Clemente v. Espinosa, Civ. A. No. 89-2021 (JED).

• Decision Date: 19 October 1990
• Docket Number: Civ. A. No. 89-2021 (JED).
• Citation: 749 F. Supp. 672
• Parties: Nicholas A. CLEMENTE, Plaintiff, v. Arnaldo F. ESPINOSA, Defendant.
• Court: U.S. District Court — Eastern District of Pennsylvania

749 F. Supp. 672

Nicholas A. CLEMENTE, Plaintiff, v. Arnaldo F. ESPINOSA, Defendant.

Civ. A. No. 89-2021 (JED).

United States District Court, E.D. Pennsylvania.

September 27, 1990.

Reconsideration Denied October 19, 1990.

Alan M. Bredt, Philadelphia, Pa., for plaintiff.

Reeder R. Fox, Craig F. Turet, Duane, Morris & Heckscher, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

DuBOIS, District Judge.

Plaintiff Nicholas A. Clemente ("Clemente") instituted this action against defendant Arnaldo F. Espinosa ("Espinosa") on March 1, 1989 in the Philadelphia Court of Common Pleas, alleging causes of action for defamation and intentional infliction of emotional distress. The case subsequently was removed to this Court pursuant to its diversity jurisdiction under 28 U.S.C. § 1332.

A Motion to Dismiss for, inter alia, lack of personal jurisdiction over Espinosa, as well as for failure to state a claim for defamation and/or intentional infliction of emotional distress, was filed by defendant on March 28, 1989. This Court denied the Motion without prejudice to defendant's right to challenge the legal sufficiency of plaintiff's claims by Motion for Summary Judgment or at trial.

After a series of discovery disputes, defendant submitted on December 4, 1989 a Motion for Summary Judgment with respect to both the defamation and intentional infliction of emotional distress claims. On January 29, 1990 the Court granted the defendant's Summary Judgment Motion with regard to the intentional infliction of emotional distress claim. Respecting the defamation claim, defendant's Motion was denied.

Commencing on July 31, 1989 the case was tried before the Court sitting without a jury. For the reasons set forth in the following findings of fact and conclusions of law, the Court finds that (1) defendant published the statements alleged, (2) the statements were capable of defamatory meaning, (3) the statements were slanderous per se, and (4) plaintiff is entitled to recover an award of compensatory damages in the amount of $10,000.

I. FINDINGS OF FACT AND DISCUSSION

A. Background

Plaintiff Clemente is a Philadelphia attorney engaged in the practice of law as a member of the firm of Nicholas A. Clemente, P.C. Beginning in 1976, Clemente was retained by the trustees of the prepaid legal services fund for the United Food and Commercial Workers Union Local 1776 in Philadelphia, Pennsylvania ("Local 1776"). Under the contract, Clemente was to provide prepaid legal services to union members and their dependents. These services were financed by employer contributions to the Southeastern Pennsylvania Legal Services Plan, the prepaid legal services fund affiliated with Local 1776 ("the 1776 Legal Fund"). From 1982 to 1988, Clemente also provided prepaid legal services to employees and employee dependents of the United Food and Commercial Workers Union affiliated Local 919 in Hartford, Connecticut ("Local 919"). These services were paid for by employer contributions to two of Local 919's employee benefit funds, known as the Employer's (Food) Legal Services Trust Fund and the Employers' (Non-Food) Legal Services Plan (collectively "the 919 Legal Funds").

Defendant Espinosa is the chief executive officer of Local 919 — a position he has held since 1954.¹ N.T., August 1, 1990, at 13. As chief executive officer of Local 919, Espinosa works with leaders of other locals, including affiliated locals in New England and Local 1776 in Philadelphia. N.T., August 1, 1990, at 13. He also serves as a trustee and a member of the Board of Trustees of the 919 Legal Funds. N.T., Aug. 1, 1990, at 19.

Wendell W. Young, III ("Young") at all pertinent times served as the chief executive officer of Local 1776. He continues to hold that position. N.T., July 31, 1990, at 14.

Prior to the events at issue, Clemente, Espinosa and Young enjoyed a close professional and personal affiliation. Young's association with Clemente began in 1956. N.T., July 31, 1990, at 14, 98. His relation with Espinosa dates back to approximately 1962. N.T., July 31, 1990, at 14; August 1, 1990, at 14. Espinosa and Clemente met between ten and fifteen years ago. N.T., July 31, 1990, at 97. It was not until 1987 and 1988 that events caused the relationships to sour.²

B. The Alleged Defamations

Clemente alleges four acts of defamation by Espinosa occurring between January and May of 1988. According to plaintiff, these statements were published to Young, and charged that plaintiff was connected with the Mafia, was wired and was an informant for the Government, as follows:

(1) The Florida Defamation

From January 27, 1988 to February 2, 1988 various officials from different UFCW locals convened in Florida for a UFCW International Advisory Committee Meeting. Both Espinosa and Young were in attendance. According to the testimony of Young, it was at this meeting that Espinosa stated that Clemente was an "informant for the Government" and that Clemente was "wired". N.T., July 31, 1990, at 17, 18.

