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January 6, 1987


The opinion of the court was delivered by: FULLAM


 This case is listed for trial commencing January 7, 1987. On December 17, 1986, the defendants filed a motion for summary judgment, to which plaintiff has now responded. Both sides have submitted extensive affidavits and evidentiary materials, but plaintiff nevertheless argues that the motion is "premature" (and, indeed, that it would be "premature" even to decide certain critical choice-of-law issues). It appears to be plaintiff's position that the defendants have improperly obstructed his discovery efforts, that he has recently obtained information suggesting the desirability of pursuing additional discovery, and that the imminent trial should, naturally, be postponed. If the suggested further discovery were relevant to the controlling issues on the summary judgment motion, I might well agree with plaintiff's counsel, notwithstanding the eleventh-hour nature of his application for continuance. The record of this litigation demonstrates that both sides have been playing close to the vest, and that defense counsel is probably more blameworthy than plaintiff's counsel.

 Plaintiff, Dennis Miele, is also engaged in the toxic waste disposal business, and has been for many years. The only direct reference to plaintiff in the book has to do with an alleged proposal by the operator of a dump in Georgia to set up a waste-disposal incinerator on a deserted Caribbean island, if a sufficient volume of waste materials could be obtained to justify the expense. According to the book, he initially negotiated with Richard Miele and one or more of his firms, but they thought his probable costs would be too high. But, according to the book, he remained confident that

"he could strike another deal with Richard Miele's brother, Dennis, the operator of Applied Technology of Toms River, New Jersey."

 The authors further state that plaintiff "reportedly disposed of the toxic waste for about 40 companies, and at the time was looking for a new facility to replace a South Carolina site that had recently been closed."

 Plaintiff is not in fact the brother of Richard Miele, but all of the other statements about plaintiff are literally true: there were negotiations with the Georgia operator, plaintiff is the owner of Applied Technology in Toms River, New Jersey, and has indeed disposed of toxic wastes for more than 40 companies.

 It would not have been illegal to dispose of toxic wastes at a Caribbean location not subject to United States law, and the book cannot reasonably be viewed as charging the plaintiff with any impropriety or illegality insofar as that particular proposal is concerned. Plaintiff argues, however, that the entire thrust of the book is to "expose" corruption and mob involvement in the entire toxic waste disposal industry; that the book casts an unwarranted shadow of impropriety on everyone involved in that industry; and that the false statement that plaintiff is the brother of the notorious Richard Miele renders the work defamatory. That is, although it would not ordinarily defame a person to be erroneously identified as the brother of a non-relative, when the latter is portrayed as a noted criminal and the two are involved in a business which is characterized as 90% illegal and permeated with corruption and mob influence, the innuendo is actionable.

 I regard this as a very close question, but in ruling on a motion for summary judgment, close questions should be resolved against the movant. I therefore proceed on the assumption that plaintiff was defamed by defendants' publication. But the decisive questions have to do with whether plaintiff must prove actual malice in order to succeed in this action, and, if so, whether there is a genuine issue of fact as to the existence of actual malice.

 This is a diversity case. I therefore apply Pennsylvania's choice-of-law principles. It is clear that, in this case, a Pennsylvania court would apply New Jersey law: plaintiff is a New Jersey citizen and resident; the harm occasioned by dissemination of the book occurred principally in New Jersey; and the business activities which were the subject of the alleged defamation occurred mostly in that State. At the very least, it is clear that Pennsylvania has no particular interest in the matter. Arguably, perhaps, New York law might apply -- the headquarters of the publisher, in which the editorial and promotional decisions were made -- but New York law on the pertinent issues is essentially the same as that of New Jersey, so I need not pursue the matter.

 It is also clear that, under the law of New Jersey, plaintiff is required to prove actual malice. This is not because plaintiff is a public figure -- obviously, he is a private citizen, engaged in private pursuits -- but because, under New Jersey law,

". . . when a private person with sufficient experience, understanding and knowledge enters into a personal transaction or conducts his personal affairs in a manner that one in his position would reasonably expect implicates a legitimate public interest with an attendant risk of publicity, defamatory speech that focuses upon that public interest will not be actionable unless it has been published with actual malice." Sisler v. Gannett Co., 104 N.J. 256, 516 A.2d 1083, 13 Media L.R. 1577, 1586 (N.J. Supreme Ct. 1986).

 In Sisler, the defendant published a series of newspaper articles concerning alleged irregularities in a bank's lending policies. Plaintiff, a former officer of the bank, was falsely charged with having illegally approved certain loans; actually, the loans in question were entirely legal and proper. Recovery was ...

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