Petition for Writ of Certiorari — Gellert v. Eastern Air Lines, Inc.

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85-10odh |

Supreme Court, U.S.

DEG. 18 1985

JOSEPH F. SPANIOL, JR.

CASE NO. A-256 CLERK

in the

Supreme Court

of the

United States

OCTOBER TERM, 1985

DANIEL GONZALES GELLERT,

Petitioner,

EASTERN AIR LINES, Inc.,

Respondent,

PETITION FOR WRIT OF CERTIORARI ON APPEAL

FROM THE SUPREME COURT OF FLORIDA

DANIEL GONZALES GELLERT

in the proper person

P.O. 370

Cocoa Beach, FI. 32931

Tele: 305-784-2769

CERTIFICATE OF SERVICE:

THORNTON, DAVID & MURRAY P.A.

attorneys for the respondent

Suite 100,

2950 S.W. 27th Avenue

Miami, Fl. 33133-3704

QUESTIONS PRESENTED

Can a corporation claim First Amendment rights,

or are these rights limited to a good cause and

limited to an individual? Can these rights be granted

if for the wrong reason such as making fun of a

citizen, or for the censure of free speech? Are

there limits to personal opinion in private matters,

and in cases where the public good in transportation

may be adversely effected?

Can a citizen claim privacy in a libel case when his

confidential medical records are published, which

were unknown to the reader of the newspaper,

and have been resolved in his favor prior to the

publication?

TABLE OF CONTENTS

Page

ETOP ENP «ck cs Si cai vii

QUESTIONS PRESENTED FOR REVIEW .......... 2

WHETHER:

THE RESPONDENT'S FIRST AMENDMENT

RIGHT IS SUPERIOR, WHEN UTILIZED TO

CENSURE THE FREE SPEECH OF THE

ie Eee} ee Me ee Ne OAR ey 2

THERE IS A FIRST AMENDMENT

PROTECTION FOR AN INTENTIONAL LIE,

OR A MISSTATEMENT OF FACT.......... 3, 13, 16

THERE IS A FIRST AMENDMENT PRO-

TECTION, WHEN A PERSONAL OPINION IS

PUBLISHED AS A JOKE TO MAKE FUN OF

THE PETEE MIM 5 oe iran ss See eee oe

FIRST AMENDMENT RIGHT TO OPINION HAS

ANY LIMITATIONS, SUCH AS FALSELY

SHOUTING FIRE, OR CALLING AN

OPERATIONAL PILOT MENTALLY INCOM-

PETENT WHILE FLYING. .............. a. hee

THERE IS A CONFLICT IN THE RESPONDENT'S

RIGHT TO HIS FIRST AMENDMENT OPINION,

AND THE PETITIONER'S RIGHTS UNDER

THE COMMERCE CLAUSE OF THE CON.-

yee iis y 3) nner reree tres Ate ran elf 7

TABLE OF CONTEN'S (Continued)

Page

THERE IS A REDUCED CONSTITUTIONAL

RIGHT IN THIS PRIVATE MATTER. ......... 7, 23

THERE ARE SUPERIOR RIGHTS UNDER THE

CONSTITUTION, WHICH ARE NOT AVAILABLE

pk eS the

THERE IS A CONFLICT UNDER THE

PETITIONER'S RIGHTS TO PRIVACY IN HIS

MEDICAL FILE, AND THE RESPONDENT'S

RIGHT TO OPINION UNDER THE FIRST

eek tac eng cas .. 9-10

STATEMENT OF THE CASE .................... 13

STATEMENT OF THE GROUNDS FOR INVOKING

So io 5 lnc ko 6k kb a4 ve cc aecee 15

JURY VERDICT AND APPEAL HISTORY ......... 24

CERTIFICATE OF SERVICE ............... err

oo 28

ill

TABLE OF AUTHORITIES

Cases

Bell v. Gellert,

469 So.2d 141 (Fla. 3DCA 1985)............

Cianci v. New Times Pub. Co.,

TE SUN rvs kc oe waa ob as ws

Clark v. American Broadcasting Co. Inc.,

ee Wt Oe CNN scesce divs oh saa as wees

Cowper v. Vannier,

156 N.E. 2d 761 (1959) .......... Pease

Dodi Publishing Co. v. Editorial America, S.A.,

385 So.2d 1369 (Fla. 1980)... ..

Dominguez v. Equitable Life Assur. Soc.,

438 So.2d 58 (Fla. 3DCA 1983).............

Dun & Bradstreet, Inc. v. Greenmoss Builders,

472 U.S. 86 L.Ed2d 593, 1053.Ct.... 2...

Eastern Air Lines, Inc. v. Gellert,

438 So.2d 923 (Fla. 3DCA 1983)............

Eastern Air Lines, Inc. v. Gellert,

431 So.2d 329 (Fla. 3DCA 1983). ..........

Eastern Air Lines, Inc. v. Gellert,

452 So.2d 570 (Fla. 3DCA 1984)... ....

Ford Motor Credit Co. v. Sheehan,

373 So.2d 956 (Pla. 1979) .................

TABLE OF AUTHORITIES (Continued)

Cases

Gellert v. Eastern Air Lines, Inc..

370 So.2d 802 (Fla. 3DCA 1979) cert. denied

381 So.2d 766 (Fla. 1980)

Gellert v. Eastern Air Lines, Inc.,

688 F.2d 723 (1982) ...

Gellert v. Eastern Air Lines, Inc..

466 So.2d mem 9 (Fla. 3DCA 1985)

Goldwater v. Ginzburg,

414 F.2d 324 (1969) .

Marcone v. Penthouse Intern. Magazine for Men,

754 F.2d 1072 (1985) .

McManus v. Doubleday & Co.. Inc.,

513 F.Supp. 1383 (1981)

Nat. Foundation for Cancer Res. v. Council of BBB,

705 F.2d 98 (1983) . .

National Rifle Ass'n v. Dayton Newspapers, Inc.,

555 F.Supp. 1299 (1983)

Neiman-Marcus Co. ». Lait,

107 F.Supp. 96 (1952) .

Nodar v. Galbreath,

429 So.2d 718 (Fla. 4DCA 1983)

462 So.2d 803 (Fla. 1984)

Pages

vii, 24

i i)

bho

OTHERS

Cases Pages

me, RU Me cca aasdacenenee 13, 14, 25

Constitution. Article I.Sec.8.....................4, 7, 26

Constitution, Amendment I.

Personal Opinion ......... SRN ENE vii, 2, 4, 5,

9, 10, 11,

14, 16, 21,

22, 23, 24, 25

Freedom of speech .................. oon MER, SOT

Petition the government for a redress

PPI ova casa yes cageen es 12

Federal Aviation Regulations .................

INTRODUCTION

This case involves a pro se appeal by Daniel Gonzales

Gellert, (*GELLERT”) from an adverse final judgement in a

defamation action against his employer Eastern Air Lines,

Inc. (“EASTERN”).

This matter was tried before a jury, which resulted in a

First Amendment right of the respondent to libel the petitioner

as a matter of a “personal opinion”.

“He's paranoid.

But why, I asked if you believe he is paranoid is he

allowed to fly Eastern Airlines passenger jets’?

It's awfully hard to fire anyone these days.

