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ILLARIO v. FRAWLEY

February 16, 1977

Robert Illario, Plaintiff
v.
George Frawley, et al., Defendants


Stern, D.J.


The opinion of the court was delivered by: STERN

Robert Illario was appointed to the salaried position of Business Representative of Local 825 A, B, C, D of the International Union of Operating Engineers (hereinafter Local 825) on June 14, 1971. In 1974 he was elected to a three-year term as Vice President of the same Local. Illario's career as a labor leader was interrupted by his indictment by a New Jersey state-wide grand jury on October 30, 1974. The indictment charged Illario with two counts of bribery, in violation of N.J.S.A. 2A:93-6. It alleged in Count One that Illario

 
. . . did willfully, knowingly, and corruptly receive, offer to receive, and promise to receive money, that is, the sum of five thousand dollars ($5,000.00), from Edward O. Davis, an officer of Ropark Concrete Company, Incorporated, as a bribe, present and reward to obtain, secure and procure services, permission, approval, and other acts and things connected with and appertaining to offices and departments of the government of the Township of Woodbridge, that is, issuance of a building permit to Ropark . . .,

 and in Count Two that Illario committed a similar offense with regard to a Certificate of Occupancy for the same structure.

 Illario entered a plea of not guilty to the charges. The case was moved for trial in January 1976. The State's case included numerous tape recordings of conversations between Davis and Illario, made with Davis's consent. After some fourteen days of trial, but before the close of the State's direct case, Illario entered into a plea bargain disposing of the pending bribery indictment. Under the terms of the plea bargain Illario waived grand jury indictment and permitted the State to file an Accusation charging that he

 
. . . did knowingly with intent to cheat Edward O. Davis, an officer in the Ropark Concrete Co., Inc., obtain money by means of false statements and representations that he would aid the said Edward O. Davis in expediting the issuance of a building permit for Ropark Concrete Co., Inc. in the Township of Woodbridge, in the county aforesaid . . .,

 in violation of N.J.S.A. 2A:111-1. Illario pleaded guilty to the Accusation. In return, the State agreed to dismiss the pending indictment and to take no position at sentencing. Illario was sentenced to a term of three months' imprisonment, the execution of which was suspended. He also was placed on probation for a period of one year or until repayment of $2,500 to Davis, whichever event occurred sooner. The bribery indictment was dismissed.

 Several months after sentencing the United States Department of Justice communicated with the International Union and Local 825. The Department notified both organizations that it considered Illario to be barred by Title 29 U.S.C. § 504 from continuing to serve as a union official. Illario was immediately removed from his positions as Vice President and Business Representative of Local 825. Illario then brought suit against the President of Local 825, Local 825 itself, the International and the Department of Justice. He sought a declaratory judgment that the provisions of § 504 did not apply to his conviction, and requested reinstatement with back pay.

 Early District Court cases divided on the propriety of the exercise of jurisdiction over similar lawsuits. See, e.g., Strauss v. I.B.T. et al., 179 F. Supp. 297, 299 (E.D. Pa. 1959). The issue was resolved in favor of jurisdiction under Title 28 U.S.C. § 1337 in Serio v. Liss, 300 F.2d 386, 387 (3rd Cir. 1961), a position to which the Court of Appeals adheres. Bachowski v. Brennan, 502 F.2d 79, 82-83 (3rd Cir. 1974), rev'd on other grounds sub nom. Dunlop v. Bachowski, 421 U.S. 560, 44 L. Ed. 2d 377, 95 S. Ct. 1851 (1975). Despite Serio, some courts have refused jurisdiction when similar lawsuits were tendered by the union and the affected official in a collusive manner. The appearance and actual participation of the United States defendant in the instant lawsuit, however, presents the issues in an adversary context. Compare Teamsters Local 513 v. Wojcik, 325 F. Supp. 989 (E.D. Pa. 1971). *fn1"

 Title 29 U.S.C. § 504 provides as follows:

 
§ 504. Prohibition against certain persons holding office; violations and penalties
 
(a) No person who is or has been a member of the Communist Party or who has been convicted of, or served any part of a prison term resulting from his conviction of, robbery, bribery, extortion, embezzlement, grand larceny, burglary, arson, violation of narcotics laws, murder, rape, assault with intent to kill, assault which inflicts grievous bodily injury, or a violation of subchapter III or IV of this chapter, or conspiracy to commit any such crimes, shall serve --
 
(1) as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer, or other employee (other than as an employee performing exclusively clerical or custodial duties) of any labor organization, or
 
(2) as a labor relations consultant to a person engaged in an industry or activity affecting commerce, or as an officer, director, agent, or employee (other than as an employee performing exclusively clerical or custodial duties) of any group or association of employers dealing with any labor organization,
 
during or for five years after the termination of his membership in the Communist Party, or for five years after such conviction or after the end of such imprisonment, unless prior to the end of such five-year period, in the case of a person so convicted or imprisoned, (A) his citizenship rights, having been revoked as a result of such conviction, have been fully restored, or (B) the Board of Parole of the United States Department of Justice determines that such person's service in any capacity referred to in clause (1) or (2) would not be contrary to the purposes of this chapter. Prior to making any such determination the Board shall hold an administrative hearing and shall give notice of such proceeding by certified mail to the State, county, and Federal prosecuting officials in the jurisdiction or jurisdictions in which such person was convicted. The Board's determination in any such proceeding shall be final. No labor organization or officer thereof shall knowingly permit any person to assume or hold any office or paid position in violation of this subsection.
 
(b) Any person who willfully violates this section shall be fined not more than $10,000 or imprisoned for not ...

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