In re Pereira, Bankruptcy No. 82-2179-JG

• Citation: 44 BR 248
• Decision Date: 28 November 1984
• Docket Number: Bankruptcy No. 82-2179-JG,Adv. No. A 83-0084.
• Court: United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
• Parties: In re Alfred PEREIRA, Debtor. Anthony L. MATERIA, Plaintiff, v. Alfred PEREIRA, Defendant.

44 B.R. 248 (1984)

In re Alfred PEREIRA, Debtor Anthony L. MATERIA, Plaintiff, v. Alfred PEREIRA, Defendant.

Bankruptcy No. 82-2179-JG, Adv. No. A 83-0084.

United States Bankruptcy Court, D. Massachusetts.

November 28, 1984.

Richard N. LaSalle, Fall River, Mass., for plaintiff.

Joseph A. Callahan, Fall River, Mass., for defendant.

MEMORANDUM

JAMES N. GABRIEL, Bankruptcy Judge.

The plaintiff's Complaint seeks a determination that a judgment for libel he obtained against the debtor in state court in the sum of $15,000 is nondischargeable pursuant to 11 U.S.C. § 523(a)(6). The plaintiff alleges that the debt arose out of the debtor's willful and malicious injury. The debtor's Answer denies that the plaintiff's claim arose out of willful and malicious injury. A trial was held at which time the parties agreed to submit to this Court the transcript of the proceedings in the Superior Court. The debtor, Alfred Pereira, also testified.

The alleged libel arises out of a letter addressed to teamster members dated December 1, 1977, signed by four teamsters, belonging to Local 526, including the debtor, Pereira, which solicited votes in their favor for the upcoming union election. The letter criticized the plaintiff, Anthony Materia, the secretary and chief official of the union, who was running for re-election. Concerning Materia, the letter stated in pertinent part:

Is the "experienced slate" doing a job for you or are they doing a job on you? The following statements are true events that have taken place under the leadership of your "experienced slate". We would like you to judge for yourself just what kind of experience these people have.

As most of you know, and all of you should know, our union hall also houses a family restaurant and bar that is presently called the Silver Gull. At the election committee meeting on November 20th we requested that the Silver Gull be closed on December 11th, our election day. We were told that this could not be done because this was a private enterprise.

We would like to inform you that this "private enterprise" is owned by Anthony Materia, as is clearly stated in the enclosed copy of the City Hall record. Inquiry at City Hall disclosed the fact that they have no record of the name of the restaurant being changed from Alfredo\'s Restaurant to that of the Silver Gull, or that there has been any change in ownership; therefore all tax bills are sent to Anthony Materia. Mr. Materia would have us believe that Mr. Frederick Scuilli owns the restaurant. If this is true why did Mr. Materia have the power to fire him? Mr. Materia owns this restaurant and has been converting our union dollars into his own private business. This is a conflict of interest, misappropriation of union funds and gross misconduct in office. If elected we will do everything in our power to get our money back.

When you arrive at the union hall to vote on December 11th, take a good look around and notice how small our hall has become. Count how many air conditioners are on our union building to cool off the customers of the Silver Gull, for as you know, the rank and file members are on recess from monthly meetings during the months of June, July and August. We paid for these air conditioners and the electric bills to run them. Also, how many tables and chairs that were bought with the building are no longer in our hall?

Those of you who pay into the Anthony J. Materia Scholarship Fund know that this fund has been in effect for three years. Many of our members are paying two or three cents an hour for every hour that they work into this fund. The fact that it is only a few cents an hour doesn\'t mean much to you, but it becomes an astronomical figure at the end of each year when multiplied by the number of people in our union who are paying ask you to take the following into consideration: When is the last time you have received a financial report on this fund? What brother or sister Teamster member do you know of whose child has won a scholarship? How much are the fund administrators being paid for their services? It seems that the only people profiting from this fund are the administrators; therefore they are doing a job on you again.

Ask the "experienced slate" the following questions:

1. Why are Merit Dress truck drivers working for 80 cents an hour less than the National Freight Agreement calls for? Why did our secretary-treasurer tell the Merit drivers in front of their employer that they were overpaid and should take a cut in wages?

Five to six hundred of these letters were mailed and hand delivered to the union membership the day before the election. The Materia slate was defeated by the Huff slate by seventeen votes.

Prior to his defeat, Materia had been the secretary, treasurer, and chief officer of Teamsters Local 526 for many years. He was also one of the trustees of the union's health and welfare fund. In 1976 the health and welfare fund established a realty trust and purchased a building at 56 Water Street, Fall River, Massachusetts. The first floor of the building had previously housed a restaurant. The trustees voted to establish a restaurant for leasing in the building in order to bring in income for the expenses of the building. Prior to offering the restaurant for lease, the building trust, of which Materia was a trustee, selected and paid for improvements and fixtures, including air conditioners, for the restaurant. In the spring of 1976, the realty trust leased the restaurant to Fred Sciulli who established a restaurant known as Alfredo's. The arrangement was a tenancy at will for $100 a month. Materia's daughter and son were majority stockholders in the restaurant corporation. The restaurant was unsuccessful and closed in summer of 1976. In the fall of 1976 Materia signed a note to the First National Bank of Bristol. The loan proceeds were used to buy equipment for the restaurant. Materia stated that he borrowed the money personally in order to make the restaurant lease and premises more attractive to potential buyers. A financing statement concerning this loan transaction was recorded with the Fall River City Clerk on October 15, 1976. It states the debtor's name as "Materia, Anthony d/b/a Alfredo's Restaurant."

Upon the closing of Alfredo's, the union advertised the restaurant premises for lease. Two individuals, Crossley and Rebello entered into a written lease of the restaurant. Materia's daughter loaned them $5,000 to fund the purchase. They did business as The Silver Gull from 1976 to 1979 and were operating the restaurant at the time the subject letter was published.

Materia testified before the Superior Court that he never had any ownership interest in The Silver Gull or in Alfredo's.

Harold Huff was the author of the subject letter. He believed he was correct in stating that Materia was converting union dollars to his own use and was guilty of conflict of interest because of the financing statement which stated that Materia was doing business as Sciulli's. Two days prior to the election, Huff held a meeting at his home...