On appeal from Superior Court, Law Division, Ocean County.
Petrella, Baime and Ashbey. The opinion of the court was delivered by Petrella, P.J.A.D.
This appeal involves the somewhat murky and expanding law of defamation and implicates concepts involving public figures, matters of public concern and the applicability of the "actual malice" standard. A jury awarded a verdict of $7,000 in compensatory damages and $45,000 in punitive damages in favor of plaintiff Fred Vassallo in his defamation suit against defendant Wesley K. Bell. Defendant appeals on the ground that various errors were committed at trial. We reverse and remand.
Defendant Bell argues on this appeal that (1) the trial judge erred in determining that plaintiff Vassallo was neither a public official nor a public figure; (2) Vassallo failed to prove actual malice as required in this type of case; (3) the allegedly defamatory statements involved matters of public concern and a common law qualified privilege; (4) the charge to the jury was erroneous in various respects; (5) there was no basis to support an award of punitive damages, and (6) a punitive damage award is contrary to Article I, paragraph 6 of the New Jersey Constitution and to the Federal Constitution.
Plaintiff's complaint alleged that Bell, while mayor of Stafford Township, mailed a letter in 1983 to approximately 3,000 township voters which falsely stated that Vassallo had been dismissed as Municipal Building Inspector because of sexual harassment of female municipal employees and improper solicitation of campaign contributions while employed by the township. In his counterclaim Bell asserted that Vassallo had defamed him by publishing a 1981 letter stating that Bell was anti-Italian; that Vassallo had testified falsely during certain judicial proceedings arising from the recall election of defendant, and in other matters. Actions were filed by other former
municipal employees arising out of the publication of Bell's letter. Those matters were consolidated and were settled prior to trial, except for Vassallo's complaint and that of one Frank Carletto, the former chief of the township's police department.*fn1 The discussion that follows relates solely to the instant appeal unless otherwise stated.
In pretrial rulings the trial judge held that for trial purposes Vassallo was neither a public figure nor a public official, and that Bell was a public figure and a public official. At trial Bell's counterclaim was dismissed at the close of plaintiff's proofs.*fn2 After the jury returned its verdict defendant moved for a new trial or a remittitur. That motion was denied. At the hearing on the motion defense counsel represented that defendant's insurance carrier had decided to satisfy the compensatory damage aspect of the judgment.
In partial response to this appeal plaintiff points out that the jury's compensatory damage award has been paid, and thus he asserts, without citation of any authority, that we need only resolve issues raised concerning the efficacy of the punitive damage award. The matter has not been settled and the appeal was taken from the entire judgment. This was not a case where defendant was accepting the benefits of the appeal. See Adolph Gottscho, Inc. v. American Marketing Corp., 26 N.J. 229, 241-242 (1958); 4 C.J.S., Appeal and Error § 215. Almost all the cases applying a bar to an appeal refer to situations where a party accepts what is in effect considered a satisfaction of the judgment. But see Sturdivant v. General Brass & Machine Corp., 115 N.J. Super. 224, 227-228 (App.Div.1971).
A bar does not necessarily apply where there has been a voluntary payment of the judgment, or a partial payment as here. See Annotation, "Defeated Party's Payment or Satisfaction of, or other Compliance with, Civil Judgment as Barring His Right to Appeal," 39 A.L.R. 2d 153 (1955). Thus, it was said in Beronio v. Pension Comm'n of Hoboken, 130 N.J.L. 620, 622 (E. & A. 1943):
And the second ground for dismissal is equally untenable. Submission to the mandate of the writ was pursuant to a resolution adopted by the appellant commission reciting its decision to take an appeal from the judgment and advice given by the municipal attorney that the appeal would not act as a supersedeas. In these circumstances, there was no waiver or estoppel by acts or course of conduct inconsistent with the right of appeal. This is a right favored in the law; and it will not be deemed waived except for compelling reasons. Intent is an ingredient of waiver. The course taken here did not constitute a recognition of the validity of the judgment. Appellant conceived it to be its duty to satisfy the command of the writ, and made known that compliance was not to be deemed an abandonment of its right of appeal.
