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Henry V. Vaccaro Construction Co. v. A.J. Depace Inc.

Decided: November 26, 1975.

HENRY V. VACCARO CONSTRUCTION CO., PLAINTIFF,
v.
A.J. DEPACE, INC., ANTHONY J. DEPACE, INDIVIDUALLY, VAN HOUTEN ASSOCIATES, A CORPORATE BODY AND HENRY DIMATTEO, DEFENDANTS



Patrick J. McGann, Jr., J.s.c.

Mcgann

This is a motion by all defendants to dismiss count 7 of the complaint which charges trade libel, on the ground that it fails to state a cause of action upon which relief can be granted.

Defendants contend that the face of the complaint reveals that the statutory period of limitations (N.J.S.A. 2A:14-3) had expired before the complaint was filed. That statute was not pleaded as an affirmative defense.

Before addressing the merits of defendants' argument a procedural issue must be decided. Is the failure to raise the statute of limitations as an affirmative defense in the answer a bar to raising it on motion to dismiss the complaint for failure to state a claim?

R. 4:5-4 mandates that affirmative defenses, including that of statute of limitations, be pleaded separately, or be waived. The defense is not waived, however, where it appears on the face of the complaint. In that case the defense may be raised by motion for failure to state a claim upon which relief can be granted under R. 4:6-2(e). Prickett v. Allard , 126 N.J. Super. 438 (App. Div. 1974), aff'd o.b. 66 N.J. 6 (1974).

Thus, in Rappeport v. Flitcroft , 90 N.J. Super. 578 (1966), the Appellate Division dismissed a personal injury claim which arose on November 14, 1962. The complaint was filed on December 3, 1964. Although defendant did not plead the two-year statute of limitations, it was raised later on a motion for judgment on the pleadings. The Appellate Division stated that "where the bar of the statute of limitations appears on the face of the complaint, it may be asserted

as a failure to state a claim upon which relief can be granted." 90 N.J. Super. at 581.

Likewise, in Prickett v. Allard, supra , a tax foreclosure action accruing in 1949 was not filed until 1972 -- outside the 20-year limitations period. Though no answer was filed, the trial court dismissed the action and the Appellate Division affirmed the dismissal based on Rappeport , stating that the defense was "not waived by defendant's failure to plead it." 126 N.J. Super. at 440.

In the instant action the seventh count of the complaint alleges trade libel "[d]uring the course of the project construction." From paragraph 6 of count 1, the project completion date was set at September 1971. Thus, the falsehoods allegedly uttered by defendants were made prior to September 1971. Since the complaint was not filed until June 6, 1973, if a cause of action had accrued and the one-year statute of limitations for libel and slander is applicable, the complaint would, on its face, fail to state a cause of action upon which relief could be granted. We proceed to the merits of the argument.

Is the one-year statute of limitations for libel and slander applicable to a trade libel action?

In dealing with the instant complaint it must first be recognized that the tort of trade libel is but one part of a rather amorphous concept. As Dean Prosser has said in an article appearing in the New Jersey Bar Journal , "Injurious Falsehood: The Basis of Liability," 83 N.J.L.J. 1 (1960)

There is a tort which passes by many names. Sometimes it is called slander of title, sometimes slander of goods, or disparagement of goods, or trade libel, or unfair competition, or interference with prospective advantage, or whatever else the fancy of the particular Judge or writer may lead to select. Under whatever name, the essentials of the tort appear to be the same. It consists of the publication, or ...


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