(2) The Palm Springs Defamation

A second meeting of UFCW locals took place in Palm Springs, California between April 12 and April 19, 1988. Young testified he was told by Espinosa at this meeting that Clemente was "connected with the Mafia, that he's got connections with the Mafia." N.T., July 31, 1990, at 26.

(3) The Philadelphia Defamation

On May 7, 1988, Espinosa, Young and Clemente met in Atlantic City, New Jersey to discuss a planned "Buy America" campaign designed to promote particular union concerns. As part of the campaign, the parties intended to hold a "Buy America" concert featuring certain well-known entertainers. Clemente, who purportedly has contacts in the entertainment field, introduced Young and Espinosa to two men — Eliot Weisman ("Weisman") and Jilly Rizzo ("Rizzo"). Clemente suggested that Weisman and Rizzo could help attract celebrity participation.

Following the Atlantic City meeting, Espinosa telephoned Young on several occasions in Philadelphia. Young testified that during these discussions, Espinosa told Young that Espinosa "felt more than ever that Clemente had connections or was connected with people of unsavory character," and that Espinosa "absolutely felt that Clemente was the cause of his problems."³ N.T., July 31, 1990, at 32.

(4) The Myrtle Beach Defamation

The final alleged act of defamation occurred between May 20 and May 25, 1988 at another UFCW meeting in Myrtle Beach, South Carolina. At that time, Young testified that Espinosa showed him highlighted portions of a book about the Mafia entitled Vengeance Is Mine: Jimmy "the Weasel" Fratianno Tells How He Brought the Kiss of Death to the Mafia. Both Young and Espinosa testified that Espinosa highlighted certain passages pertaining to both Weisman and Rizzo. N.T., July 31, 1990, at 34; August 1, 1990, at 67. One of the marked pages in particular shows a 1978 profile photograph of Eliot Weisman, taken while under arrest. The caption under the photograph describes Weisman as "the mob's front man," and as part of the "Premier Crew" — "ten men charged with financing the Premier Theaters through mob banking and stock frauds and later diverting theater profits to enrich themselves." M. Zuckerman, Vengeance Is Mine (1987). Espinosa told Young that these passages were "basically proof that ... there's Mafia connections in some of the dealings that Clemente's involved with and that he's wired and that Young had better stay away from him." N.T., July 31, 1990, at 34.

Defendant steadfastly maintains that he did not publish any of the alleged defamatory statements regarding the plaintiff. N.T., August 1, 1990, at 52, 57, 63-64. He admits to showing Young the book Vengeance Is Mine, but states that he did so without any oral reference to the plaintiff. Espinosa testified that he "just told Young to look at the people who were at the meeting in Atlantic City." N.T., August 1, 1990, at 69.

Defendant did not attempt to prove the truth of the statements attributed to him. See 42 Pa.C.S.A. § 8343(b)(1); Walder v. Lobel, 339 Pa.Super. 203, 488 A.2d 622, 625-26 (1985) (Where defamation action is brought by private person, presumption of falsity exists, although defendant may prove truth as an absolute defense.) Nor did he claim the existence of a privilege which might exempt him from liability. See, e.g., Agriss v. Roadway Exp., Inc., 334 Pa.Super. 295, 483 A.2d 456, 463 (1984) ("Liability for publication of defamatory matter may be defeated by a privilege to publish the defamation.").

It is clear to the Court that there is no easy way to reconcile the conflicting testimony of Young and Espinosa. Young told the Court that Espinosa published statements concerning Clemente. Espinosa swore that he did not. The only third-party testimony relating to whether the statements were made was that of Mr. Herman Wooden ("Wooden"), secretary/treasurer of Local 1776. Called by plaintiff as a rebuttal witness, Wooden testified that he attended the Palm Springs meeting in April of 1988 and that he was present when Espinosa stated that Young would be "surprised to find out that Mr. Clemente is an informant for the Government...." N.T., August 1, 1990, at 128.

Based upon an assessment of the credibility of the witnesses presented, the Court finds that Espinosa did tell Young that Clemente was an "informant for the Government" and was "wired". The Court also finds that Espinosa told Young that Clemente was "connected with" or had "connections with the Mafia." Lastly, the Court finds that Espinosa showed Young highlighted portions of the book Vengeance Is Mine, that he did so with the intention of communicating to Young that Clemente was associated with known Mafia figures, and that he told Young that the book "proved it."⁴

II. CONCLUSIONS OF LAW AND DISCUSSION

A. Plaintiff's Claim of Defamation

Having determined that defendant made the statements alleged by plaintiff, the next question in an action for defamation is whether...