Anyway we have three of them in the cockpit.

Know what I mean’?

See: Gellert v. Eastern Air Lines, Inc., 466 So.2d mem 9

(Fla. 3DCA 1985).

This was affirmed per curiam by the district court, and

the Florida Supreme Court lacked jurisdiction to review.

The Record of Appeal before the district court is “R”, and

the Supreme Court is “R-S”. The trial transcript is designated

as “T” and plaintiffs (petitioner's) evidence as “P”, defendant's

(respondent’s) as “D”.

This was the second trial in this cause, and there is a

full and complete review of the Constitutional issue available

in: Eastern Air Lines, Inc. v. Gellert 438 So.2d 923 (Fla.

3DCA 1983)., as far as the debate on opinion.

There is no cross-appea! in this cause, therefore only

Constitutional issues which are properly referable to this

Court are presented for review.

The petitioner is an airline pilot with the rank of captain

and a pilot-in-ccommand under federal law.

vii

The petitioner testified during a “2! Jnal Transportation

Safety Board hearing in regard to his ow personal experiences

in the respondent's L101] aircraft, operating as flight 401;

which crashed in the Everglades near Miami, Florida and

killing 103 people.

While the petitioner was not in anyway involved in

that crash, nor was he on board; he did fly this same aircraft

prior to the crash and gave information to the respondent

Eastern, which could have prevented the accident.

The respondent commenced a retaliatory conduct,

designed to censure the petitioner's First Amendment right

to free speech on this topic, and utilized the medi v department

as a too! of discipline, in an attempt to drive the petitioner

from it’s employ.

The respondent takes refuge in it’s right to defame the

petitioner in the “tone’ of a letter that the petitioner wrote

the FBI, under the Constitutional Petitioner's Clause. In

this letter some facts were sent, which were true, and not

challenged by Eastern.

The question is presented: Can a corporation claim

First Amendment rights, or are these rights limited

to a good cause and limited to an individual? Can

these rights be granted if for the wrong reason

such as making fun of a citizen, or for the censure

of free speech? Are there limits to personal opinion

in private matters, and in cases where the public

good in transportation may be adversely effected?

Can a citizen claim privacy in a libel case when his

confidential medical records are published, which

were unknown to the reader of the newspaper,

and have been resolved in his favor prior to the

publication?

vill

CASE NO. A-256

in the

Supreme Court

uf the

United States

OCTOBER TERM, 1985

DANIEL GONZALES GELLERT,

Petitioner.

EASTERN AIR LINES, Ine..,

Respondent,

PETITION FOR WRIT OF CERTIORARY

ON APPEAL FROM THE

“SUPREME COURT OF TLORIDA

QUESTIONS PRESENTED FOR REVIEW

WHETHER, under the First Amendment, the respondent,

who was the defendant at trial, has superior rights, since

the jury verdict from which this cause is appealed, granted

him the defense of “personal opinion”; which was not disturbed

on appeal either by the district court, or the Florida Supreme

Court, when the libel was to censure the free speech of the

petitioner, which is also guaranteed by the First Amendment.

There are competing interests of both parties, which

brings a serious conflict under the First Amendment for

rey iew.

The respondent's agent, a James Ashiock, published in

the LONDON SUNDAY TIMES, November 19, 1978:

“He’s Paranoid.

But why, 1 asked ii you believe that he is paranoid is

he allowed to fly Eastern Airlines passenger jets? It’s

awfully hard to fire anvore these days.

Anyway, we have three of them in the cockpit. Know

what I mean?”.

Ashlock was the respondent's director of news. He never

met the petitioner. He's source for the libel was the file that

the respondent had accumulated on the petitioner. in an

employee/employver relationship.

Ashlock published undisclosed defamatory facts, and

as such he is not privileged to a First Amendment defense

of opinion.

The petitioner has the Constitutional right to privacy

as to the medical} file that the respondent has built on him,

since the nature of the employee relationship grants the

respondent Eastern, to examine it’s flight crews, and as the

keeper of these confidential medical records, a fiduciary

responsibility.

Ashlock’s testimony:

“Q. Now, how much do you know ; /vut Dan Gellert?

A. Not an awful lot, just general knowledge.” (T 75).

The libel was completely unsolicited, since Blundy, the

reporter for the LONDON SUNDAY TIMES ealled

about the L1011 crash, and did not know anything

about the libelous comments voluntarily published by

Ashlock. These libelous facts were unkown to the reader

of this newspaper article. Simply, Ashlock was not

asked to comment on the medica! qualifications of the

petitioner but rather the controversy concerning the

Eastern L1011 erash of flight 401.

WHETHER, in this cause the respondent can utilize an

intentional lie or a misstatement of fact to gain protection

under the First Amendment, as to right of personal opinion.

Ashlock’s comment that the petitioner is only allowed

to fly since it is awfully hard to fire him, and there are three

pilots in the cockpit, indicates to the reader that the petitioner

is under the control of subordinate flight crew members.

This is in conflict with federal law rights that the petitioner

has. Defamatory passages must be considered in the context

of the entire article. See: Cianci v. New Times Pub. Co. 639

F.2d 54 (1980).

Opinions based on false facts are actionable against one

who had knowledge of the falsity or probable falsity of

underlying facts. Misstatements of fact, when made with

actual malice are unprotected by the Constitution. See:

McManus v. Doubleday & Co., Inc. 513 F.Supp. 1383 (1981).

‘

By virtue of the libel, Ashlock knew that the petitioner

was an operational pilot flying the respondent's passenger

jets, and that this libel was going to be published in an

international news paper, which would characterize the

petitioner as mentally incompetent to safely carry out his

flying duties.

The Supreme Court has specifically recognized that

the characterization of a person’s conduct as reasonable or

unreasonable is a protected statement of opinion. See: Nat.

Foundation for Cancer Res. v. Council of BBB 705 F2d 98

(1983). In this cause the Court is specifically asked to determine

if a Constitutionally protected defense can deny the petitioner's

employment rights, and rights under the Commerce Clause

of the Constitution.

WHETHER, there is a First Amendment defense of

opinion, or any defense if a libel is published to make the

petitioner a laughing-stock or the butt of a joke and a jest.

In this cause, Frank Borman, the head of the respondent

Eastern testified, that he approved of this libel:

This was in an aside or a jocular manner, I have

no doubt.

era uit aes call ie 4 geal ress is

Q. Do you think it was said in a jJocular manner:

A. I would expect so.

often times. regardiess of the seriousness of

the interview in which the conversation, it

takes on a light tone. (T 33)

A. As I said before, i would expect that he was

joking in that mood” (T 36)

Is there a new defense that allows a person of higher standing

in society, or a corporation to use a citizen as the entertainment

of his vindictiveness; or is this a defense that is beyond a

First Amendment protection as to a defendant's personal

opinion privilege? Borman testified:

“A. I'm president and Chief Executive Officer of

Eastern Airlines.

Q. And you are also Chairman of the Board?

A. Chairman of the Board, Correct.” (T 4)

Borman did not censure or correct the imposition of the

libel, since in his mind, Ashlock is entitled to joke and call

the petitioner paranoid and mentally incompetent to safely

carry out his flight duties, while representing Eastern in his

official capacity.

