For reversal -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None.
The defendant moved to strike one count of an amended complaint, before answer filed, as failing upon its face to state a claim upon which relief can be granted, R.R. 4:12-2(e). The Law Division granted the motion as to certain allegations thereof and ordered plaintiffs to file and serve a further amended complaint deleting the stricken portions. The Appellate Division affirmed on plaintiffs' appeal from this interlocutory order, allowed by leave of the court. 95 N.J. Super. 122 (1967). We granted plaintiffs' petition for certification. 50 N.J. 290 (1967).
The primary issue projected in the lower tribunals, by the petition for certification and through the briefs of the parties here is an abstract one -- whether an absolute privilege extends to any communication made to a municipal governing body by an objector to a variance recommendation before that body for final action under N.J.S.A. 40:55-39 (d), following a favorable referral by the Board of Adjustment. The question is presented in substantially a factual vacuum. All we have are the pleadings, quite vague in important particulars, with some slight factual augmentation allowed by the Appellate Division, plus some statements of counsel in oral argument which are incomplete and unconfirmed by any of the usual methods of establishing facts.
The background of the situation is clear enough. Plaintiffs are residential builders and developers. In 1964 the holding corporation sold a dwelling to defendant which had been newly built by the construction company (the individual plaintiff is the president of both corporations) in its Stonehurst development, located in Freehold Township, Monmouth County. After taking possession, defendant made complaints of structural defects. Some were remedied, but he remained dissatisfied and an acrimonious dispute developed, which grew into a community tempest, coming to involve other residents, the municipal governing body, the press and various courts as well.
The original complaint in this cause, filed in August 1965, represented one aspect of the controversy. It charged defendant, in three counts, with tortious interference with economic advantage and defamation of plaintiffs' professional reputation by reason of an alleged deliberate campaign of false and malicious statements to the township governing body, the press and individuals derogatory of plaintiffs' construction procedures and performances, which it was claimed were calculated to and did disrupt plaintiffs' completion of the development and sale of houses therein and injure their good names as builders. Defendant counterclaimed for damages asserted to result from alleged defects in his house and filed a third party complaint against the township engineer, and the township as his superior, for damages claimed to flow from the engineer's issuance of a certificate of occupancy for the house without, allegedly, having inspected the same.
Before the suit was reached for trial, plaintiff, upon leave granted, filed an "amended complaint" in April 1966, adding a fourth count, which is the subject matter of the present appeal. The count is actually supplemental rather than amendatory, for it only adds additional alleged tortious acts of defendant occurring after the filing of the original complaint, claimed to be in furtherance of his deliberate scheme to maliciously defame plaintiffs and interfere with their economic advantage. It first alleges, and there is no dispute as to this, that on March 1, 1966 the township Board of Adjustment recommended that the plaintiff holding company be granted a special use permit and variance to erect 48 units of multi-family garden-type apartments in its development and forwarded the recommendation to the township governing body for final action pursuant to N.J.S.A. 40:55-39(d). It then charges that defendant thereafter solicited other residents of the development to attend the township committee meeting, at which action would be taken, for the purpose of voicing frivolous objections and in other ways sought to create a hostile atmosphere and bring pressure
to bear upon certain members of the governing body to cause unfavorable action on the variance.
Then come the three vague paragraphs of the complaint, quoted in full by the Appellate Division, 95 N.J. Super., at p. 126, setting forth alleged acts of the defendant at the governing body meeting on March 28, 1966. They represent the allegations of conduct which were the main object of defendant's motion to strike on the ground of absolute privilege. For present purposes they may be summarized as asserting that defendant, at the conclusion of the discussion of the matter by the governing body (without indicating the nature of the discussion), disrupted the meeting and presented the officials present with copies of "a letter" (in no way indentified or particularized), made "certain public statements" (also not particularized), and "permitted said letter to be read in full", which letter and statements maliciously and falsely characterized the holding company "as having acted wrongfully and improperly in connection with the application aforesaid" (again without any specification). A later paragraph asserts the admitted fact that the variance was disapproved at the meeting, allegedly because of defendant's statements. (We are advised that subsequent litigation between the holding company and the township upset this determination, at least in part).
The defendant sought no particularization by discovery before making his motion to strike and very little even informal light on the nature of the meeting or what really happened at it was shed at the motion hearing. The argument was essentially an abstract one, the defendant contending that, because the proceeding on the variance recommendation before the governing body was quasi -judicial in nature, absolute privilege was afforded to whatever he said or did there, on the basis of the decisions in Rainier's Dairies v. Raritan Valley Farms, Inc., 19 N.J. 552 (1955), Fenning v. S.G. Holding Corp., 47 N.J. Super. 110 (App. Div. 1957), and Middlesex Concrete Products and Excavating Corporation v. Carteret Industrial Association, 68 N.J. Super. 85
(App. Div. 1961). These cases held that the absolute privilege accorded to statements during judicial proceedings also applied to the communications there involved made in the course of certain quasi -judicial administrative proceedings or in connection with judicial proceedings. Plaintiffs urged that the principle of those decisions does not extend to the type of matter before ...