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Berkery v. Kinney

December 18, 2007


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5139-06.

The opinion of the court was delivered by: Parker, J.A.D.



Argued October 17, 2007

Before Judges Parker, R. B. Coleman and Lyons.

In this defamation case, plaintiff John C. Berkery, Sr., appeals from an order entered on October 20, 2006 granting summary judgment in favor of defendants dismissing the complaint with prejudice. We affirm.

This case arises out of two articles written by defendant Monica Yant Kinney and published in the Philadelphia Inquirer.*fn1

The following is a summary of the facts relevant to this appeal. Temple University Professor, Allen Hornblum, authored a book entitled Confessions of a Second Story Man: Junior Kripplebauer and the K & A Gang. The book focused on a criminal gang that operated in the 1950s and early sixties and named plaintiff as a member of the gang who participated in a number of crimes, including the 1959 "Pottsville heist," a robbery allegedly committed by the K & A Gang. The articles written by Kinney addressed plaintiff's attempts to stop Hornblum from publishing the book and his defamation suit against Hornblum.

In this appeal, plaintiff argues that (1) the trial court "made no definitive finding as to whether or not plaintiff was a 'first amendment limited-purpose public figure;'" (2) plaintiff "has been a private individual with a right to privacy and not a public figure, limited-purpose public figure, or so-called 'involuntary' limited-purpose public figure;" (3) the case of Sisler v. Gannett Co., 104 N.J. 256 (1986), "was a totally wrong-headed application of the United States Supreme Court's standards for applying the malice standard;" (4) plaintiff "shunned, rather than courted the press;" and (5) defendant Kinney falsely accused plaintiff of being "a thug, thief, burglar, mob associate, lawbreaker, and murderer, statements that are libelous per se."

In his brief, plaintiff acknowledged six criminal convictions, including larceny, passing bogus traveler's checks, attempted burglary of an unoccupied warehouse, assault and battery, and two drug offenses. He characterized these offenses as "minor scrapes with the law," and objected to Kinney's characterization of him as a "career criminal." Plaintiff argues that Hornblum's book and Kinney's articles overlook the fact that he has "completed college, gone on to obtain a Master's Degree in English & [sic] Publishing from Rosemont College, a year of law school at Regent University in Virginia Beach, and a post-baccalaureate paralegal degree from Manna College in Jenkintown, Pa." Plaintiff claims that the two articles written by Kinney and published in the Philadelphia Inquirer contain numerous fallacies, constitute an invasion of his privacy, an intrusion upon his seclusion and intentionally inflicted emotional distress upon him.

In granting summary judgment, the trial judge found that there was no invasion of privacy because all of the information in the articles was either obtained through observation of plaintiff by Kinney during an interview with plaintiff or through public sources. The court noted that "there were very few comments [relating] to [plaintiff's] private life, other than to call [him] a suburban dad." In the trial court's opinion, those comments were not defamatory. The trial court further noted that the one word it found problematical was "thug" used in the first sentence of the first article: "John Berkery was never a typical street thug." The court indicated, however, that the word was used in the past tense and referred to plaintiff's earlier conduct. The judge further indicated that "[a]ctual malice is a tough standard to meet. It's so tough that clearly and convincingly is the standard [rather than] a preponderance of the evidence."

In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed. 2d 686 (1964), the United States Supreme Court held that recovery for defamation is limited by the First Amendment requirement that public officials or public figures prove actual malice to recover damages. A public figure "may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth." Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed. 2d 789, 807 (1974) (citing New York Times, supra, 376 U.S. at 279, 84 S.Ct. at 726, 11 L.Ed. 2d at 702).

In Gertz, the United States Supreme Court distinguished between an all-purpose public figure who has achieved "such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts" and a limited-purpose public figure who 'voluntarily injects himself or is drawn into a particular public controversy.'" 418 U.S. at 351, 94 S.Ct. 3013, 41 L.Ed. 2d at 812. The Supreme Court noted that:

It may be possible for someone to become a public figure through no purposeful action of his own . . . those [classified] as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they ...

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