Gierbolini Rosa v. Banco Popular de Puerto Rico, Civil No. 93-2102 (JAF).

• Decision Date: 28 June 1996
• Docket Number: Civil No. 93-2102 (JAF).
• Citation: 930 F. Supp. 712
• Parties: Ruben O. GIERBOLINI ROSA, et al., Plaintiffs, v. BANCO POPULAR de PUERTO RICO, Defendant.
• Court: U.S. District Court — District of Puerto Rico

930 F. Supp. 712

Ruben O. GIERBOLINI ROSA, et al., Plaintiffs, v. BANCO POPULAR de PUERTO RICO, Defendant.

Civil No. 93-2102 (JAF).

United States District Court, D. Puerto Rico.

June 28, 1996.

COPYRIGHT MATERIAL OMITTED

Benny Frankie Cerezo, San Juan, PR, for Plaintiffs.

Ricardo L. Ortiz-Colon, Cesar T. Alcover, Fernando Van Derdys, Fiddler Gonzalez & Rodriguez, San Juan, PR, for Defendant.

OPINION AND ORDER

FUSTE, District Judge.

Plaintiffs, Carmen Nidia Gierbolini-Marrero, her husband, Rubén Oscar Gierbolini-Rosa, and their children, Oscar, Carlos Rubén, Ricardo José, and Nirin Mirnel, have filed suit against defendant, Banco Popular de Puerto Rico, for damages arising from alleged defamatory statements allegedly made by Banco Popular to the Puerto Rico Department of Treasury and the United States Bankruptcy Court. Having reviewed plaintiffs' motion, defendant's opposition, the Puerto Rico Civil Code, and jurisprudence of the Puerto Rico Supreme Court, we conclude that plaintiffs have failed to adduce sufficient evidence of the variety specified in Fed. R.Civ.P. 56 to withstand defendant's motion for summary judgment. Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Lipsett v. University of Puerto Rico, 864 F.2d 881 (1st Cir.1988).

I. Facts

For twenty-five years, Carmen Nidia Gierbolini-Marrero served as the Platform Officer at the Coamo branch of Banco Popular, where she oversaw daily, routine operations. In early 1992, the bank conducted an investigation into complaints of unauthorized withdrawals from the accounts of bank customers. As a result of this investigation, and despite her claim of innocence, the bank fired Mrs. Gierbolini, along with several bank cashiers. Due to pressing economic obligations arising from the loss of her job, Mrs. Gierbolini and her husband filed for bankruptcy under Chapter 13 of the Bankruptcy Code.

In January 1993, defendant filed a return of information with the Puerto Rico Department of Treasury for $95,387.22 in deferred compensation accruing in favor of Mrs. Gierbolini as a result of the termination in 1992. The check voucher of the check deposited with the Bankruptcy Court clearly states that the payment to the court was related to check No. 1-801-043898, dated August 7, 1992, payable to Carmen Gierbolini. On January 12, 1993, Paulette Lavergne, Esq., also filed an unsecured, non-priority proof of claim for $100,000, on behalf of Banco Popular, against the bankruptcy estate for unliquidated damages or "defalcation" of defendant's funds. On February 24, 1993, the bank deposited the $95,387.22 deferred compensation with the Clerk of the Bankruptcy Court, subject only to the bank's proof of claim.

The plaintiffs contend that the information return on Puerto Rico Department of Treasury Form 480.6 is defamatory because the monies were actually deposited with the Bankruptcy Court in 1993 and not 1992. Plaintiffs also claim that the proof of claim for unliquidated damages or "defalcation" is defamatory and has damaged the reputation of Mrs. Gierbolini such that she and the rest of her family have been the subject of derisive remarks by neighbors, acquaintances, anonymous callers, and classmates. She claims that this approbation has left her "psychologically unwilling and unable to obtain employment." She estimates her damages at no less than $3,000,000.

Rubén Oscar Gierbolini also claims to have suffered mental and physical damages in the amount of $1,000,000 as a consequence of the ill-repute allegedly cast upon the family by the bank's filing of the information return with the Puerto Rico Treasury and the proof of claim with the Bankruptcy Court. Likewise, Oscar, Carmen Nidia's eldest child, was allegedly so distressed by this turn of events that he had to leave college and divorce his wife. The other children, allegedly subject to the derisive comments of classmates, claim to have experienced severe mental anguish. Ricardo José, for example, claims to have been so troubled by these derisive comments that he had to drop out of high school. Each of the children estimate their damages at $25,000.