It is the prevailing rule that even the voluntary payment, performance or satisfaction of a judgment, unless made in compromise or settlement of the controversy, does not ex necessitate constitute a waiver of the right of appeal, especially where repayment or restitution may be enforced, or the effect of compliance may be otherwise undone, in the event of a reversal. 4 C.J.S. 409, et seq. Moreover, the subject-matter of the action is of public concern. [ Id. at 622.]
Indeed, there is less reason for a rule of abandonment of an appeal where it is the judgment debtor who makes the payment. An appeal does not automatically stay a judgment, R. 2:9-5, and in addition to enforcement proceedings, a stay may be conditioned upon the posting of a bond or payment into court. See R. 2:9-6. Interest continues to run on a judgment and the payment stops the running of interest on the amount paid. There is also an element of public interest and concern in this appeal which militates against our declaring the appeal "moot" as to the compensatory damage aspect of the jury verdict. Hence, we consider all issues in the case before us on this appeal.
Before addressing defendant's legal contentions a review of the facts is necessary for an understanding of this appeal. Vassallo was appointed Construction Code Official for Stafford
Township on January 1, 1981. His duties included those of building inspector, sub-code inspector and construction official. Vassallo also served as chairman of the Township's Board of Health and was a member of the Township's Municipal Utilities Authority. In addition, he held positions as building inspector or code enforcement official in five other municipalities in the area. Vassallo had also been active in Democratic party politics. He worked closely with Bell, who had been his friend, in a number of political campaigns, assisting in the raising of campaign funds.
Vassallo testified that around July 24, 1981 Bell came to his house and asked him to sign a letter of resignation from his municipal positions. Both Vassallo and his wife testified that when he refused to sign the letter Bell said, "If you don't, I'll get you one way or the other." According to Vassallo, Bell requested his resignation because he thought Vassallo was becoming too popular and influential in the township. Similar testimony was elicited from Thomas Powers, a former political ally of Bell and a former councilman. Powers testified that he was at Bell's home where ways of "getting rid" of Vassallo were discussed. In particular Bell having spoken to a councilman, learned of an alleged sexual harassment incident involving Vassallo and a municipal employee. This was to be the basis for discharging Vassallo.
Bell testified that political considerations had not motivated his attempt to discharge Vassallo. Rather, it was based on complaints he had received that Vassallo was "sexually harassing" township employees, and improperly soliciting campaign contributions on township time and while using township vehicles. Bell testified that in June 1981 Councilman Sorentino informed him of an incident of sexual harassment regarding a female employee in the tax office. The female employee testified that in April 1981 Vassallo wanted to go to lunch with her and reservations were made at Ocean Acres Country Club for Vassallo, herself and a third party. However, only Vassallo attended on the day set for the lunch, and then he asked the
woman to look at a house he was allegedly thinking of buying to give him an opinion on its value based upon her experience in assessing property for tax purposes. The employee testified that they drove to the house in separate cars, since they had driven to the country club separately. After Vassallo opened the door to the house with a key that he had, she said he then made a "pass" at her and tried to touch various parts of her body. She responded by "slugging" plaintiff, walking out of the house and returning to the municipal building where she told her superior of the incident. She made no other complaint until subsequently asked about it by a member of the township council. This employee also testified that for some time thereafter plaintiff would stand in front of the glass door to her office and "blow kisses" at her.
Vassallo denied these allegations. He said that the female employee had suggested the luncheon appointment and picked the country club because she wanted to see some construction going on at the location. He said that the woman had heard of a house for sale in the area owned by former Congressman Helstoski and wanted to see it. Vassallo, a former member of Helstoski's staff, went to the realtor and obtained the key and met the tax office employee at the house. According to Vassallo, the woman made a "pass" at him, and he refused her advances. He said he later told the woman that this was just between the two of them, and that he would not say anything about it.
