Reilly v. Gillen

• Decision Date: 25 November 1980
• Parties: Robert E. REILLY, Plaintiff-Respondent, v. Peter J. GILLEN, Jr. and Patricia Gillen, Defendants-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 321

176 N.J.Super. 321

423 A.2d 311

Robert E. REILLY, Plaintiff-Respondent, v. Peter J. GILLEN, Jr. and Patricia Gillen, Defendants-Appellants.

Superior Court of New Jersey, Appellate Division.

Argued Nov. 3, 1980.

Decided Nov. 25, 1980.

Peter R. Bray, Paterson, for defendants-appellants (Cole, Geaney, Yamner & Byrne, Paterson, attorneys).

Jeffrey M. Garrod, Newark, for plaintiff-respondent (Orloff, Lowenbach, Stifelman & Siegel, Newark, attorneys).

Before Judges SEIDMAN, ANTELL and LANE.

The opinion of the court was delivered by

ANTELL, J. A. D.

Defendants appeal from a judgment in libel after a jury verdict awarding plaintiff $5,000 compensatory damages jointly as to both defendants and $3,500 in punitive damages individually as to each defendant.

In the spring of 1977 plaintiff was running for reelection as councilman-at-large in the Township of West Milford. The election was held on May 10, 1977, and plaintiff received the lowest total of votes out of four candidates. On the Saturday before the election hand-addressed envelopes were mailed to an undetermined number of voters in which were contained two Xerox copies of an article which had appeared in the Paterson Morning Call in 1954. The article, with underlinings added by hand, read as follows:

The Curtiss-Wright Corporation has filed a $50,000.00 suit in Hudson County Superior Court against Robert Reilly, of Macopin Rd., Newfoundland, and McDonough-Lydon Manufacturing Co., Inc. of Union City on charges of conspiracy and violation of the New Jersey Corruption of Employes Law.

The suit says that Reilly was employed in the manufacturing-engineering department of Wright Aeronautical Division where he acquired knowledge of Wright's needs for special packing material for parts of engines made for the Air Force.

Through his position with Wright, the Curtiss-Wright Corporation charges, Reilly assisted in preparing or prepared design(s) for packing in such a way that McDonough's product was specified as to exclude products of other suppliers. It is also alleged that, during this same time, Reilly received from McDonough-Lydon, and kept, commissions and other payments and became a director of McDonough, unknown to Curtiss-Wright and contrary to his duties and obligations.

The complaint also charges that the preparation of designs by Reilly, the specification of McDonough's product and the payments by McDonough to Reilly were the result of a conspiracy between them to assure the ever increasing use of McDonough's product and to the exclusion of competition. It is further charged that the conspiracy was carried on for the benefit of the defendants and to the detriment of Curtiss-Wright and eventually to the U. S. Government.

In addition to demanding payments for damages resulting from the conspiracy, Curtiss-Wright also demands an accounting of all monies paid by McDonough to Reilly and damages resulting from alleged violation of the New Jersey Corruption of Employes Law.

Reilly, a special process engineer and member of the Local 300 AUW-CIO, was discharged by Wright Aeronautical in September 21.

One copy of the article was enlarged and underlined as indicated above; the other copy duplicated the original size and was not underlined. Of critical importance herein is that the mailing failed to indicate that ultimately the complaint was voluntarily dismissed, that plaintiff was exonerated and eventually invited to return to his employment with Wright-Aeronautical. Moreover, the article contained factual errors in that plaintiff was neither an engineer nor was he involved in packaging. In addition, the complaint did not allege that plaintiff's conduct was detrimental to the United States Government.

The evidence abundantly supports the conclusion that defendants were responsible for the mailing. Mr. Gillen admitted planning, since February 1977, to distribute the article a few days before the election along with a letter addressed to the issues in the campaign. He further conceded that he was the one who underlined the words on the enlarged copy of the article. He was also aware that the article said nothing about plaintiff's subsequent vindication and that the timing of the planned distribution would preclude any rebuttal by plaintiff. Despite the foregoing concessions, defendant denied actually disseminating the article. However, a handwriting expert testified that the address on one of the envelopes containing the article matched a sample of Gillen's handwriting, and that the addresses on five other envelopes matched the handwriting of a sample of Mrs. Gillen's handwriting. Furthermore, two other candidates in the May 1977 election testified that Gillen had approached them about his plan and that they had advised him against it.

Plaintiff had personal knowledge of at least 300 voters who had received the mailing. He was able to document 55 who had given him their envelopes. According to plaintiff and witnesses he produced, the general reaction of the community was surprise and disappointment at what was perceived as plaintiff's dishonest and unpatriotic conduct. He and his family were socially ostracized and he was forced to discontinue certain valued associations. As a further result he sold his home and moved from the township in September 1978.

Plaintiff attributed the tactic to defendant Peter Gillen's desire for political revenge. In 1975, when plaintiff and Gillen were fellow councilmen, Gillen threatened to "get" plaintiff when he failed to vote for Gillen's choice for township attorney and again when plaintiff did not support Gillen's position on a zoning matter.

Any question about Peter Gillen's knowledge of the misleading and untrue character of the article is dispelled by the fact that earlier in 1975, when the two were still political allies, the circumstances of the 1954 incident involving Curtis-Wright were disclosed to Gillen. Gillen had questioned plaintiff concerning the matter and after plaintiff explained how he had been fully exonerated of wrongdoing Gillen indicated that he was satisfied.

Defendants argue that the trial judge erred in ruling that the truth of the alleged libel must be assessed as of the time of the republication in 1977, rather than in 1954 when the article appeared in the newspaper. Specifically, they challenge the judge's decision to permit plaintiff to prove his vindication in the 1954 civil action, and to let the jury consider that vindication in weighing the truth of the 1977 publication. They also protest the trial judge's denial of their post-trial motions on this ground.

In his written decision responding to defendants' motion for summary judgment, the judge ruled that "the veracity of the alleged defamatory statement must be evaluated as of the time of alleged publication by the defendant in this case, i. e., 1977." (Emphasis in original). Thus it maintained that whether the 1954 article accurately reported the contents of the complaint was irrelevant; rather, at issue was whether "events which occurred subsequent to the original newspaper publication altered the meaning of the admittedly true statement." (Emphasis in original). The court added that defendants' underlining of the words "corruption" and "U. S. Government" might properly be construed by the jury as affecting the truth of the 1977 republication.

In accordance with the foregoing, plaintiff testified at the trial to the dismissal of the suit, the invitation to resume his employment and the apology given him by plaintiffs in that action. In his jury charge the trial judge said that in deciding...