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Cali Associates v. Borough of Caldwell


August 5, 2009


On appeal from Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C-848-83E.

Per curiam.


Argued January 13, 2009

Before Judges Skillman, Graves and Grall.

Following a bench trial on plaintiffs' claim of tortious refusal to deal, the court found defendants liable and awarded plaintiffs damages and interest in the total amount of $1,459,283. Plaintiffs Cali Associates and Lougheed Associates appeal, and defendants Prudential Insurance Company of America, Automatic Data Processing, Inc. (ADP) and Bellemead Development Corporation cross-appeal.

This is the fourth appeal involving this litigation about access to a sewage treatment plant in the Borough of Caldwell which serviced the Borough of Roseland. On each prior appeal, we determined the validity of separate claims and remanded for further proceedings. In Cali Assocs. v. Borough of Caldwell, No. A-5386-90 (App. Div. Dec. 23, 1992) (slip op. at 5-6), we held that the Borough of Caldwell had unlawfully delegated to defendants its responsibility to allocate access and remanded for reconsideration of plaintiffs' antitrust claims. In Cali Assocs. v. Borough of Caldwell, No. A-600-93 (App. Div. Apr. 5, 1995) (slip op. at 5-6), we affirmed a grant of summary judgment in favor of defendants on their antitrust claims and remanded "to enable the trial court to determine damages if any, to which plaintiffs are entitled apart from the antitrust statutes." In Cali Assocs. v. Borough of Caldwell, No. A-466-96 (App. Div. May 21, 1998) (slip op. at 6), we held that the defendants' success on the antitrust claim did not insulate "them from common law liability for a tortious refusal to deal" which must await a "factual determination based on plaintiffs' proofs" of malice at trial. The only claim before the trial court on the final remand was tortious refusal to deal.

In 1979, each one of the parties to this litigation had plans to develop property in Roseland. These were not joint ventures; each party had its own projects in mind. Nonetheless, the parties encountered the same problem - a lack of adequate capacity for treatment of the additional volume of wastewater that their projects would produce.

At that time, Roseland's wastewater was treated in a facility operated by Caldwell, which was already receiving more wastewater than it could treat. The inadequacy of Caldwell's treatment facility had not escaped notice; on January 11, 1979, the New Jersey Department of Environmental Protection (DEP) issued an administrative order directing Caldwell to "cease approving any new sewer extensions to its sewerage system which will or may contribute flow to [its] Treatment Plant." In March 1979, DEP relaxed the restriction to permit extensions that would contribute 2000 or fewer gallons per day (gpd).

During the same period, DEP established an infiltration/influx reduction program to reduce the volume of water treated in Caldwell's facility. As aptly described in plaintiffs' brief, the concept of that program was rather simple. It involved removal of extraneous water from sewer systems serviced by the Caldwell Waste Treatment Plant through efforts by the developers such as pipe replacement, leak repair, manhole cover sealing and the like. For every two gallons per day eliminated, a developer would earn a credit authorizing use of one gallon per day capacity. The potential for success was limited by the volume of influx and infiltration attributable to such defects. Although the concept of this two-for-one infiltration/influx program was simple, implementation required identification of points of entry, a plan for correction, completion of the excavation and repair or construction, confirmation of the gallon-per-day reductions achieved, and ultimately issuance of permits authorizing contribution at a rate of one-half the volume of extraneous water removed from the system.

Prudential planned to build four office buildings on two hundred acres for its own use and estimated a need for a sewerage permit authorizing input of approximately 151,000 gpd. ADP expected it would need authorization for 64,000 gpd to obtain approval for construction of three office buildings for its use on a fifty-acre property it purchased from Bellemead in 1978. Bellemead, a real estate developer, planned to establish a corporate center consisting of eight buildings remaining on its tract after the sale to ADP. Bellemead's engineer estimated that the project would require sewerage permits for 80,000 to 85,000 gpd.

Bellemead and Prudential, proceeding individually, each obtained DEP's early, preliminary approval to participate in this program - respectively, on April 12 and 17, 1979. Prudential promptly acted on its approval.

On May 9, 1979, Caldwell and Prudential reached an agreement under which Prudential would proceed with the necessary work in consultation with an independent engineering firm, Elson T. Killam Associates, Inc. Prudential, at its expense, agreed to provide a preliminary engineering investigation and a proposal for structural improvements from Killam, complete the work and demonstrate the reductions in infiltration/influx achieved. Prudential was obligated to obtain approvals at each stage of the project from the responsible state and local authorities as well as specified insurance coverage for itself and Caldwell and a performance bond. After completing the work to Caldwell's satisfaction, Prudential could not utilize the credits without a permit from DEP.