WHETHER, in this cause there is a right that the

petitioner can claim to over come the respondent's defense

of personal opinion under the First Amendment, since the

nature of this libel is akin, or same as that courts have

recognized as unprotected as a “man in falsely shouting fire

in a theatre and causing a panic”; in the instant cause a false

statement that the petitioner is mentally incompetent to

fly, and that Eastern Airlines is forced to allow him to fly

since it has not been able to fire him, and that this is the

only reason that he is in command of Eastern’s passenger

jets is a panic causing situation. Should this statement be

granted a “perfect immunity” or is this a repressive verdict

which denied the petitioner's free speech and Constitutional

rights to his good name?

“for as Mr. Justice Stewart has reminded us, the

individual's right to the protection of his own good

name reflects no more than our basic concept of

the essential dignity and worth of every human

being —a concept at the root of any decent system

of ordered kberty.”

Since the day of John Milton in 1644 to the present,

men have written on this topic as John Stuart Mill in ON

LIBERTY in 1859:

‘even opinions lose immunity, when the

eireumstanees in which they are expressed are

such as to constitute their expression a positive

instigation to some mischievous act. An opinion

that corn-dealers are starvers of the poor, or that

private property is robbery, ought to be unmolested

when simply circulated through the press, but may

justly incur punishment when delivered orally to

an excited mob assembled before a house of a

eorn-deaier, or when handed about among the same

mob in the form of a placar

ihe petitioner is a professional airline pilot, a captain and a

pilot-in-command under federal law, in the employ of the

respondent Eastern Airlines: as such, the libel is even more

than libel per se, which by definition is “a publication which

would be inconsistent and incompatible with the petitioner's

proper exercise of his trade or profession.” There is no

immunity as to an opinion which would be in the nature ot

yelling fire; or when the respondent used libel to interfere

with the petitioner's ability to provide safety to those in his

care; and under law only im his care.

Eastern has documented information on the petitioner,

as to his outstanding mental qualifications to safely perform

; flying duties. Eastern has joked and abused the petitioner

repeatedly about his outstanding mental sanity, since Eastern’s

executives regard their pilots as less then of a high degree

of sanity as the letter from Bell, the respondent's senior vp

for law stated on January of 1975:

“Attached is a letter from Gellert and his

Certificate of Sanity. This has created a whole

new worry in my mind. His high degree of Sanity

is in such stark contrast with the other pilots

that I know.” (P 14)

Federal Aviation Regulations, (FAR) 91.3 (a):

“The pilot in command of an aircraft is directly

responsible for, and is the final authority as to,

the operation of that aircraft.”

FAR 121.533 (d), (e} and 121.535 (d), (e):

“Each pilot in command of an aircraft is, during

flight time, in command of the aircraft and crew

and is responsible for the safety of the passengers,

crewmembers, cargo, and aircraft.”

“Each pilot in command has full control and

authority in the operation of that aircraft, without

limitations, over other crewmembers and their

duties during flight time whether or not he holds

valid certificates authorizing him to perform

the duties of those crewmembers.”

The question, whether the petitioner is entitled to the

rule of law which flows from the Commerce Clause of the

Constitution, Section 8. “To regulate Commerce with foreign

Nations, and among the several States, and the Indian Tribes.”,

or not? Can the respondent gain First Amendment rights to

suppress or interfere with the petitioner's authority and

Constitutional rights?

WHETHER, there are reduced Constitutional rights

available to a defendant in a private matter issue, as opposed

to a case involving public matters. See: DUN &

BRADSTREET INC. v. GREENMOSS BUILDERS, INC. 472

US 86 L.ED2d 593, 105 S.CT.

The First Amendment interest in protecting this type

of expression should not be granted. A confidentia! medical

file, which ultimately was resolved in the petitioner's favor

should not be the basis of a Constitutionally protected right

of personal opinion. It is remote to consider this as a matter

of publie concern, or that it is a matter which would be a

debate on public issues and should be an uninhibited, robust,

and wide-open. .

This case does not offer even the slightest debate on

public affairs, or is an essence of self-government.

This case involves speech matters of purely private

concern and as such it is of less First Amendment concern.

There are no censorships of the press as the defendant

corporation is not a media.

This particular interest warrants no special protection

when-— as in this case-- the speech is wholly false and clearly

damaging to the victim’s business reputation.

A pilot-in-command must posses a medicai certificate

issued by the Federal Aviation Administration’s approved

medica! doctor. A pilots stock-in-trade is his reputation. His

medical qualification, especially his mental competence is

his most important asset. Without this he is unemployable,

he is a liability and a menace. For the employer, an airline,

who in the eye of the public is the provider of safe

transportation, to accuse a pilot of mental incompetence to

safely fly, should be beyond a Constitutional and First

Amendment protection of personal opinion. Court’s have

recognized that the imputation of insanity or the impairment

of mental faculties was libel per se. See: Cowper v. Vannier

156 N. E. 2d 761 (1959) and Goldwater v. Ginzberg 414 F. 2d

324 (1969).

WHETHER, a corporation can claim rights which would

not be available to a citizen, an individual. Frank Borman,

since he is the highest ranking officer that represent Eastern;

who's decisions are beyond question and control, should be

the only individual who in this cause could determine the

liability and responsibility of the respondent Eastern. While

admittedly, Ashlock had the authority to publish the libel,

what is very significant is that Borman completely approved

of it.

A corporation has rights under the law in libel; see:

Neiman-Marcus Co. v. Lait 107 F.Supp. 96 (1952), then isn’t

time to establish liability on this same legal basis for

corporations also? When a contract or libel is approved by

the Chief Executive Officer of the respondent corporation

Eastern, then it is a matter that is proven on the spot.

Borman:

“A. Isee that sentence, “He’s paranoid,” yes.

Q. Then there is a quotation:

“But why I ask, if you believe he’s paranoid, is he

allowed to any of Eastern Airline’s passengers.”

It says, “Ashlock: It’s awfully hard to fire anyone

these days. Anyway we have three of them in the

cockpit.

Do you know what I mean?

A. Iread that, yes sir.

Q. You said that with Mr. Ashlock, you had no problem

with him over the truthfulness and fairness of his

reports?

A. Ilexpect you would have to ask Mr. Ashlock.

This was in an aside or a jocular manner, I have

no doubt.” (T 32-33)

WHETHER, the respondent corporation is entitled to

a First Amendment protection of persona! opinion, or is this

defense available only to an individual; and only when the

opinion is based upon known facts, and publication does not

involve undisclosed facts as the basis for the opinion? See:

National Rifle Ass'n. v. Dayton Newspapers, Inc., 555 F.Supp.

1299 (1983).

WHETHER, the publication of private medical matters

resulting from the prior unjust medical evaluations of the

petitioner are, which were confidential, can be released to

the news media, as was in this case, and placing the petitioner

in a false light in the public eve, and utilized for the First

Amendmient defense of personal opinion? Ashlock testified:

“Q. Did Mr. Blundy ever ask you to comment on

Captain Gellert’s psychiatric state?

A. No, sir.

Q. Did he ever ask you to comment on Captain

Gellert’s ability to fly an aircraft safely?

