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Reversing a Lackawanna County trial judge, a Superior Court panel has unanimously held that a Scranton newspaper does not have to reveal its anonymous source for the purposes of a defamation action filed by two county officials who were reported as having stonewalled during a grand jury investigation into alleged illegal conduct at the local prison. In a June 2005 opinion, Lackawanna County Common Pleas Judge Robert A. Mazzoni argued that although the Pennsylvania Shield Law contains virtually no exceptions, “the public interest is better served by maintaining and enforcing the secret and confidential operation of the grand jury system.” But the members of the panel in Castellani v. The Scranton Times indicated that only the General Assembly may carve out such a clear exception to the Shield Law. They noted that the only relevant exception to the Shield Law – enunciated by the Pennsylvania Supreme Court in its 1987 decision in Hatchard v. Westinghouse Broadcasting Co. – allows media defamation plaintiffs to demand discovery of unpublished information, and even then only if the source is not personally identified. “While we are both mindful of and sympathetic to the concerns of the learned trial court regarding possible criminal violations of the grand jury process vis-�-vis the Shield Law privilege, we, like the trial court, are forbidden from reading into the Shield Law an exception neither enacted by the General Assembly nor found by the Supreme Court as a result of the developing body of law,” Senior Judge Zoran Popovich wrote. Popovich was joined by Judge Maureen Lally-Green. In a concurring opinion, Judge Debra Todd wrote that while “the public interest in grand jury secrecy will be vindicated only indirectly” via the Castellani plaintiffs’ defamation action, Pennsylvania courts might create an exception to the state’s Shield Law at the prompting of a criminal prosecution involving a grand jury leak. At the time of their December 2003 grand jury testimony, plaintiffs Randall Castellani and Joseph Corcoran were the Democratic majority commissioners of Lackawanna County and members of the county’s prison board, according to opinions filed in the case. An article that ran in the Times quoted an anonymous source who characterized the commissioners’ testimony before the grand jury as “considerably less than cooperative” and “vague, evasive and less than candid,” according to court documents. The article also quoted the source as saying: “The testimony really irritated the jurors. They were ready to throw them out. After months of hearing all kinds of detailed, specific information and testimony, they just had no tolerance for that kind of crap.” After the article appeared, the commissioners filed a petition for sanctions with the supervising judge of the grand jury, Bucks County Senior Judge Isaac Garb. The commissioners suspected the leak came from the Pennsylvania Attorney General’s Office. Garb denied the sanctions motion, finding the commissioners lacked standing to make such a request. However, Garb appointed a special prosecutor to press on with an independent investigation of the leak. Following that investigation, Garb issued a September 2004 report finding that the assertions in the article did not match the testimony transcripts. He accordingly found that “the source of the reporter’s information was someone not privy to the grand jury proceedings and, therefore, not someone in the Office of the Attorney General.” In the ensuing defamation case, Castellani and Corcoran relied on Garb’s findings to argue that the assertions made by the newspaper’s source were false and defamatory. They urged Mazzoni in a discovery motion to compel the newspapers to disclose the source’s identity. The newspapers countered that the Shield Law affords media outlets an absolute privilege protecting them from forced disclosure of confidential sources. In his June 2005 decision in Castellani, Mazzoni focused his analysis on the intersection between the state’s Shield Law and the confidentiality provisions of the grand jury process. Interpreting state case precedent on the Shield Law, Mazzoni found that the underlying purpose of the statute is to “promote the free flow of information to the media.” Still, he said, the Pennsylvania Supreme Court has regarded “the state interest in grand jury secrecy to be so important as to outweigh other competing constitutional or statutory rights.” When the purpose of the Shield Law “clashes with the need to enforce and protect the foundation of the grand jury purpose, the Shield Law should relinquish its priority,” Mazzoni wrote. “Affording the grand jury process its respect will empower the courts to protect the wide variety of interests that are expected to be safeguarded by the process.” Unlike other cases in which the anonymous source’s identity was protected, Mazzoni reasoned, Castellani does not involve reporter-source communications discussing a crime; rather, the communication itself is the crime. But the members of the panel responded that even revelations of a crime being committed do not warrant a piercing of the Shield Law. “The fact that a crime may have occurred by virtue of the alleged disclosure of certain grand jury testimony does not necessitate or empower this court to craft a new exception to the Shield Law,” Popovich wrote. Lead counsel for the Castellani media parties has been by W. Thomas McGough Jr. of Reed Smith in Pittsburgh. The plaintiffs have been represented by attorneys from Sprague & Sprague. Neither side immediately responded to calls seeking comment. (Copies of the 19-page opinion in Castellani v. The Scranton Times , PICS No. 07-0011, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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