DiSalle v. P.G. Pub. Co.

Decision Date05 August 1988
Citation544 A.2d 1345,375 Pa.Super. 510
Parties, 15 Media L. Rep. 1873 Richard DiSALLE and Joan DiSalle, His Wife, v. P.G. PUBLISHING COMPANY, t/a The Pittsburgh Post-Gazette, a Corporation, Appellant.
CourtPennsylvania Superior Court

Daniel M. Berger, Pittsburgh, for appellees.

Before CIRILLO, President Judge, and JOHNSON and MONTGOMERY, JJ.

CIRILLO, President Judge:

The libel action underlying this appeal stems from the publication of an article in the September 10, 1979 edition of the appellant's newspaper, the Pittsburgh Post-Gazette. See Appendix. The suit was tried by the Court of Common Pleas of Washington County sitting by agreement of the parties and counsel in neighboring Westmoreland County. The Honorable Gilfert M. Mihalich, President Judge of Westmoreland The appellant urges upon us three categories of error committed by the trial court which entitle it to the relief sought: (1) error concerning the constitutional "actual malice" standard to be applied; (2) error concerning the award of compensatory damages; and (3) error concerning the award of punitive damages. 1 We affirm.

County, presided by special appointment. Following a lengthy trial, the jury returned a general verdict in favor of the appellees, Richard DiSalle and Joan DiSalle, his wife, in the combined amount of $210,000.00 compensatory and $2,000,000.00 punitive damages. The Post-Gazette filed timely motions for post-trial relief, which the trial court denied after a thorough and well reasoned discussion of the case. Here the paper seeks, in the alternative, a judgment non obstante veredicto, a new trial, or a remittitur of damages.

The article in question appeared in the "City/Area" section of the Post-Gazette, a paper with a daily readership of nearly 200,000, under the title "Feud Heats in Family's Battle for $8 Million Inheritance." The matter was first brought to the attention of the Post-Gazette staff when Robert Ciaffoni called the assistant city editor, Dave Warner, to inform him of a dispute then embroiling his family over the will of his father, Paul Ciaffoni, who had died in 1974. Mr. Warner assigned a reporter, Tom Porter, to investigate the potential for a story.

Mr. Porter's first stop, and ultimately his principal source of information in this investigation, was Robert Ciaffoni. From Ciaffoni, Porter learned that the family dispute focused on the authenticity of the decedent's 1968 will, which had been admitted to probate in 1974. He also learned that Ciaffoni, as well as other family members, had taken the contest to the courts of Washington County by filing an appeal from probate, that the matter had been tried before the Honorable Earl S. Keim, specially appointed to preside over the contest, and that Judge Keim had upheld the validity of the probated document six months before Ciaffoni contacted the newspaper, and nearly a year before the article was published.

In this context, Richard DiSalle, a local attorney who had served for eight years on the trial bench of Washington County, and who later filled a vacancy on the commonwealth court bench by appointment of Governor Shapp, was alleged to have conspired with Ciaffoni's sister, Elizabeth Cowden, to produce the fraudulent will. After reviewing an early draft of Porter's story, Warner noted what he considered to be a hole in that it did not give any explanation why DiSalle would involve himself in such a conspiracy. In an attempt to address this concern, Porter included in later drafts material from a deposition taken of Robert Ciaffoni in anticipation of the will contest, wherein Ciaffoni was asked about prior statements he had made concerning the relationship between DiSalle and Mrs. Cowden. In the final article, this material, by then reduced to a single quote, left the reader with the impression that the reason for DiSalle's involvement in the conspiracy was a meretricious relationship with Mrs. Cowden. This issue was never raised during the trial itself, nor was the deposition introduced into evidence.

These two allegations made by Robert Ciaffoni, that is, that Richard DiSalle participated

in a fraudulent act and that he had an illicit affair with a co-conspirator, contained as they were in an article that did not principally focus on the will contest which had occurred in Washington County much earlier, form the basis of this libel action.