A. No, sir. (T. 94)

There is a conflict of Constitutional rights under the

First Amendment, on one hand the right of the petitioner to

privacy; and the preservation of confidential medical files

that the respondent built for the petitioner’s demise; and

the right of the respondent corporation to the jury verdict

of personal opinion. Ashlock initiated the libel. He volunteered

it. He was not asked.

Eastern in a prior case accused the petitioner, and tried

to prove a medical incompetence of the petitioner, in a

second case that it did not libel the petitioner, and in this

case that it has the right to this libel as a jest, a joke and in

the lighter tone. What remedy if any does an individual

have?

WHETHER the respondent can hide behind a “shield”

of First Amendment right to opinion, when the libel was

published to censure the petitioner’s freedom of speech,

also guaranteed by the First Amendment, to comment on

and freely discuss the respondent’s L1011 crash which resulted

in 103 deaths.

Can medicine and libel be a tool to overcome. the

disadvantage in a newspaper article?

Ashlock testified:

“Q. (By Mr. Popper) What was the compiaint about?

A. It was basically about the L-1011 accident.”

(T 69)

“He said Eastern was out to get him; that we tried

to crash a plane in order to kill him; that we

deliberately aitered the altitude instruments on

the plane he was flying. He’s paranoid.” (T 72)

There was a letter that the petitioner wrote to the FBI,

which according to the Constitutional Petitioner's Clause,

was to convey certain information to the Bureau, but did

not make the statement that Ashlock published. This letter

again was only available to Ashlock, and not to the reader of

the LONDON SUNDAY TIMES, as this was undisclosed

material that was in the respondent’s file only.

The respondent corporation's Chief Executive Officer,

a Frank Borman testified:

“Q. Didn't that cause you to instigate an

investigation of Captain Gellert?

A. I did not instigate an investigation, I was

concerned by the tone of the letter? (T 15)

There were no concern’s about the content or facts, but the

tone. How far can the First Amendment defense of opinion

be stretched when it is applied to a “tone” and not to facts in

a libel?

WHETHER, the State of Florida denied the Constitutional

right of this petitioner to be heard under the Petition Clause,

since on appeal, the Supreme Court ruled that it lacked

jurisdiction to review this cause. In Florida, it is the

intermediate court which decides as to which cases the

Supreme Court has jurisdiction to review.

In this cause, as a result Constitutional issues which

normally should have been resolved at that level were denied.

The Supreme Court did cite as authority, Dodi Publishing

Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla. 1980).

The only significance that this case seem to resolve is that

under Florida law a per curiam affirmance, is exactly that,

and that a cited authority attached is of no significant

importance as to appeal or any rights arising from same.

The only reviewable law is if there is a decision that expressly

and directly in conflict; and not the cited authority that one

may feel is significant.

THEREFORE, under Florida law, this case must stand

or fall on the cited Constitutional issues, since Florida affirmed

the jury verdict which granted the respondent corporation

the First Amendment defense of personal opinion of it’s

news director to libel, with the expressed approval of the

corporations’ Chief Executive Officer.

The Supreme Court lacked jurisdiction, and as such

there is not a procedural defect that in anyway would disturb

or interfere with the jurisdiction of this Court.

STATEMENT OF THE CASE

During closing argument, the respondent's attorney, a

Calvin David told the jury a misstatement of fact:

“Mr. Gellert, has brought five lawsuits, 30 or 30

grievances, so don’t you be the first jury to award

him in one.

He's not your normal individual.” (T 109)

It is proper to ignore the smear, “He's not your norma!

individual”, since this is the on-going defamation of the

defendant that continued even during trial.

The misstatement of fact, which the petitioner was

unable to challenge, of course was that Gellert has been

involved in five lawsuits, and no jury has found for him.

The petitioner went to trial in September of 1977; this

case resulted in a 1.6 million dollar jury verdict, which was

reversed by the trial court, on the legal premise that Florida

did not recognize intentional infliction of emotional distress,

standing on it’s own, with out impact or an independent

accompanying tort.

This was upheld on appeal, see: Gellert ». Eastern Air

Lines Inc., 370 So.2d 802 (Fla. 3DCA 1979) and the Florida

Supreme Court denied certiorari, see: 381 So.2d 766 (Fla.

1980); while an other case during this same time was certified

to the Supreme Court, see: Ford Motor Credit Co. v. Sheehan

373 So.2d 956 (Fla.) on the same issue. The district court

later repudiated it’s opinion in this regard, but to late to

offer this petitioner any relief. See: Dominquez v. Equitable

Life Assur. Soc. 438 So.2d 58 (Fla. 3DCA 1983). The above

case gives this appeal a good view of the controversy, and

out lines the defendant’s malice.

This case is a retrial. See: Eastern Airlines v. Gellert

438 So.2d 923 (Fla. 3DCA 1983). That trial resulted in an

other jury verdict for the petit'»ner, in the sum of $275.000.00;

which was taken away, through any fault of this

petitioner.

The district court’s debate on opinion and mixed opinion

perhaps gave rise to the respondent's blatant position to

the right of libel as a joke and a jest. This unconstitutional

line of defense was impossible for the petitioner to stop, and

culminated in a deception of the jury on the force of law and

the credibility of the evidence. Certainly, since two prior

juries have given a total of 1.875 million in recovery, it is a

pungent lie for Calvin David to teil the jury “don’t you be

the first to award him in one”.

The 30 or so grievances did take place, covering the

back pay for the petitioner, when he was grounded medically

with out a medical just on the orders of Borman; then

refused sick-leave pay; vacation pay already earned was

refused the petitioner, and other wrongs that the petitioner

as an employee had under law.

Eastern Air Lines, Inc. v Gellert 431 So.2d 329 (Fla.

3DCA 1983) was a case when the respondent tried to avoid

giving the petitioner the information; that while this

controversy was raging, that the respondent through it’s

attorney Anania and it’s insurance company USAIG, U.S.

Aviation Underwritters was involved in the petitioner's

private and business life. Following him by private investigators

like P. Knezevich, and calling the judges in a divorce and

child custody case; Judges Cowart and Waddell; and interfering

in the petitioner's strictly private matters.

In Eastern Air Lines, Inc., v. Gellert 452 So.2d 570 (Fla.

3DCA 1984), the respondent attempted to turn tables on the

petitioner by this appeal, since John Antoon, who was the

former attorney representing the petitioner's former wife

was working for the respondent Eastern,; using the divorce

court callendar so that the petitioner could be suspended

for missing Eastern flight's, since we can not be in two

places at anyone time; resulting in 2 month loss of pay for

the petitioner, which was in the most part returned by

those 30 grievances; defamed the petitioner in child custody

proceedings by implying mental problems as a result of

Eastern’s confidential information relayed to Antoon; and

Antoon sent confidential material from the sealed divorce

file to Eastern,

In Bell vu. Gellert 469 So.2d 141 (Fla. 3DCA 1985) counts

representing a suit for $2.500.000.00 against Gellert were

dismissed and affirmed since the claim was a result of a

grievance that the petitioner was forced to file.

In Gellert v. Eastern Air Lines, Inc., 688 F.2d 723 (1982)

the respondent moved the case to the federal jurisdiction

and was able to dismiss the case as a preempted case under

federal law. While this was reversed, there remained no

federal issue.

After two unjust medical groundings covering about

two years, Eastern resorted te libel! designed (o interfere

with the petitioner's rights under federal law, and drive him

from it’s employ.

