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Berkery v. Estate of Stuart

February 19, 2010

JOHN C. BERKERY, SR., PLAINTIFF-APPELLANT,
v.
ESTATE OF LYLE STUART, BOTH INDIVIDUALLY, AND AS PRESIDENT OF BARRICADE BOOKS, INC., ALLEN M. HORNBLUM, BARNES & NOBLE, INC., AMAZON.COM, INC., BARRICADE BOOKS, INC. (NY), BARRICADE BOOKS, INC. (NJ), NATIONAL BOOK NETWORK, INC., ROWMAN & LITTLEFIELD PUBLISHING GROUP, INC., BORDERS, INC., BORDERS GROUP, INC., DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-2676-06.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted December 1, 2009

Before Judges Carchman, Lihotz and Ashrafi.

In a second attempt to obstruct the publication of a book that is critical of his conduct, plaintiff John C. Berkery appeals from the summary dismissal of his action against defendants - author Allen M. Hornblum, and distributors Barnes & Noble, Inc., Amazon.Com, Inc., Barricade Books, Inc. (NY), Barricade Books, Inc. (NJ), National Book Network, Inc., Rowman & Littlefield Publishing Group, Inc., Borders, Inc. and Borders Group, Inc. In granting summary judgment, Judge Fernandez-Vina concluded that no reasonable jury could conclude that these defendants acted with actual malice.

On appeal, plaintiff argues that the judge erred in concluding that plaintiff did not establish actual malice on the part of the author and distributors. He contends that several statements that were made about him in the book are patently false, and that the author is a "reckless researcher and a proven liar."

Previously, in Berkery v. Kinney, 397 N.J. Super. 222 (App. Div. 2007), certif. denied, 194 N.J. 445 (2008) (Berkery I), plaintiff sued a journalist and her publisher regarding statements made in newspaper articles about plaintiff's efforts to stop the same publication involved in this litigation -Confessions of a Second Story Man: Junior Kripplebauer and the K&A Gang (Confessions), a book about the activities of a group of criminals in Philadelphia during the 1950s and 1960s. In Berkery I, we affirmed the trial court's summary dismissal of plaintiff's complaint, holding that plaintiff had failed to submit sufficient evidence from which a jury could conclude the defendants acted with actual malice.

Although plaintiff argues that the legal standard set forth in Berkery I should not be applied here, we disagree. Here, plaintiff failed to present clear and convincing evidence from which a reasonable jury could have concluded that defendants acted with actual malice. His proffered proofs, which consisted of self-serving denials and irrelevant accusations, failed to satisfy his burden. We now affirm.

These are the facts adduced from the expansive record on the motion for summary judgment. Hornblum is an assistant professor of geography and urban studies at Temple University. In 2001, he began research for a book about the K&A Gang, a group of burglars that operated in the Kensington and Allegheny section of Philadelphia in the 1950s and 1960s. To that end, he attempted to find as many "old-time members" of the gang as possible.

Hornblum contacted plaintiff and arranged to meet him for lunch at a local restaurant.*fn1 To Hornblum's surprise, plaintiff arrived at the restaurant accompanied by a man whom Hornblum did not know and who made Hornblum feel uncomfortable. At that point, Hornblum decided that it was not necessary to discuss the K&A Gang with plaintiff since plaintiff would only be a "peripheral figure" in the book.

Plaintiff nevertheless learned of Hornblum's plan to write Confessions. In a February 27, 2001 letter, he warned Hornblum to "scrap this mischievous project" or plaintiff would "reap the rewards litigation will surely bring." Notwithstanding this entreaty, Hornblum continued with his research, interviewing several people who claimed to have knowledge of plaintiff's involvement with the K&A Gang. He also amassed a large number of newspaper articles, government documents and police records containing information about plaintiff.

Confessions was initially published by the Temple University Press (the Press) in 2005. On May 28, 2005, plaintiff wrote to that publisher's editor-in-chief, demanding that his name and likeness be removed from the book and threatening legal action if they were not. In response to this letter, the Press put a hold on all future shipments of the book and recalled copies that had already been shipped. Ultimately, it terminated its publishing agreement with Hornblum.

After Hornblum's agreement with the Press fell through, he reached an agreement with defendants Lyle Stuart and Barricade Books, which published Confessions in early 2006. In February 2006, plaintiff sent letters to defendant booksellers, informing them that he had filed a civil complaint against Hornblum and demanding that they stop distributing the book immediately.