The Post-Gazette first challenges the definition of actual malice applied by the trial court, asserting that a different standard should have been used under the facts of this case. Because the paper does not also allege that the evidence was insufficient to prove actual malice as the trial court defined it, we are faced with the single question whether the trial court committed an error of law in defining actual malice as it did. Before reaching this issue, however, we must first determine the propriety of applying the actual malice standard at all.

A. Applicability of Actual Malice

The requirement of proof of actual malice in certain defamation actions, discussed more extensively infra, was first introduced into the constitutional arena, where the tension between the freedoms of the First Amendment and the constraints of state defamation law is manifest, by the Supreme Court in the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). There, the Court cleared the ground and laid the cornerstone of this coliseum for the stated purpose of more effectively limiting "a state's power to award damages for libel in actions brought by public officials against critics of their official conduct." Id. at 283, 84 S.Ct. at 727 (emphasis added).

At the time the article in question was being researched and published, Richard DiSalle was sitting on the Commonwealth Court of Pennsylvania by appointment and was campaigning for a full term on that court. Thus, his status as a public official cannot be disputed. However, the alleged misconduct attributed to DiSalle occurred in the late 1960's, when he was a private attorney, and approximately ten years before his appointment to a vacancy on the Commonwealth Court. At first blush, then, it appears that only one of the two requirements of the New York Times standard has been met, and proof of actual malice should not have been required.

However, as is often the case, in the years which followed the Supreme Court's decision in New York Times, factual scenarios arose which tested the high court's statement of the rule. In Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), the Supreme Court reversed a Louisiana Supreme Court decision which refused to apply the New York Times rule in a prosecution for criminal defamation. The state court reasoned that the expressions at issue did not fall within the purview of criticism of official conduct when the attack was on the personal integrity of eight state trial judges and not on the way any one of them conducted his court when in session.

Justice Brennan, in his opinion for the court, found this reasoning defective:

The public-official rule protects the paramount public interest in a free flow of information to the people concerning public officials, their servants. To this end, anything which might touch on an official's fitness for office is relevant. Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character.

Garrison, 379 U.S. at 77, 85 S.Ct. at 217 (footnote omitted).

In Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971), the Supreme Court was asked to revisit the question of what constitutes "official conduct" in determining when the New York Times rule is to be applied. There, the plaintiff in a civil libel action sought recovery The court went on to note that,

                for a statement made during the course of a political campaign that the candidate was a former small-time bootlegger.  The trial court recognized that the plaintiff's candidacy for public office made him a public figure, but left it to the jury to determine whether the expression attacked official conduct rather than private conduct.  The Supreme Court reversed, finding that the broadening of official conduct to that conduct which reflects on an official's fitness for office applies with special force to candidates.   Roy, 401 U.S. at 274, 91 S.Ct. at 626

"[i]ndeed, whatever utility the 'official conduct' concept may retain with regard to occupants of public office ... it is clearly of little applicability in the context of an election campaign. The principal activity of a candidate in our political system, his 'office', so to speak, consists in putting before the voters every conceivable aspect of his public and private life that he thinks may lead the electorate to gain a good impression of him.... And the candidate who vaunts his spotless record and sterling integrity cannot convincingly cry 'Foul!' when an opponent or an industrious reporter attempts to demonstrate the contrary. Any test adequate to safeguard First Amendment guarantees in this area must go far beyond the customary meaning of the phrase 'official conduct.' "


Judge DiSalle, at the time the Post-Gazette article was published, was the holder of a position in the public trust and a candidate to continue in that role. This factual situation was presented to the Supreme Court in Ocala Star-Banner Co. v. Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971), decided on the same day as Roy. In reasserting the position taken in Roy, the court stated "that a charge of criminal conduct against an official or a candidate, no matter how remote in time or place, is always 'relevant to his fitness for office' for...

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