— STATEMENT OF THE GROUNDS

FOR INVOKING JURISDICTION

The first consideration is based upon the right of this

petioner to recover in a libel action under the First Amendment,

since the federal jurisdiction has ue novo review responsibility

in libel action of evidence of actual malice. See: Marcone ».

Penthouse Intern. Magazine For Men 754 F.2d 1072 (1985).

—_—_-_- ooo eee

The First Amendment does not afford protection for a

misstatement of fact. “There is no constitutional value in

false statements of fac’’ Id. at 340 94 S.Ct at 3007. Clark v.

American Broadcasting Co., Inc. 684 F2d 1208 (1982) and the

intentional lie that the petitioner has not received anything

from a jury, or that he is paranoid and mentally incompetent

to fly, are serious missiatements of fact; and are intentional

lies that are beyond protection by the First Amendment, or

any defense imaginable.

The right of opinion as protected in cases where an

individual expresses an opinion on issues of common knowledge,

in this cause, Ashlock released unknown information to the

reader from the confidential files of the respondent Eastern;

and this information was false since on a medical review the

competence and high degree of the petitioner's sanity has

been well established; and at best all medica! information

that the respondent wouid have would be highly confidential.

“Q. You knew that Captain Gellert was flying?

You had that information?

A. I think I knew he was flying at that time,

yes, sir.” (T. 66)

Ashleck acted with actual malice to publish that one of

Eastern’s operational pilots is flying, while the airline and

he made the factual statement that he was mentally

incompetent to fly, since he is paranoid, but that the airline

could not fire him, since it’s awful hard to fire anyone these

days.

“Q. (By Mr. Popper) What was the complaint

about?

A. It was basicaliy about the L1011 accident.”

(T.69)

"@Q.

A perfect statement of the facts, Ashlock while

representing the respondent Eastern published the libel

knowing that it would be printed in a news paper, the

When you first received the article, is that

when you looked up the precise definition of

the word “paranoia” or “parancid’’?

Yes.

Did that definition comport with what you

intended to impart to Mr. Blundy concerning

Captain Gellert’s complaints in the letter to

the FBI?

Yes, sir. (T. 84-85)

When you told Mr. Blundy’s words to the

effect that you thought Captain Gellert, based

upon this letter, was I'll use the word

“paranoid”, were you giving your personal

opinion?

Yes. It would have to have been.” (T. 92)

“It's awfully hard to fire anyone these days—”

I you don't recall if you specifically said those

exact words, but did you intent to get that

message across to Mr. Blundey?

Yes, sir. That’s a perfect statement of the

facts.” (T. 85).

LONDON SUNDAY TIMES:

“Q.

(By Mr. Popper) In response to Blundy in

your conversations about the L1011, were

you telling him —

}

;

A. Telling him the position of Eastern Airlines,”

(T. 82 83).

“Q. Did he tell you he was researching a story?

A. That's normally what people call me for.

“Q. Did he tell vou sir, research, r-e-s-e-a-r-c-h?

A. He was indentifying himself, he started asking

me these questions researching. (T. 83)

“Q. He didn’t tell you it was going to come out in

the London Sunday Times?

A. He never said it in those words. I was assuming

he was researching a story he planned to

print. (T 83)

Frank Borman, the head of Eastern testified:

“Q. (By Mr. Popper) Had you ever flown with

Captain Gellert?

A. I, asa passenger, I have, yes.

“Q@. On several! occasion.?

A. On numerous, yes, several occasions.

“Q. You had no problems with his flying, I gather?

A. Idid not.” (T 7)

This should fully underscore the petitioner’s high degree of

sanity. Eastern’s only intent was to discredit the petitioner.

The petitioner never made the statement that Ashlock

published: “He said Eastern was out to get him, that we

tried to crash a plane in order to kill him.” Borman testified

that he was concerned only by the tone of the letter, and not

the facts:

“Q. Didn't that cause you to instigate an

investigation of Captain Gellert?

A. I did not instigate an investigation, I was

concerned by the tone of the letter? (T15).

The issue that the petitioner responded to statement’s made

by an Eastern pilot not to testify are recorded in Gellert v.

Eastern Air Lines, Inc., 370 So.2d 805 (Fia. 3DCA). These

statement’s which the district court ruled were: “To the

contrary, the pilot who so advised Gellert testified he had

done so on his own.” does not diminish the proper concern's

that the petitioner was entitled to, since these warnings

were in the nature of “fighting words”. He told the petitioner

that he would be failed on medicals and flight checks in

retaliation for his NTSB testimony. The petitioner as a

responsible pilot in command has not only the right but an

obligation under the Constitutional Petitioner’s Cause to

clear up this matter through the FBI.

By the very nature of the pilot in command responsibility

there is a constant flow of letters and documents from pilots

to the FAA, NTSB and FBI.

There is nothing significant in this and especially on

Eastern since there have been some problems which the

management was somewhat insensitive to. The latest public

matter that would underscore this be the “O” ring problem

that almost resulted in great loss of life, when on routine

maintenance, these “O” rings were left out repeatedly with

out any responsible action by manament, until it happened

on all three engines on an L1011 over the Atlantic Ocean.

Borman approved the libelous publication of Ashlock,

and acknowledged the authority and responsibility that Ashlock

had as the director of news for the respondent Eastern

Airlines:

“Q. Now wasn't he known as the voice of Eastern?

A. In the local press I think he was sometimes

refered to as the voice of Eastern, yes sir.

Q. Did he have a right to come in and represent

Easiern’s position with the press?

A. He had a responsibility to present our position

with as much integrity and openness as he

could.

Q. Do you have any doubts that he did?

A. Inthe years that he was in that position |

cannot fault his performance. I have great

confidence in his abilities and his integrity.

(T. 31)

A. Isee that sentence, “He's paranoid,” yes.

Q. Then there is a quotation:

“But why I ask, if you believe he’s paranoid

is he allowed to any of Eastern Airline’s

passengers.

It says, “Ashlock: It’s awfully hard to fire

anyone these days. Anyway we have three

of them in the cockpit. Do you know what I

mean?

A. Iread that, ves sir.

Q. You said that with Mr. Ashlock, you had no

problem with him over the truthfulness and

fairness of his reports.

A. [expect you would have to ask Mr. Ashlock.

This was in an aside or a jocular manner, |

have no doubt.

(T. 32-33)

Q. What do you mean by, “Jim Ashlock being

an interface with the press”?

A. Well, Jim Ashlock’s duty at his former job

was primarily to fulfill inquiries from the

press.” (T. 35)

This is the case in a nut-shell. The responsible officer, the

director for news publishes a libel and the president, chairman

of the board and Chief Executive Officer approves it since

he believes that the libel was published as a joke and a jest.

The former cases which are available to the Court to

prove the malice that the corporation of Eastern had in this

cause, and the approval of the headman of the respondent

places this far beyond the possible First Amendment defense

of opinion.

During the respondent's closing argument the jury were

told:

“Mr. Ashlock’s personal opinion, and whether he

was making it for Eastern or for himself makes no

difference what his personal opinion.” (T. 124)

Since this appeal is based only on the jury verdict giving a

First Amendment defense to personal opinion, of course it

makes a great deal of difference.

