Sprague v. Walter
| Decision Date | 30 September 1986 |
| Parties | , 13 Media L. Rep. 1177 Richard A. SPRAGUE v. Greg WALTER, Kent Pollock, Howard Shapiro, Eugene L. Roberts, Jr., Creed C. Black, Michael Pakenham, Aaron Epstein and Philadelphia Newspapers, Inc. and Knight Newspapers, Inc. Appeal of PHILADELPHIA NEWSPAPERS, INC. |
| Court | Pennsylvania Superior Court |
Samuel E. Klein, Philadelphia, for appellant.
James E. Beasley, Philadelphia, for appellee.
Before BROSKY, POPOVICH and MONTGOMERY, JJ.
This is an appeal from a judgment of 4.5 million dollars entered against Philadelphia Newspapers, Inc. (PNI) 1 following a trial by jury in which the then First Assistant District Attorney of Philadelphia, Richard A. Sprague, was found to be defamed. We reverse in part and affirm in part.
PNI asks us to review the order of the trial court, affirmed by a court en banc, denying its motion for a new trial and/or judgment non obstante veredicto.
We will first deal with the denial of a new trial. The standard on which our review is premised in granting or refusing a new trial is one in which we will not reverse absent an abuse of discretion or error of law which controlled the outcome of the case. Allison v. Snelling & Snelling, Inc., 425 Pa. 519, 229 A.2d 861 (1967).
We begin with a recitation of the facts sufficient to dispose of the claim raised and reserve until later a more detailed accounting upon review of the judgment n.o.v. issue.
In September of 1972, Greg Walter was adjudged guilty in municipal court of violating Pennsylvania's wiretap law (18 P.S. § 3742) for recording phone conversations while on the staff of the Evening Bulletin. The prosecutor was Richard A. Sprague, who recommended a sentence of fifteen days to one year imprisonment. An appeal was taken to Common Pleas Court, where, sometime in 1973, a stipulation was entered into, the sum and substance of which is not herein revelant.
Because of Walter's criminal status, his duties were curtailed by the Bulletin. This led to his securing employment with The Philadelphia Inquirer, which is published by PNI. One of Walter's first assignments occurred in the early part of 1973. An article by Walter appeared in a series of stories published by The Inquirer linking Sprague to illegal activity engaged in by members of the Pennsylvania State Police (then headed by Rocco Urella, Sr.). This supposed association was made by the discovery of an alias ("Nicholas Pratko") purportedly used by Sprague and exposed him to attack by impugning to him knowledge of and complicity in the activity, i.e., the wiretapping of the Pennsylvania Crime Commission's phones during its investigation of alleged corruption in the Philadelphia police department.
During the period the "Pratko" stories were being released, Walter also was working with another Inquirer reporter (Kent Pollock) in the investigation of a 1963 homicide of one John Applegate. Sprague, as Chief of Homicide for the District Attorney's Office, handled the matter which culminated in the two suspects (Rocco Urella Jr. and his classmate, Donald Scalessa) being released.
With the resurrection of the Applegate case and Sprague's refusal to submit to questioning by Walter and Pollock because of asserted statements attributed to them that they were out to "smear" him, The Inquirer decided to proceed to publish a number of articles in April of 1973 (credited to Walter and Pollock) detailing, and placing under scrutiny, Sprague's role in light of his "very close" ties with Rocco Urella, Sr., the father of one of the suspects.
Sprague filed a complaint in trespass contending that he had been libelled by the various articles and editorials appearing in The Inquirer. Following a trial which lasted approximately eight weeks and generated over four thousand pages in testimony, a jury awarded Sprague 1.5 million dollars in compensatory damages and 3 million dollars in punitive damages. This timely appeal was filed thereafter.
The first issue centers upon the propriety of the trial court's determination that PNI did not have the right to refuse to disclose its sources of information, and, upon failing to do so, all information related thereto was excluded from the jury's consideration.
The facts leading up to the exclusion start with Kent Pollock testifying on direct examination that the first he learned of Applegate was from a "source" who was very close to the Urella family. At this point in his testimony, the trial court interjected, "Who?" Counsel for Sprague seized the opportunity to seek a response to the question, while PNI's counsel objected. The matter was taken up in chambers.
