Kotok Bldg. v. Charvine Co.
| Decision Date | 17 December 1981 |
| Citation | 183 N.J.Super. 101,443 A.2d 260 |
| Parties | KOTOK BUILDING, a New Jersey Corporation, Plaintiff, v. The CHARVINE COMPANY and Charles Curcio, Defendants. |
| Court | New Jersey Superior Court |
Lars S. Hyberg, Burlington, for plaintiff (Valore, McAllister, Aron & Westmoreland, Northfield, attys.).
Joseph P. Testa for defendants (Testa & Testa, Vineland, attys).
This case presents the question of the degree of particularity with which an action for libel or slander must be pleaded and whether this requirement has been relaxed by our modern practice. It necessarily requires an exploration into the issue of "fact pleading" versus "notice pleading."
The specific question presented is whether plaintiff, defendant in a counterclaim, is entitled to summary judgment on paragraph four of the second count of the counterclaim, which alleges:
Plaintiff has falsely and maliciously, and for the purpose of injuring the defendant/counterclaimant in his good name, fame and credit both as an individual and as a businessman, spoke (sic) of and concerning the said counterclaimant, in slanderous and vile names, and has defamed the reputation and name of said counterclaimant.
Plaintiff moves for summary judgment, principally upon the failure to recite the details of the alleged slander and its failure to indicate what damages plaintiff suffered as to its business reputation. Defendant argues that summary judgment is precluded by the existence of factual issues as to the circumstances of the alleged slander and as to the magnitude of counterclaimant's business losses.
The second count of the counterclaim fails to recite the allegedly defamatory words, the circumstances in which they were uttered, whether a third party heard them, and what damaging effect their utterance had upon defendant-counterclaimant's business or professional reputation. It is, in short, wholly conclusory. It is, therefore, fatally defective.
Regardless of the form of pleading, actions in defamation have traditionally been treated as sui generis. The common law pleading requirements of innuendo, while sometimes carried to an extreme degree, cf. McCuen adsm. Ludlum, 17 N.J.L. 12 (Sup.Ct.1839), require sufficient specificity to delineate the facts of the wrong complained of so that the case may be properly defended. Modern pleadings still require this, National Bowl-O-Mat Corp. v. Brunswick Corp., 264 F.Supp. 221, 226 (D.N.J.1967), Prosser, Torts (4 ed.), c. 19, § 111 at 746 et seq., a defamation case.
With the advent of our new and improved court system on September 15, 1948 the Supreme Court determined to overhaul and refurbish the rules of practice and procedure in this state. Following an intensive and dynamic effort by a group of task forces, what is now our current set of rules was adopted. Basically they follow the Federal Rules of Civil Procedure then in existence, with certain modifications, some because of the fact that state courts operate in some areas while the federal courts do not and some simply because of a difference in philosophy between the Supreme Court and the framers of the federal rules.
One of the significant differences between the federal and state rules is in the philosophy of pleading. Federal Rule 8(a) requires that a pleading which sets forth a claim for relief should contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Rule 8(a) was never adopted in New Jersey. In drafting R.R. 4:8-1, the precursor to the current R. 4:5-2, the New Jersey Supreme Court used as its model, not the Federal Rules of Civil Procedure, but rather the Practice Act of 1912, Schnitzer and Wildstein, 2 N. J. Rules Service, Annotations and Comment, AIV-134, 135. Schnitzer and Wildstein distinguish the federal system of "notice" pleading from the New Jersey system of "cause of action" pleading:
The rival systems of practice contrast "notice" pleading with "cause of action" pleading. Under the former, a general statement of the nature of the plaintiff's grievance will suffice to inaugurate the controversy. Under the latter method, the failure of the complaint to state a "cause of action" may terminate the litigation before it can be ascertained whether the plaintiff has a "cause of action". (2 Schnitzer and Wildstein, AIV-134, 135; emphasis in the original.)
It must be reiterated that the New Jersey Rules did not spring forth fully fashioned as did Minerva from the brow of Jove. That they were indeed the product of a group of task forces working strenuously over a ten-month period, see Vanderbilt, "The New Rules of the Supreme Court on Appellate Procedure," 2 Rutg.L.Rev. 1 (1948); Woelper, "The Judicial Conference and Its Role in the Rule Making Process," 5 Rutg.L.Rev. 344 (1951), and Schnitzer "Civil Practice and Procedures," 6 Rutg.L.Rev. 351, 357 (1951).
As evidence of the adherence to "cause of action" pleading in New Jersey, Schnitzer and Wildstein cite Grobart v. Society for Establishing Useful Mfrs., 2 N.J. 136, 65 A.2d 833 (1949), for the following rules:
(1) the object of pleadings is to define the issues to be tried; (2) the new state practice, in common with the former procedure, requires the statement of a cause of action; the principal change is that the statement is now to be simple, concise and direct; and (3) the essential elements of the statement of a cause of action, both as to substantive law and pleading, remain the same as at common law. (2 Schnitzer and Wildstein, AIV-134, 135)
In Grobart, plaintiff mill owners sued for damages which plaintiffs claimed had resulted from the transfer of corporate defendant's property. Upon judgment on the pleadings for defendants, plaintiffs appealed on the ground that they should have been allowed to amend their already amended complaint. Holding that plaintiffs' amended complaint could not be enlarged to include a new cause of action, the court stated:
... the objective of reaching an issue of law or of fact in two or at the most three simple pleadings has been attained, but not at the sacrifice of stating the elements of a claim or of a defense. They remain the same as at common law as a matter of substantive law as well as of good pleading ... The common law has been saved from the excesses of special pleading and especially its verbosity and technicalities, and nowhere more effectively than in New Jersey, but in the process the substantive law has not been changed. On the contrary, it has been preserved and our procedure has been made to serve the ends of substantial justice, not by abandoning stating the essentials of a cause of action or of a defense, but by doing so in "simple, concise and direct terms...." (2 N.J. at 150-52, 65 A.2d 833; emphasis supplied)
Grobart is not only sound but illustrative, first of the morass into which the former practice had sunk and also into which the present practice will reimbed itself unless checked. Cf. Horton v. A.I.M.S., 145 N.J.Super. 550, 554, 368 A.2d 426 (Law Div.1976). We must never become slaves to a system of pleading, but liberality must not degenerate into anarchy.
The conclusory allegation in paragraph four of the second count of defe...
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