On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
King, Dreier and Gruccio. The opinion of the court was delivered by Dreier, J.A.D.
Defendant appeals from the dismissal of his libel counterclaim. On June 25, 1990 defendant, an attorney practicing in Middletown Township, made allegedly defamatory statements
concerning plaintiff, at that time a sergeant in the Middletown Township police force. The statements were made at a public meeting of the Middletown Township Committee. Plaintiff, employing a private attorney, instituted a slander action against defendant. Defendant counterclaimed alleging that plaintiff had libeled him in a report of a police background investigation performed by plaintiff as part of plaintiff's official duties. Defendant had applied for an appointment as a Middletown Township police officer and had passed the competitive examination, placing fifth on a list of 29. The background investigation was required as part of the appointment process. The Township Administrator, as the appointing authority, removed defendant's name from the eligible list. The reasons given were "false statements on application, incomplete application, derogatory background investigation." Defendant appealed this action to the Merit System Board which sustained the Administrator's action. Defendant has appealed that decision to this court, and we have on this date affirmed the Merit System Board decision. Loigman v. Merit System Board, Docket No. A-3612-90T1. In the course of discovery in defendant's application to the Merit System Board to overturn his rejection, defendant received a copy of the background report prepared by Pollinger.
On June 25, 1990 the Middletown Township Committee was considering a proposed ordinance to establish procedures for assigning police officers to extra-duty traffic assignments on construction jobs. The officer in charge of the assignment process was Pollinger. During the public hearing on the proposed ordinance, Loigman criticized the ordinance and various actions of the Township Committee, called Pollinger "an inveterate liar," and further claimed that he would use the ordinance "to line the pockets of his friends." Pollinger's defamation action based upon these statements was dismissed by the trial Judge (a different Judge than the one who heard arguments
concerning the counterclaim).*fn1
When the complaint was dismissed, Pollinger's attorney requested defendant to dismiss his counterclaim. This request was refused. Although plaintiff has argued that conditions of the refusal should be considered by us in appraising defendant's good faith, defendant's letter stating the conditions clearly noted that it was a settlement offer, the terms of which should be barred by Evid. R. 53. The Rule provides:
[e]vidence that a person has in compromise . . . offered . . . a sum of money or any other thing, act, or service in satisfaction of a claim, is inadmissible to prove the invalidity of the claim or any part of it . . . .
If, however, any portion of the offer of compromise is relevant to an issue other than the validity of defendant's counterclaim, it may be considered. Rynar v. Lincoln Transit Co., Inc., 129 N.J.L. 525, 528-529, 30 A.2d 406 (E. & A.1943).
Following the unsuccessful attempt to settle the claim, the Middletown Township attorney was substituted for Pollinger's personal attorney upon the determination by the Township that Pollinger's alleged liability was occasioned solely because of his official position. The trial Judge dismissed the counterclaim, finding that Pollinger's statement in his report was absolutely privileged. The Judge stated:
[Plaintiff's attorney] then quotes from the case of Erickson versus [ v. ] Marsh and McLennan, 117 N.J. 539, 563 [569 A.2d 793], (1990). And the language there, as far as this Court is concerned, is right on point which says that, although -- a ...