantee of confidentiality and that anything less would render such secrecy no more than an empty promise was likewise rejected by the Court as being buttressed by little more than assertion and conjecture.

To the same extent, we find that the appellant's contention that a refusal by this Court to acknowledge and legitimize a private cause of action for violation of the particular provisions of the Pennsylvania Constitution, statute and rule cited earlier would render the "confidentiality" aspect of each nugatory is no more persuasive.

The incantations of the appellant as to the protections sought to be afforded those subject to the scrutiny of the JIRB, being, essentially, similar to those voiced to the United States Supreme Court (see note 5, supra) as warranting the enforcement of a violation of Virginia's "confidentiality" provision, cannot be endorsed without running afoul of Landmark. The Supreme Court's profound concern with having the First Amendment's freedom of the press to scrutinize and discuss governmental, as well as judicial, matters is pristinely ...

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