PHILADELPHIA – A reputed member of Philadelphia’s organized criminal element who claims that a law enforcement officer-turned-author defamed him in his autobiography will potentially have a second opportunity to pursue a lawsuit on that charge per the order of a federal judge.
On July 24, U.S. District Court for the Eastern District of Pennsylvania Judge Gerald J. Pappert dismissed the lawsuit filed by plaintiff John C. Berkery Sr. against Melvin Ross Gudknecht without prejudice, giving him four weeks in which to correct the perceived deficiencies of the litigation and file an amended complaint.
In September 2017, defendant Gudknecht published "Working the Edge," an autobiography describing his career with the United States Organized Crime Strike Force, which was responsible for “investigating and prosecuting organized crime.” Berkery is mentioned in one section of the book, in the following passage:
“One day, John Berkery walked into the Strike Force office. Strike Force attorney (SFA) Robert Courtney called me out of my office to introduce me to him. He wanted to plead his case. What case? This guy had gall and a good intelligence grid….The bon vivant [Berkery] said, 'There were no embezzled union funds, Mel. No extortion, no mail fraud, or conspiracy. We incorporated and filed proper papers, all legal.' (This guy should be an attorney.) John Berkery had a colorful and checkered past. He was a 'man about town,' ;a bon vivant,' and a gadfly. He was also a member of the K&A Gang, located around Kensington and Allegheny Avenues. They were involved in burglaries, loan sharking, and drugs….[Berkery] had close ties with John McCullough and ties with Angelo Bruno and Ray Martorano. He worked closely with Scarfo, the southern faction of the Genovese family, the Greek mob, and the Jewish American criminals. He never got the film rights to the book. The film was never made. John fled the country to Ireland to avoid prosecution on drug charges involving two hundred gallons of P2P, the prime ingredient in making methamphetamine….Berkery was said to have IRA ties, too. With all the ties he had, I didn’t doubt it.”
As a result, Berkery claimed the comments in the book are false and accordingly asserted a claim for defamation per se under Pennsylvania law.
Pappert stated Berkery had twice sued other individuals for defamation for writing about his prior criminal conduct and associations.
In Berkery v. Kinney, Berkery sued Philadelphia Inquirer columnist Monica Yant Kinney, who wrote about Berkery’s criminal past and his efforts to prevent the publication of "Confessions of a Second Story Man: Junior Kripplebauer and the K&A Gang;" a book that included a discussion of Berkery’s alleged participation in the K&A Gang.
The Superior Court granted summary judgment in Kinney’s favor because Berkery “acknowledged six criminal convictions, including larceny, passing bogus traveler’s checks, attempted burglary of an unoccupied warehouse, assault and battery, and two drug offenses,” and thus “clearly qualifies as a limited-purpose public figure who must prove actual malice to recover in a defamation action.”
That court ruled he “had not done so by the requisite clear and convincing evidence standard and the Superior Court’s appellate division affirmed the trial court’s decision.”
Secondly, in Berkery v. Estate of Stuart, Berkery sued Temple University professor Lyle Stuart, who wrote a book about the K&A Gang. The appellate division again affirmed the trial court’s grant of summary judgment, holding that Berkery again qualified as a limited-purpose public figure because the issue had already been conclusively settled in Kinney, and there was no reason to “modify or depart from that conclusion.”
“As in Kinney, Berkery failed to present evidence showing the professor acted with actual malice in publishing the book,” Pappert said.
Pappert explained when a limited purpose public figure asserts a claim for defamation per se in Pennsylvania, they must plausibly allege “that the defendant acted with actual malice in publishing statements about them” – with actual malice happening when the statement is made “with knowledge that it was false or with reckless disregard of whether it was false or not.”
“As already established by the New Jersey courts, Berkery is a limited-purpose public figure, which requires him to allege that Gudknecht acted with actual malice when he described Berkery in his book. Issue preclusion bars ‘successive litigation of an issue of fact or law actually litigated and resolved in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context of a different claim,” Pappert said.
Pappert continued that preclusion was satisfied, due to prior New Jersey court cases which established Berkery as a limited-purpose public figure based on his criminal record and association with organized crime, resulting in final judgments against him in both the Kinney and Estate of Stuart cases.
“Berkery must accordingly allege sufficient facts from which the Court may reasonably infer that Gudknecht acted with actual malice when writing the passage at issue in his book. In his complaint, Berkery does not contend that Gudknecht acted with actual malice, let alone provide any factual support for such an allegation,” Pappert said.
In contrast, Berkery argued “actual malice need not be shown because the law presumes malice”, a perception that Pappert said was “incorrect.”
“To proceed with a defamation per se claim against Gudknecht, Berkery must allege sufficient facts which could show that Gudknecht either knew that the statements he wrote were false or had serious doubts about their veracity. The Court dismisses Berkery’s complaint. This dismissal is without prejudice to Berkery’s right to file an amended complaint to the extent that he can cure the defects noted above. If he can sufficiently allege that Gudknecht acted with actual malice, Berkery must file an amended complaint by Aug. 23,” Pappert concluded.
U.S. District Court for the Eastern District of Pennsylvania case 2:17-cv-05574
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com