In the enclosed Motion For New Trial this legal issue is

preserved for appeal. #8: “That the verdict holding statement

in the London Sunday Times to be that, as a personal statement

of Ashlock, was contrary to the manifest weight of the

testimony in this cause.”

Ashlock testified that the petitioner is a competent

pilot and that Eastern had no just cause to fire him. This is

again a misstatement of fact and an intentionai lie in the

publication.

“A. I don’t think so because he is a capable pilot.”

(T. 91)

“Why is it awfully difficult these days?

Well, you have to have good cause. That’s

one reason.

Q. Did Eastern have good cause?

A. No, sir.-(T. 105)

Q. When you told Mr. Blundy’s words to the

effect that you thought Captain Gellert, based

upon this letter, was— I'll use the word

“paranoid” were you giving your own personal

opinion?

A. Yes. It would have to have been. (T. 92)

Ashlock admitted the publication of the libel; he admitted

that he committed a misstatement of the fact/intentional lie,

and as such he and through him the respondent Eastern is

not entitled to a First Amendment defense of the jury

verdict of personal opinion based upon his testimony.

This cause is a private matter as opposed to a public

matter, and as such, there is a reduced Constitutional value

of speech. See: Dun and Bradstreet, Inc., v. Greenmoss

Builders 472 US 86 L.Ed2d 593, 105 S.Ct,

The petitioner filed a Motion for Relief and Mandamus,

which the District Court ruled to be the petitioner's brief of

appellant herein, dated November 2, 1984.

On pages 1, 3, 4, 5, 8, 11, 12, 16, 18, the petitioner

preserved the basis of the federal question of this appeal.

Arguing the First Amendment right of the petitioner, and

the element of the joke defense, and the lack of the persona!

opinion defense under Constitutiona! grounds.

There are two briefs placed before the Florida Supreme

Court. In the Brief of Petitioner on Jurisdiction, the petitioner

argued and preserved the federa! question on pages, 2, 3, 4,

7, 8, 9, 11, 12, 13. “Most jurisdictions, while upholding the

First Amendment, recognize that as in this case, the defendant

has no Constitutional right or value in false statement of

fact; neither an intentional lie.” Page 13. In the Brief of the

Petitioner on Discretionary Jurisdiction, pages 4, 5, 6, 7.

In the instant cause, under Florida law there is a conflict,

since in Gellert, the determination of fact or opinion was

submitted to a jury, while in Nudar v. Galbreath 462 So.2d

803 (Fla. 1984), it is a matter of law to be determined by the

court. It is requested that the Court certify this to the

Florida Supreme Court for resolution under Rule 9.030 (a)

Jurisdiction of Supreme Court. (2), (C).

“In conjunction with this, defendant argues that

the trial court compounded its error by allowing

the jury to decide whether the statements were

fact or opinion. Certainly, adequate precedent exists

for the proposition that courts, and not juries make

this determination. Nodar v. Gaibreath 429 So.2d

718 (Fla. 4DCA 1983)

The significance of this is over powering in a case such

as this. The petitioner could not over come the statement

during closing argument that: “Mr. Ashlock’s personal opinion,

and whether he was making it for Eastern or for himself

makes no difference,”; while if this determination would

have been made by the court, then this line of closing

argument would have been circumvented.

Is a corporation entitled to a “personal opinion’? This

is now a significant Constitutional question, if in fact a

corporation has the First Amendment right to it’s personal

opinion or not. The next question is whether in this cause

was it the corporation opinion or the opinion of Ashlock that

was the basis for the jury verdict. The wisdom of this being

a matter of law to be determined by the court, now is a

Constitutional question.

The jury entered a verdict on Friday, May 18, 1984.

The Motion for New Trial was denied, and a Final Judgement

was entered by the trial court on June 12, 1984. Case No.

79-2402 (CA 10).

This was noticed for appeal on July 12, 1984 before the

District Court of Florida, Third District, Case No. 84-1581.

On March 12, 1985 this Court ruled:

PER CURIAM. Affirmed. See: Gellert vu. Eastern Air

Lines, 466 So.2d 9 mem (Fla. 3DCA 1985).

On April 19, 1985, a Motion for Rehearing was denied.

On May 20, 1985 an appeal to the Florida Supreme

Court was filed; as a Petition on Discretionary Jurisdiction,

and also on a Pet'tion on Jurisdiction.

On May 24, 1985, the Petition for Review was dismissed.

On June 17, 1985 the order of May 24, 1985 was vacated, and

the Petition for Review was dismissed to be reinstated by

the Court on motion which was already pending before the

Court. On July 24, 1985 the Motion for Reinstatement of

Appeal on Jurisdiction was denied. Case No. 67,061.

On the 30th of September, 1985, a Petition for Extention

of Time for Docketing was filed; and on October 4, 1985, this

was granted by the Supreme Court of the United States; to

docket this case to and including December 21, 1985.

This appeal is based upon a jury verdict:

“We, the jury, return the following verdict:

“Number 1. Indicate in the appropriate space below

whether the statements attributed to Jim Ashlock,

if made, were either a false statement of fact or

his own personal opinion. Personal opinion is checked

off.

The petitioner is asking the Court to decide if labor

RLA grievences are admissibie only to demonstrate malice:

in a manner which in no way would alter any rights which

have resulted from these final and binding decisions.

Also, if under the First Amendment rights, a party toa

libel suit can go back to prove the falsity of a defamation

without any time restriction.

THEREFORE, the petitioner prays that certiorari will

be granted, since the jury verdict of the First Amendment

right of opinion came from the Supreme Court's ruling in

past cases. In this cause the right of a personal opinion has

placed the First Amendment rights of the petitioner and

respondent in conflict; and the rights of the petitioner

eminenting from the Commerce Clause of the Constitution.

Are there limits to the First Amendment right of personal

opinion in this cause, or can this be utilized to make fun of a

petitioner as a joke, and destroy and interfere with one’s

rights to his employment, privacy, and good name?

Respectfully submitted,

—J7iuu for se) selltr]

Dgti€l GynzalesGellert

in the’proper person.

CERTIFICATE OF SERVICE:

nnd i HEREBY CERTIFY that a true copy of the foregoing

neLi2e> Was matted—by-first—elass.S,Mail on this // day of

. December, 1985 to the respondent's attorney, Thornton,

David & Murray, P.A. Suite 100, 2950 S.W. 27th Avenue,

Miami, Fl. 33133-3704.

Appendix

SUPREME COURT OF THE UNITED STATES

No. A-256

DANIEL GONZALES GELLERT,

Applicant,

EASTERN AIR LINES, INC.

ORDER EXTENDING TIME TO FILE PETITION FOR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of petitioner,

It IS ORDERED that the time for filing a petition for

writ of certiorari in the above-entitled cause be, and the

same is hereby, extended to and including December 21,

1985.

/s/_ Lewis F. Powell, Jr.

Associate Justice of the Supreme

Court of the United States

Dated this 4th

day of October, 1985.

App. 1

[FILED 1984 MAY 29]

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR

DADE COUNTY, FLORIDA

; RN} tA PTS TTY PTO? )] I i yN

i \ } AN & 4 4 Vy { 4 {

OKIDA BAR 206354

DANIEL ¢ GELLERI

Plaintitf.