Prudential agreed to eliminate a minimum of 40,000 gpd, enough to permit Prudential to proceed with a development project that would contribute 20,000 gpd to Caldwell's treatment plant. And, Caldwell agreed to allow Prudential to complete additional improvements under the same terms either on its own or by contracting "with any third party or third parties having need for sewerage capacity in the Caldwell sewerage district." Participating third parties would then become entitled to discharge into the Caldwell system at the same rate with a final approval from DEP. On June 21, 1979, DEP approved ADP's participation with Prudential conditioned on Caldwell's acceptance.

Bellemead pursued a different plan, diversion of wastewater that would otherwise be treated at the Caldwell plant to plants in other municipalities. Bellemead sought and acquired preliminary approval for a two-for-one credit for the volume decreased by its diversionary project.

On April 7, 1980, DEP reported to Caldwell's Mayor on proposals it had approved and its intention to deny future applications requesting participation on the same terms:

As an alternative to eliminating infiltration from the system, Bellemead Corporation has requested capacity in exchange for diverting wastewater from existing wastewater systems within the Caldwell Borough sewer service area (5-Borough district).

The purpose of this letter is to advise you that this type proposal is acceptable to us on an interim basis provided the ratio of diversion to requested capacity is two to one.

The only amount of flow we will approve for treatment at the Caldwell plant with an interim diversion or infiltration elimination proposal is as follows:

1. Bellemead Corporation - 100,000 GPD

(200,000 GPD diverted or average daily

infiltration removed).

2. Prudential Insurance Co. - 20,000 GPD

(40,000 GPD diverted or average daily

infiltration removed).

3. Automatic Data Processing, Inc. - 15,000

GPD (30,000 GPD diverted or average daily infiltration removed).

The Department has made commitments to approving connections for these corporations provided they removed sufficient infiltration on a two for one basis.

These proposals are the only ones we shall approve in the amounts specified above. No additional proposals by these or any new corporations will be approved utilizing a 2 for 1 I/I removal program.

The Department will not issue any additional sewer extension approvals in the Caldwell service area until the actual and/or committed flow to the Caldwell STP is less than the treatment design capacity and provided that effluent limits are being met.

On July 26, 1980, Caldwell authorized Prudential and ADP to commence work on a portion of the improvements suggested in the Killam report, and that work was completed by November 1980. Upon completion, Prudential and ADP achieved a 125,100 gpd reduction, allowing new capacity of 62,550 gpd. They had immediate use for 35,000 gpd, 20,000 for Prudential and 15,000 for ADP, but both had plans for subsequent development.

In August 1980, Angelo Cali and his brother met with Richard G. Horvath, of Prudential, and discussed the sewer situation in Roseland. Thereafter, the plaintiffs, like Bellemead, pursued different options.*fn1 On October 30, 1980, Angelo sought DEP's approval to build a temporary wastewater treatment plant on his development site, which would eliminate the need to add any wastewater to the Caldwell system until the capacity was available. Angelo wrote:

As we understand it, the Caldwell Treatment Plant, to which Roseland is a contributor, is under a sewer ban. We understand also that there are negotiations and plans and studies for improving the Caldwell plant and diverting some or all of the sewage, presently going into the Caldwell Plant, to the Two Bridges Treatment Plant in Lincoln Park. In all likelihood, these plans will not be realized for a long time.

We are therefore seeking [an] alternative solution to the sewerage problems, so that we may build additional buildings as early as possible. This letter is a request for permission to build a temporary treatment plant on our site, the operation of which would terminate upon the realization of any of the permanent regional sewerage solutions.

On November 13, 1980, the Mayor of Caldwell advised DEP that Prudential and ADP had eliminated 125,100 gpd from Caldwell's system. DEP did not approve the work until February 5, 1981, and DEP did not issue Prudential's permit until March 12, 1981.

By November 1980, Bellemead had obtained information about the infiltration/influx program but was still pursuing its diversionary plan. By letter of April 24, 1981, Bellemead sought formal approval of the specifics of that plan from DEP.

The proposal involved Caldwell, North Caldwell and Fairfield. An internal memorandum reflects Bellemead's knowledge that all of the work identified in the Killam report had not been completed and Bellemead's belief that its plan for diversion was more cost effective.

In April 1981, DEP rejected Angelo's October 30, 1980 request to build a temporary treatment plant for its own use. Angelo then inquired of Prudential about use of the Killam report. In response to Angelo's inquiry, Horvath explained the circumstances under which Prudential would make the Killam report available.

This is in response to your request to use the I/I survey which was prepared for Prudential by Elson T. Killam Associates. Prudential is prepared to sell its proprietary interest of the I/I survey to any and all parties on a pro rata share basis. We have already had an in-depth inquiry from the Bellemead Development Corporation for a request similar to yours. Pursuant to the above, Prudential would make the survey available to you for review and possible I/I corrective work at a pro rata share of the survey cost (based on gallons) so as to enable you to obtain the necessary approvals to connect your contemplated new building to the Caldwell sewer system.