According to Bell, when he heard about the incident he informed the other members of the council. Two councilmen were authorized to conduct an investigation and report back. In the meantime, Bell went to plaintiff's house and asked for his resignation. He said he made the request based on Vassallo's prior promise to him that "any time you want me to resign, I will." Bell told Vassallo that he wanted no "sex scandal" in the township because it might hurt his chances of being elected a State senator.
Plaintiff apparently had a reputation of being a "lady's man." Bell learned from his wife about another incident in April 1981 involving a different female municipal employee. Bell's wife was in the municipal building and met Vassallo who asked her if she wanted to see something. They then walked into a female employee's office and plaintiff proceeded to kiss the employee on the ear. That employee testified about the incident and stated that while she was not happy about it, she did not feel sexually harassed. Vassallo acknowledged in his testimony that he liked to show affection to women in public by hugging or kissing them, and stated that no one had ever objected to his actions. Several female township employees testified on plaintiff's case that they knew Vassallo and were not offended by his actions.
Bell testified that he had also learned about Vassallo improperly soliciting campaign contributions for Bell's intended campaign for State senator. Bell's wife, as campaign manager and township Democratic chairperson, was planning a concert at some point in 1980 or 1981, and had prepared a list of persons to be approached about the purchase of tickets or advertising in a program to be distributed at the event. Vassallo was working on this fund raiser and had been given part of the list. According to Bell, at some time thereafter, he received a complaint that Vassallo was selling tickets on township time and while using a township vehicle. He could not identify the source of these complaints at trial, but stated that he felt that this was improper and had told Vassallo to stop because he thought that solicitation of political funds on township time presented an appearance of impropriety. Vassallo admitted making such solicitations, but said that he only did so after his part-time employment was completed at 12 noon, and that the solicitations were made using his private car.
Based on those allegations the municipal council suspended Vassallo from his position and brought formal charges seeking his removal from his municipal positions. A hearing was held in which Bell did not participate because his wife was to be a
witness. Because the trial judge ruled that the resolution of the municipal charges was not evidential, we are unaware of the outcome of that hearing.*fn3 Bell began a new four-year term as mayor on July 1, 1983.
Some time in 1983 a group calling itself "Get Rid of Wes" (GROW) organized to obtain signatures on a petition to recall Bell. Vassallo had now changed political parties and become a Republican and was active in the recall effort. He asserted that the recall had nothing to do with his dismissal or that of various other municipal employees, but was based on Bell's alleged mismanagement of township affairs and a recent increase in the municipal tax rate. Bell asserted that Vassallo had made the removal attempt an issue in the recall campaign along with allegations that Bell was anti-Italian.*fn4
As a result of GROW's efforts a recall election was scheduled and a campaign mounted. Bell asserted that the firing of Vassallo and other individuals had become a campaign issue. He thus wrote a letter in November 1983 discussing the dismissal of seven former municipal employees, including Vassallo, which stated as to plaintiff:
1982 Fred Vassallo -- Building Inspector. Dismissed because of sexual harrassment [sic] of female employees in the municipal building and seeking and accepting monies from developers, builders and contractors on Township time, in a Township owned vehicle.
The letter was sent on stationery of the "Mayor of Stafford Township" in November 1983 to about 3,000 registered voters, according to Bell, to let them know that there were legitimate reasons for the action in dismissing defendant and other employees. In any event, Bell lost the recall election which was held on December 6, 1983 by a two to one margin.
The contents of that letter formed the basis for Vassallo's complaint that he was libeled, and that the letter had affected his relationship with friends and family. He also asserted that he was deprived of opportunities to participate in various business dealings because of that letter.
Prior to the start of trial the judge ruled that allegations of sexual harassment contained in the letter constituted libel per se. The trial judge declined, without stating findings or reasons, to rule that plaintiff was either a public official or a public figure. A determination with respect to those categories is important both from the ...