4 ASTERN AIR LINES, IN

1 Delaware Corporation

MOTION FOR NEW TRIAL

ro ® ' T>I1, J" s ATYL" ' fy yp <ueinene ad

COMES NOW Plaintiff, DANIEL G. GELLERI, pursuant

ict ha

» rule 1.50 of the Florida Rule of Civil Procedure moves the

ourt to set aside the verdict in this cause, anGg yrani

vant a New Trial on the following ground

1 The verdict is contrary to law

2 The verdict 1s contrary to the evidence.

, Che verdict is contrary to the Court s charge

1 That the Court erred when it refusec to grant a

nistrial on Motion made by the Plaintiff after the defense

ittorney in questioning of the witness, Francis Anania, before

-he jury. did ask said witness whether or not the Plaintiff,

Gellert had accused him of taking a Fifty Thousand ($50,000.00)

Dollar bribe. This statement was highly prejudicial and

could not be overcome by any cautionary statement by the

Court to the jury.

5. That the Court erred in not letting Plaintiff present

evidence to substantiate the material that had been placed

in the November 19, 1978 articie of the London Sunday

Time, pertaining to the L-1011. During it’s deliberation the

jury sent a question without asking for the material which

would have covered the matter in question, to prevent the

Plaintiff to presenting his side, was highly prejudicial and

permitted the Defendant to comment in the final argument

without the opportunity for the Plaintiff to have any rebuttal

on the particular situation.

6. That the Court erred in permitting the Defendant

to discuss Final Judgment of the Divorce of Gellert v. Geliert :

when stating that the wife had custody of the children, in

order to minimize any of the Plaintiff's complaints as to

relationships between he and his children. The only thing

this statement could do was to leave inferences which were

highly prejudicial to the Plaintiff.

7. That the Court erred when it would not permit the

Plaintiff to place into evidence correspondence that he had

between he and the F-.B.L., including memorandum of application

from the F.B.I., in regard to Gellert, as it would help to

substantiate any further correspondence with the F.B.I.

8. That the verdict holding statement in the London

Sunday Times to be that, as a personal statement of Ashlock,

was contrary-to the manifest weight of the testimony in the

cause. That Coronel! Borman has stated, in his testimony,

the full confidence that he had had in Ashlock, and in no

way, did he refute these statements made in the London

Sunday Times. Further there were no complaints made as

to Gellert’s flying whatsoever, as testified to by Buttion and

Borman.

9. That in contradiction to the verdict rendered, Ashlock

testified that Eastern had no cause to fire Gellert and is

App. 3

diametrically opposed to the statement that he made to the

London Sunday Times, when he said it is difficult to fire

somebody nowadays, but there are three in the cockpit.

Obviously. Ashlock knew sufficient background of Gellert,

to know that there was no reason to fire him, but did know

the attitude of Buttion, who would not give any reference

for Geliert whatsoever; Borman who thought the article

was jocular, and Bell who wanted to pursue actiens against

Gellert in spite of any psychiatric examinations, and created

an entire attitude of anti Gellert with Eastern, and Ashlock

was the spokesman for this attitude.

10. That each and every of the above are highiy

prejudicial, and sufficient for the Court to have granted a

mistrial upon proper Motion, which it did not alter an

alternative at this time to grant a new Trial.

WHEREFORE, Plaintiff praises this Honorable Court

to set aside the verdict in this cause, and grant the movant a

New Trial.

is)_ David Popper _

DAVID POPPER

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing was mailed/hand delivered this 28 day cf May,

1984, to Barry L. Davis, Esq.. THORNTON, DAVID &

MURRAY, Suite 210, 25 S.E. Second Avenue, Miami, Florida

33131.

's)_ David Popper _

DAVID POPPER

App. 4

[RECORDED JUL 16 1984]

IN THE CIRCUIT COURT OF 11TH JUDICIAL CIRCUIT

OF FLORIDA

GENERAL JURISDICTION DIVISION

CASE NO. 79-2402

FLA. BAR NO. 063883

DANIEL G. GELLERT,

Plaintiff, Appellant

US,

EASTERN AIR LINES, INC.

a Delaware Corporation

Defendants, Appellee

NOTICE OF APPEAL

Notice is given that Daniel G. Gellert, Plaintiff/Appellant,

appeals to the District Court of Appeals of Florida, Third

District the order of this Court rendered on June 12, 1984.

The nature of the order is a final order in favor of the

Defendant, Eastern Airlines, Inc. and against the Plaintiff.

WE HEREBY CERTIFY that a true and correct copy

of the foregoing was mailed and/or hand delivered to Barry

L. Davis, THORNTON, DAVID & MURRAY, P.A. Suite 210,

Ingraham Building, 25 S.E. Second Avenue, Miami, Florida

on this 12 day of July, 1984.

‘s)/ Daniel G. Gellert

Daniel G. Gellert

In Proper Person

P.O. BOX 187

Cocoa Beach, Florida 32931

(305) 781-2769

App. 5

IN THE DISTRICT COURT OF APPEAL OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1984

FRIDAY, NOVEMBER 2, 1984

CASE NO. 84-1581

DANIEL GONZALES GELLERT,

A Ppé itant,

A ppe llee.

It is ordered that appellant’s pro se Motion for Relief

and Mandamus and Statement of Judicia! Acts to be Reviewed

filed on October 25, 1984 shall be treated as brief of appellant

herein.

{

Court of

Appeal, Third District

Clerk District

vy s' Evelyn A. Hillman

Deputy Clerk

ee: Daniel Gonzales

Calvin David

tlk

App. 6

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JULY TERM, A.D. 1984

FRIDAY, DECEMBER 14, 1984

CASE NO. 84-1581

DANIEL G. Gellert,

Appellant,

US.

EASTERN AIR LINES, INC.,

Appellee.

Upon consideration, appellee’s motion to strike appellant's

motion for relief and mandamus and statement of judicial

acts to be reviewed is denied. Appellant's motion to add the

tort of conspiracy to this cause is hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court of

Appeal, Third District

By /s/_ Evelyn A. Hillman

Deputy Clerk

ec: Kathleen M. O'Connor

Daniel Gonzales

/elm

App. 7

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1985

FRIDAY, APRIL 19, 1985

CASE NO. 84-1581

DANIEL G. GELLERT,

: Appellant,

Us.

EASTERN AIR LINES, INC.,

a Delaware corporation,

Appellee.

Upon consideration, appellant’s motion for rehearing is

hereby denied.

A True Copy

ATTEST:

LOUIS J. SPALLONE

Clerk District Court Of

Appeal, Third District

By 's)_ Evelyn A. Hillman _

Deputy Clerk

cee: Daniel Gonzales Gellert

Thornton, David & Murray

App. 8

IN THE SUPREME COURT OF FLORIDA

FRIDAY, MAY 24, 1985

CASE NO. 67,061

District Court of Appeal,

3d District — No. 84-1581

DANIEL GONZELES GELLERT,

Petitioner,

VS,

EASTERN AIRLINES, INC., ETC..

Respondent.

It appearing to the Court that it is without jurisdiction,

the Petition for Review is hereby dismissed. Dodi Publishing

Co. v. Editorial America, S.A., 385 So.2d 1369 (Fla. 1980).