There have been indications that the New Jersey Department of Environmental Protection (DEP) does not favor I/I repairs and may not give any further I/I approvals. We, therefore, suggest that your first step is to consult with and obtain an approval for the I/I approach from the DEP. We recognize the nature of the problem but as you know Prudential has no authority regarding any sewage approvals.

I will be happy to discuss this with you after you discuss it with the DEP.

At the same time, ADP and Prudential were assessing their needs. Horvath's file notes memorialize a discussion with Fred Lafer, of ADP, on July 10, 1981. The work they had done had reduced the volume of wastewater by 55,000 gpd more than they required for their initial projects, leaving a 27,550 gpd credit. ADP had an immediate need for 13,750 gpd for a second project and was considering approaching DEP to gain approval to use those credits. They also discussed Bellemead's activities and Angelo's interest in using the Killam report.

On July 20, 1981, DEP recognized that Bellemead's plan for diversion, which DEP had previously approved, could not be implemented due to Bellemead's inability "to obtain necessary local approval for the diversion plan." On that ground, DEP determined to honor its "prior written commitments" to allow Bellemead one gallon of capacity for every two gallons eliminated if Bellemead removed infiltrate and influx by another method approved by DEP.

Bellemead again approached ADP, reported DEP's approval of its participation in the infiltration/influx program and sought access to the Killam report. On July 24, 1981, representatives of ADP and Prudential met. They discussed ADP's plan to seek immediate approval to use the credits it had acquired and Bellemead's interest in participating in the program. They also discussed future needs of their own development projects and the possibility of preserving an option to purchase any excess credits resulting from Bellemead's work. At that point, ADP anticipated a need for an additional 20,000 credits.

Stressing that Prudential should not proceed with Bellemead until it saw DEP's grant of approval to that company, Horvath recommended that Prudential not "deny reasonable requests." Horvath also noted "the need to consider Angelo's possible interests." One of the several immediate steps Horvath recommended was communication with Angelo.

After an internal meeting on July 30, 1981, Prudential's representatives agreed to speak to Angelo and negotiate with Bellemead about the terms and conditions for its use of the Killam report, including an option for Prudential to purchase 10,000 of the credits Bellemead would acquire. After that meeting, Horvath called Angelo and suggested that he contact Herman C. Simonse, Executive Vice President of Bellemead. Angelo agreed to send Simonse and Horvath a copy of a letter to DEP seeking approval to participate in the infiltration/influx program, which he had not yet obtained.

Angelo first wrote to DEP about using the Killam report on July 31, 1981:

It is our understanding that the Caldwell treatment plant, to which Roseland is a contributor, is under a sewer ban. The Prudential Insurance Company of America, the [Bellemead] Development Corporation, and Automatic Data Processing Company also own land in Roseland and are constructing or planning to construct office buildings. We understand that in order to do so, they have arranged to connect to the Caldwell sewer system, the justification for such connection being the reduction of two (2) gallons of storm water infiltration into the Caldwell system in exchange for one (1) gallon of discharge from the buildings.

We are purchasing a share of the Prudential survey for I/I correction to enable us to build our building under the same authority as they.

This letter is a request for guidance from your department in the procedure and requirements necessary for formal approval.

On the same day, Angelo sent Simonse a copy of the letter.

On August 20, 1981, DEP denied Angelo's request:

I reviewed your July 31, 1981 letter relative to your Company's proposed plan to construct an office building in the Borough of Roseland.

In reference to your request, the Department's policy is that it will not allow any new company or corporation to construct in the area if their sewage needs are to be satisfied by the removal of extraneous flow on a ratio of 2:1. This policy was recited in our correspondence of April 7, 1980 to the Borough of Caldwell. In the April 7th letter it stated:

'No additional proposals by these or any new corporation will be approved utilizing a 2 for 1 I/I removal program. The Department will not issue any additional sewer extension approvals in the Caldwell service area until the actual and/or committed flow to the Caldwell Sewage Treatment plant is less than the treatment design capacity and provided that effluent limits are being met.'

Inasmuch as the above conditions are not being met, this office cannot entertain your proposal.

Plaintiffs acknowledge that after receipt of this letter, "Angelo Cali was left with the belief that the State would not permit him under any circumstance to utilize I/I capacity."

On November 5, 1981, after months of negotiations, Bellemead, Prudential and ADP reached an agreement giving Bellemead the right to use the Killam report to complete the remaining projects for a per-gallon price calculated with reference to the cost of the Killam report and the number of gallons per day eliminated. They anticipated removal of as much as 170,000 gpd from the Caldwell system. In that agreement, Prudential and ADP expressly disclaimed any representation or warranty about the results Bellemead would achieve or about the outcome of DEP's decision to approve an award of credits at a two-for-one ratio upon completion of the work. Prudential and ADP each reserved an option to repurchase 30,000 gpd and agreed to give Bellemead a right of first refusal if either exercised an option and subsequently determined to resell those credits.