Counsel for PNI argued that under Pennsylvania's Shield Law (42 Pa.C.S. § 5942(a)) Pollock should be allowed to testify fully as to the information garnered from the source without having to divulge his/her identity, nor should any adverse inference be drawn from his exercise of this statutory and First Amendment privilege. Further, PNI's counsel contended that, to the extent that the exercise of this privilege would hinder the plaintiff's ability to scrutinize the genuineness of the source, a balance had to be struck in favor of preserving the identity of the source, otherwise the purpose of the Shield Law, i.e., to encourage the free flow of information, would be undermined.
Counsel for the plaintiff, on the other hand, envisioned the Shield Law as no more than an investigative tool, the effect of which dissipated once the information conveyed by the confidential source was placed in print. Also, he felt that if a source signed an affidavit in support of the information given, this constituted a waiver of the privilege. Lastly, counsel for the plaintiff asserted that the remedy for failure to reveal a source should be an "adverse inference charge" by the court.
In response to the assertions of counsel, the trial court entered the following order:
... the Court determines that in this case the Shield Law is inapplicable and that the defendants have no constitutional right to refuse to reveal its sources. Therefore, it is ordered that the defendant disclose its sources.
If the defendant chooses not to reveal their sources, it is precluded from defending this action on the grounds that the articles in suit, or any portion thereof, were based upon information received from a reliable, but undisclosed source.
In order to implement this Order, all evidence of what information defendants received from allegedly reliable, but undisclosed sources, shall be excluded.
PNI's attempt to secure extraordinary relief from the Supreme Court of Pennsylvania was "denied without prejudice" in a per curiam order. The trial resumed thereafter, and the instances in which PNI's witnesses (Pollock and Robert J. Terry, also a reporter for The Inquirer ) invoked the privilege of the Shield Law, so as not to reveal the identity of their sources, occurred during their cross-examination and numbered 26 in total.
It was a month-and-half into the trial, and two witnesses short of PNI completing its case, before the court and the parties discussed in chambers what evidence would be kept from the jury's consideration because of the June 13, 1983 order relating to the Shield Law. After this conclave, the jury was instructed to disregard the testimony of certain witnesses because of sources that were not disclosed. The court also told the jury that the defendant(s) did not have a right to refuse to reveal its sources, and, for doing so, "all evidence of what information defendants received from allegedly reliable, but undisclosed sources, shall be excluded."
The court proceeded to particularize the information that the jury was to ignore in its deliberations for the failure of the witnesses to disclose their sources in direct violation of his order:
First--Prosecution Memorandum (Exhibit P-3-2). This was testified to by Pollock as having been obtained from a source he refused to reveal. (This document was sent by the Pennsylvania Attorney General's Office to the District Attorney of Montgomery County, which was the location of a motor lodge where the State Police wiretapping of the Pennsylvania Crime Commission took place; and the first Pollock learned of the name "Pratko"--which was associated with Sprague, was from this instrument.)
Second--Any information with respect to the statement in The Inquirer article of April 1, 1973 that read: "Subsequent to the homicide, Sprague boasted to at least one of his friends that he 'could get anything I want from Rocco Urella,' according to a sworn statement by the friend obtained by The Inquirer."
Third--The language in the April 1, 1973 article to be deleted from consideration read: "Sprague's involvement with Urella Sr. became evident four days after the wiretaps were discovered when The Inquirer learned[ ] Sprague spent an entire day in conference with Urella at Urella's Delaware County home."
Fourth--Pollock's testimony of a contact close to Urella family who told him certain alleged things. Refusal to reveal source required exclusion of any evidence in respect to this statement.
Fifth--Terry's testimony that he had a source check police records to determine whether Applegate had criminal record was likewise to be removed from the jury's consideration.
At the close of the case, the court repeated its Shield Law directive and instructed the jury to "strike" from its consideration certain portions of the evidence. Numerous objections were lodged and denied; in particular, we cite counsel for the plaintiff's request that, as to the Shield Law, the jury should have been charged that "their failure to reveal sources would warrant a finding that there were ... no sources; and therefore, that would constitute known falsity."
After the jury entered a verdict in favor of Sprague, timely post-verdict motions were denied, and judgment was...
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