No Motion for Rehearing will be entertained by the

Court.

A True Copy

TEST:

(Supreme Court Seal)

s)_ Sid J. White

Sid J. White

Clerk Supreme Court

ce: Hon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

Hon. Margarita Esquiroz, Judge

Mr. Daniel Gonzales Gellert

Thorton, David & Murray

App. 9

IN THE SUPREME COURT OF FLORIDA

MONDAY, JUNE 17, 1985

CASE NO. 67,061

District Court of Appeal,

3d District — No. 84-1581

DANIEL GONZALES GELLERT,

Petitioner/A ppellant,

EASTERN AIRLINES, INC., ETC.,

Respondent/A ppellee.

The Order of this Court dated May 24, 1985, is hereby

vacated.

It appearing to the Court that it is without jurisdiction,

the Petition for Review is hereby dismissed and no motion

for rehearing will be entertained by the Court.

It appearing to the Court that the District Court of

Appeal, Third District, did not declare invalid a State Statute

or a provision of the State Constituticn, and that, therefore,

it is without jurisdiction, this appeal is hereby dismissed

subject to reinstatement if jurisdiction is established on

proper motion filed within fifteen (15) days from the date of

this order. See Article V, Section 3(b\1), Florida Constitution.

App. 10

The brief of petitioner filed May 30, 1985, has been

treated as a motion for reinstatement and submitted to the

Court.

A True Copy

ATTEST:

(Supreme Court Seal)

/s/ Sid J. White |

Sid J. White

Clerk Supreme Court

cc: Hon. Louis J. Spallone, Clerk

Hon. Richard P. Brinker, Clerk

Hon. Margarita Esquiroz, Judge

Mr. Daniel Gonzales Gellert

Thornton, David & Murray

App. 11

SUPREME COURT OF FLORIDA

WEDNESDAY, JULY 24, 1985

CASE NO. 67,061

District Court of Appeal,

3d District — No. 84-1581

DANIEL GONZALES GELLERT,

Appellant,

EASTERN AIRLINES, INC.,

Appellee.

Upon consideration of the Motion for Reinstatement of

Appea! on Jurisdiction filed in the above cause by appellant,

and response thereto,

IT IS ORDERED that said Moticn be and the same is

hereby denied.

A True Copy

TEST:

(Supreme Court Seal}

/s/ Sid J. White

Sid J. White

terk, Supreme Court

ee: Hon. Louis J. Spallone, Clerk

Hon. Margarita Esquiroz, Judge

Hon. Richard P. Brinker, Clerk

Mr. Daniel Gonzales Gellert

Kathleen M. O'Connor, Esquire

App. 12

[JAN 16 1975}

interoffice correspondence EASTERN

TO: Capt. W.R. Krepling ADDRESS: MIAFX

FROM: William G. Beil, Jr. ADDRESS: MIALG

SUBJECT: Daniel Gellert DATE: January 13, 1975

Atiached is a letter from Gellert and his Certificate of

Sanity. This has created a whole new worry in my mind. His

high degree of sanity is in such stark contrast with the

other pilots that I know.

Tam going to be gone until January 20. Perhaps after

my return, we should get together on a letter that says

since he is sane, that letter to the FBI must have been pure

maliciousness, and the next time he does something like

that, we will act.

Meanwhile, he should be returned tc duty and paid

tor missed time on a trips missed basis. I would ignore all

the Type II claims, ete.

I worry somewhat about the quality of doctor we picked,

if $37.50 is half of his bill.

Js William G. Bell

William G. Bell. Jr.

Attachment

ec: Mr. W. R. Howard

Dr. J. A. Serrano

App. 13

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App. 14

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT, IN AND FOR

DADE COUNTY, FLORIDA.

GENERAL JURISDICTION DIVISION

Case No. 79-2402 (10)

DANIEL G. GELLERT,

Plaintiff,

-VS-

EASTERN AIRLINES, INC.,

a Delaware corporation,

Defendant.

Dade County Courthouse

73 West Flagler Street

Miami, Florida

May 18, 1984

Friday, 9:00 o'clock p.m.

The above-entitled matter came on for hearing before

the Honorable MARGARITA ESQUIROZ, Circuit Court

Judge, and jury, pursuant to Notice.

APPEARANCES:

DAVIS POPPER, ESQ.,

on behalf of the Plaintiff.

THORNTON, DAVID & MURRAY, P.A., by

BARRY L. DAVIS, ESQ., and

CALVIN DAVID, ESQ.,

on behalf of the Defendant.

App. 15

IN THE CIRCUIT COURT OF THE 11TH

JUDICIAL CIRCUIT IN AND FOR

DADE COUNTY, FLORIDA.

GENERAL JURISDICTION DIVISION

Case No. 79-2402 (10)

DANIEL G. GELLERT,

Plaintiff,

-US8-

EASTERN AIRLINES, INC.,

a Delaware corporation,

Defendant.

Dade County Courthouse

73 West Flagler Street

Miami, Florida

May 18, 1984

Friday, 9:00 o'clock p.m.

The above-entitied matter came on for hearing before

the Honorable MARGARITA ESQUIROZ, Circuit Court

Judge, and jury, pursuant to Notice.

APPEARANCES:

DAVIS POPPER, ESQ.,

on behalf of the Plaintiff.

THORNTON, DAVID & MURRAY, P.A., by

BARRY L. DAVIS, ESQ., and

CALVIN DAVID, ESQ.,

on behalf of the Defendant.

App. 16

x * * * -

(Whereupon, at 9:00 o’clock p.m. the jury announced

that they had arrived at a verdict.)

THE COURT: Have you reached a verdict?

JUROR NO. 5(MR. KNOWLES): Yes, ma'am.

THE COURT: Will the Clerk please publish the verdict.

THE CLERK: (Reading) “We, the jury, return the

following verdict:

“Number 1. Indicate in the appropriate space below

whether the statements attributed to Jim Ashlock, if made,

were either a false statement of fact or his own personal

opinion.

“Personal opinion” is checked off.

“Number 5. Do you find some fault on the part of

James Ashlock, employed at Eastern Airlines?”

Also nothing. There is nothing else here.

“So say we all, th’« 18th day of May, 1984.

“Max Knowles, foreperson.”

THE COURT: Allright. Just a moment, counsel.

MR. POPPER: Would you pol! the jury, your Honor?

THE COURT: Yes.

App. 17

Ladies and gentlemen, as I call your names, if the

verdict just read is your verdict, would you please state,

“That is my verdict’?

(Whereupon, the jury was polled, each member acceding

in their verdict.)

THE COURT: Thank you. Alli right.

(Thereupon, the proceedings were adjourned.)

* x * * *

CERTIFICATE

I, the undersigned authority, do hereby certify that the

foregoing is a true and correct Excerpt of the proceedings

had in the case of DANIEL G. GELLERT, vs. EASTERN

AIRLINES, INC., etc., Case No. 79-2402, before the Honorable

MARGARITA ESQUIROZ, Circuit Court Judge, at the time

and place herein set forth.

DATED at Miami, Dade County, Florida, this 30th day

of September, 1985.

is) LAWRENCE ARAYA,

Lawrence Araya,

C.S.R./R.P.R.

App. 18

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.