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LAMELZA v. BALLY'S PARK PLACE

February 6, 1984

George J. LAMELZA, Jr.
v.
BALLY'S PARK PLACE, INC.



The opinion of the court was delivered by: WEINER

 WEINER, District Judge.

 This is a diversity action arising out of an incident that allegedly occurred on April 4, 1983 at Bally's Park Place Casino in Atlantic City, New Jersey. The plaintiff, George J. Lamelza, Jr., alleges in his amended complaint that Bally employees defamed him, served him a contaminated drink, and libeled him by circulating his picture to other casinos.

 Defendant, Bally's Park Place, Inc., has filed a motion for summary judgment pursuant to Rule 56 of Federal Rules of Civil Procedure. For the reasons which follow, we grant the motion of the defendant for summary judgment.

 To prevail upon a motion for summary judgment the moving party must conclusively demonstrate to the court's satisfaction that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law, Fed.R.Civ.P. 56(c), Major's Furniture Mart, Inc. v. Castle Credit Corp., Inc., 602 F.2d 538, 539 (3d Cir.1979); Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 784 (3d Cir.1978). We must view the evidence in the light most favorable to the party opposing the motion. Bishop v. Wood, 426 U.S. 341, 347 n. 11, 96 S. Ct. 2074, 2079 n. 11, 48 L. Ed. 2d 684 (1976); United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Drexel v. Union Prescription Centers, Inc., supra, at 784.

 It is clear in this case that there is no genuine issue of material fact.

 The facts of the case can be summarized as follows:

 Plaintiff contends that on April 4, 1983 he and his friend, Girard Molettiere, visited Bally's Park Place Casino in Atlantic City. They sat down at a blackjack table and began to play. After several hands the cards were shuffled, at which time another customer at the table questioned the dealer as to why the dealer cut the cards in an unfamiliar manner. The dealer replied that there was a "card counter" at the table and indicated in the direction of the plaintiff. The customer became abusive towards the plaintiff, and asked another unidentified Bally employee why "card counters" were allowed to play. The employee remarked "He's scum" and walked away. It was after this exchange that the plaintiff left this blackjack table, and went to a second table. At the second table nothing was said to the plaintiff, but because the cards were again cut in an unfamiliar way, the plaintiff decided to leave.

 During the evening the plaintiff was served Coke that "allegedly tasted funny." Plaintiff states in his deposition that he experienced stomach pain much later in the evening. The pains disappeared by morning and he sought no medical attention.

 The plaintiff alleges that on May 19, 1983, he was at the Claridge Hotel and Casino in Atlantic City. He contends that his photo was circulated to the Claridge by Bally's. He was supposedly verbally harassed by Claridge employees but he was allowed to play until he decided to leave.

 Our first consideration must be what substantive law is to be applied to these facts. Since this is a diversity case, the choice of law principles of Pennsylvania are to be followed in selecting the appropriate substantive law. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S. Ct. 1020, 85 L. Ed. 1477 (1941).

 Pennsylvania uses a hybrid approach to conflict of law questions, requiring that a court decide which state, "has the greater interest in the application of its law . . . ." Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854 (1970).

 The jurisdictions to be considered on the defamation issue are Pennsylvania, the home state of the plaintiff and New Jersey, the state of defendant's principal place of business, and the place where the alleged defamatory remarks were made, and also the location of the alleged libelous circulation of the plaintiff's photo.

 Given the nature of the remarks, "card counters" and "scum"; the fact of the extensive casino industry in Atlantic City and New Jersey's interest in it; the fact that the harm, if any, to the plaintiff was likely to be felt at the casino itself and the fact that this was an oral rather than a written ...


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