II. Applicable Law

A. Information Returns

The Puerto Rico Tax Code requires that certain payments to individuals or corporations in excess of $500 be reported in full compliance with applicable regulation by information return to the Department of Treasury, on Form 480.6, before February 28 of the subsequent year. 13 L.P.R.A. § 3147 (1976 & Supp.1995). The regulation approved by the Secretary of Treasury clearly states when an amount is deemed paid in order to require the filing of the information return. Puerto Rico Treas.Reg. § 3147-1(d), Puerto Rico (CCH) ¶ 13-503 (1993), states as follows:

(d) For the purposes of a return of information, an amount is deemed to have been paid when it is credited or set apart to the taxpayer without any substantial limitation or restriction as to the time or manner of payment or condition upon which payment is to be made, and which is made available to him so that it may be drawn at any time, and its receipt brought within his own control and disposition.

Id.; See similar disposition in 26 C.F.R. § 1.6041-1(d) and the Internal Revenue Code, 26 U.S.C. § 6041.

In turn, Puerto Rico Treas.Reg. § 3147-2(a), Puerto Rico (CCH) ¶ 13-503 (1993), provides as follows:

(b) Amounts distributed or made available in any calendar year under an employees' trust governed by the provisions of sec. 165, or under an annuity plan to which art. 22(b)(2)-5 relates, to a beneficiary shall be reported to the extent such amounts are includible in the gross income of such beneficiary where the amounts so includible are $500 or more.

The purpose of information returns is to help the government locate and check upon recipients of income and amounts they receive. United States v. Haimowitz, 404 F.2d 38 (2d Cir.1968). The information return creates no tax obligations on the part of the taxpayer beyond what the taxpayer's particular tax status in a given year requires him to pay. The persons or entities making payments have no discretion, and should not evaluate the taxpayer's tax obligation. Their only duty is to report, leaving it to the government and the taxpayer to sort out their differences as to the taxable status of any income in any particular tax year.

B. Consignment

Lastly, we note that, regarding the effect of court consignment on Section 3147 reporting obligations, we must look, not only to the tax code, but also to the consignment and payment provisions of the Civil Code of Puerto Rico. In this jurisdiction, when a payor faces the quandary of having a monetary claim adverse to a payee, one way of both satisfying the payee's claim and protecting the payor's claim to payment is to deposit the payee's monies in court. The consignment serves the purpose of discharging the payment obligation. Sections 1130 to 1135 of the Civil Code of Puerto Rico, 31 L.P.R.A. §§ 3180-3182.

C. Proof of Claim in Bankruptcy

Section 501 of Title 11, U.S.Code, permits a creditor to file a proof of claim to state a legal interest in a bankruptcy estate prior to distribution or administration. 11 U.S.C. § 501 (1988). The proof of claim procedure compels a creditor to participate in the bankruptcy distribution or forfeit its claim. In re Diez, 45 B.R. 137 (Bankr.S.D.Fla.1984). A formal proof of claim must be filed with the court and, though less detailed than an ordinary civil pleading, has the characteristics of an ordinary pleading for disposition of a legal claim. See generally Fed.R.Civ.P. 8(a). Of course, the basis for the claim must be clearly stated. Fed.R.Bankr.P. 3001(a) and Official Form 10.

D. Puerto Rico Law on Defamation

Puerto Rico permits parallel actions for defamation under the Libel and Slander Act of 1902, 32 L.P.R.A. §§ 3141-3149 (1990), and Section 1802 of the Puerto Rico Civil Code, 31 L.P.R.A. § 5141. Puerto Rico has codified the basic features of the Anglo-Saxon common law governing claims of defamation with the Libel and Slander Act of 1902 (the Act). The codification includes the qualified common law privilege for communications made under an official duty or in the course of a judicial proceeding.¹ The Act also follows the common law distinction between libel per se and libel per quod, requiring, in the case of libel per quod, proof of innuendo and colloquium. Rivera v. Martínez, 26 P.R.R. 692 (1918). Where the defendant has made statements libelous per se, plaintiff need present no proof of reputational damage more than that defendant published the libelous writing to another. Bosch v. El Imparcial, 87 P.R.R. 269, 284 (1963).

Plaintiffs are at pains to explain, however, that they bring their action, not under the Libel and Slander Act of 1902, but under Section 1802 of the Civil Code, which authorizes a parallel suit for negligently inflicted injury. The Supreme Court of Puerto Rico has, indeed, recognized a cause of action under Section 1802, under principles of negligence, for damages suffered by those affected by defamatory communications. The modern development of Puerto Rico law on libel and slander has been under the Civil Code and not under the libel and slander statutes. Sociedad v. El Vocero, 94 J.T.S. 13 (1994). See also Héctor Pagés v. Manuel Feingold, 928 F.Supp. 148, (D.P.R.1996). This type of action in negligence covers damages for mental suffering experienced by the person of whom the defamatory remarks were made, as well as those of family members collaterally affected and who had no remedy under the Libel and Slander Statute of 1902. El Vocero, 94 J.T.S. 13, at 11503-05, citing Torres Silva v. El Mundo, 106 P.R.R. 581 (1977) (Official Translations); Colón v. Romero Barceló, 112 P.R.R. 718 (1982) (Official Translations). And, though it arises under Section 1802 of the Civil Code, defendant may claim the...