Plaintiff filed an amended complaint against Hornblum; book distributors/sellers Barnes & Noble, Inc., Amazon.Com, Inc., National Book Network, Inc., its parent, Rowman & Littlefield Publishing Group, Inc., and Borders Group, Inc.; and publishers Estate of Lyle Stuart, Barricade Books, Inc. (New York) and Barricade Books, Inc. (New Jersey), asserting numerous causes of action based on allegedly defamatory statements set forth in Confessions, in newspaper articles concerning the book and on the Internet website of Barricade Books.

In his amended complaint, plaintiff alleged that he was defamed on at least twenty of Confessions' 273 pages. He cited the following thirteen "facts" set forth in the book as being malicious falsehoods: plaintiff attempted to murder Robert Poulson in Camden County in 1960; police investigating the assault on Poulson found blood on the back seat of plaintiff's car; police arrested plaintiff and charged him with shooting Poulson; police released plaintiff because they could not "make the charges stick"; six months after Poulson was shot, plaintiff was arrested for the murder of Vincent Blaney; plaintiff was the most likely "candidate" in connection with the car-bombing death of Richard Blaney in 1961; plaintiff robbed the home of a Pottsville, Pennsylvania, coal mine operator and "got away" with $478,000; after plaintiff successfully had his robbery conviction set aside, the only reason plaintiff was not retried was that local authorities "had had enough"; plaintiff was the "main nexus between Irish mobsters and the Mafia"; in 1987 plaintiff was convicted of distributing twenty-four pounds of methamphetamine and possession of more than 200 gallons of phenyl-2-proponane (P-2-P); plaintiff is "particularly dangerous for he combines intelligence and street smarts with a reputation for muscle"; plaintiff has "a cunning and sophistication that has little equal in the Philadelphia criminal community"; and plaintiff was recently released from prison and is now "back on the street."

Plaintiff filed a motion for summary judgment, which was denied. Defendants then moved for summary judgment, which was partially granted, and the judge issued an order dismissing all claims against Hornblum and the book distributors. He also granted summary judgment in favor of the publishers as to all claims arising from statements in Confessions but denied summary judgment as to statements made in the publishers' newsletters and on their website. Plaintiff's subsequent motion for reconsideration was denied, but the parties filed a consent order dismissing the complaint as to the publishers by reason of a settlement.

In support of his motion for summary judgment, plaintiff submitted excerpts from Confessions; correspondence between himself and defendants; court decisions reversing his convictions for robbery and drug trafficking; court records containing his criminal history; the deposition and interrogatory responses of Hornblum; a certification of Jane Golding, a Temple librarian, that impugned Hornblum's research techniques; certifications from himself disputing the accuracy of Hornblum's research; and copies of his resume and college diplomas.

In denying plaintiff's motion, the judge noted that the majority of plaintiff's allegations "as to Mr. Hornblum... are that he's shown himself to be someone devoid of character, lacking any sort of credibility, a purposeful liar, and manipulator." The judge gave little credence to the allegations set forth in Golding's certification, however, observing that as Hornblum's former girlfriend, she had several motives for criticizing him.

Reasoning that plaintiff achieved pervasive fame and notoriety as the result of his involvement with methamphetamine trafficking and his conspiracy with organized crime figures, the judge concluded that plaintiff is a limited-purpose public figure. He further found that under the standard applied to limited-purpose public figures in defamation actions, plaintiff could prevail only if he showed that defendants acted with actual malice. He concluded that summary judgment in favor of plaintiff was inappropriate because plaintiff had failed to establish that there was no issue of material fact with regard to defendants' malice.

In support of their motion for summary judgment, defendants submitted materials used by Hornblum as information sources. These submissions included a presentence report prepared for the United States District Court, Eastern District of Pennsylvania, in 1987 that lists plaintiff's convictions going back to age nineteen; two reports of the Pennsylvania Crime Commission, in which plaintiff's name figures prominently; excerpts from three books about organized crime in Philadelphia that mention plaintiff's association with the Mafia; hundreds of newspaper articles about plaintiff's criminal acts; FBI files containing plaintiff's criminal history and an interview with a mob informant who implicated plaintiff in a murder; handwritten notes of Hornblum's ...


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