On July 13, 1982, Caldwell passed a resolution acknowledging that Bellemead had reduced infiltration by 166,100 gpd and influx by 12,700 gpd, a total of 178,800 gpd, ultimately resulting in a credit of 89,400 gpd. A credit in that amount was recognized in a subsequent amendment to the July 13 resolution.

At that point, all improvements identified in the Killam report had been made. DEP then took the position that Caldwell could allocate credits for which DEP had not issued approvals. Subsequently, DEP told Angelo that the agency had not understood that his request of July 30, 1981 was a request for approval to make improvements in accordance with the Killam report.

Armed with information about DEP's position, Angelo expressed interest in purchasing capacity Bellemead did not need. Bellemead's reaction was negative. Daniel Brachfeld, Executive Vice President, was concerned that Bellemead had "hardly enough capacity to satisfy [its] own needs, especially if" Prudential and ADP were to exercise their options. He noted that Bellemead would be short if it decided to pursue a plan to build a hotel, which it had tabled. He indicated that even if Bellemead did not need the credits, it had no intention of selling them to Angelo, a competitor, and did not favor a meeting with Angelo. ADP thought it needed all of the credits it had.

On August 16, 1982, Horvath met with the plaintiffs, who thought they needed about 9,000 gpd capacity. Horvath told them that Prudential, ADP and Bellemead were intertwined and that it would be difficult to act independently. Bill Wachenfled, of Prudential, suggested that each of the three companies offer to sell Angelo credits for 3000 gpds.

By October 4, 1982, Horvath was recommending exercise of Prudential's option unless it "clearly does not intend to develop the property in the foreseeable future." Noting that Caldwell's long-term solution to the limited capacity at its treatment plant was five or more years away, Horvath summarized: "[W]hile it is not possible to determine with certainty the building plans for the remaining land we own in Roseland, we think it is prudent to secure our rights to sufficient sewage capacity so that we will not be restricted or handicapped concerning future development of the property."

By November 8, 1982, DEP's position was that allocation of credits for reductions attributable to the work of Prudential, ADP and Bellemead was the responsibility of Caldwell, except for those previously and expressly approved by DEP. The number of credits DEP viewed as uncommitted, a matter in dispute until April 7, 1983, was eventually fixed at 21,950 gpd.

On February 1, 1983, Angelo wrote to the Mayor of Caldwell and asked the Mayor to "please reserve" 20,000 of the credits from the infiltration/influx program for allocation to plaintiffs' proposed 150,000-square-foot office building. In response Caldwell's attorney advised, "By virtue of prior agreements, all capacity at the Caldwell Waste Water Treatment Plant made available by the Infiltration/Inflow Program was allocated to the parties to said agreements."

Plaintiffs commenced this litigation on March 1, 1983. By December 7, 1983, plaintiffs had altered the plans for their building to diminish the volume of wastewater it would produce to an amount that would not exceed 2000 gpd. By administrative consent order of 1987, DEP reimposed the sewer extension ban of 1979.

Ultimately the defendants completed the following projects on their property. Prudential built three of the four buildings contemplated. ADP built two and, for reasons of economy, purchased a third instead of building. Bellemead built six office buildings in its corporate park and attempted to acquire approval for construction of a townhouse development on a separate property.


Consistent with this court's remand, at trial plaintiffs sought to establish that defendants' conduct constituted a tortious refusal to deal. This tort permits liability based on refusal to do business despite the general rule under which parties have no obligation to contract with one another. See Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 753 (1989); Van Natta Mech. Corp. v. Di Staulo, 277 N.J. Super. 175, 183-86 (App. Div. 1994).

This court has acknowledged that "the right of one party to refuse to deal with another is not absolute" and has recognized that there are exceptions in which liability is properly assigned based on refusal to deal. See Van Natta, supra, 277 N.J. Super. at 183 (and cases discussed and cited therein). Plaintiffs' theory of liability was that each defendant's refusal to sell sewerage capacity credits was "part of a concerted refusal by a combination of persons" in which each was a participant. Restatement (First) of Torts § 762(c) (1939); see Van Natta, supra, 277 N.J. Super. at 183 n.3 (discussing § 762's deletion from the Second Restatement). As plaintiffs acknowledge, under our decisions they were required to establish that defendants acted with malice. Id. at 182. It is clear that combined efforts that are individually excused or justified do not become actionable simply because of cooperation by the actors. See Prosser on Torts § 130 at 955 (4th ed. 1971); see generally Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177-78 (2005) (discussing the elements of civil conspiracy).

In the context of business dealings, malice requires proof of harm "inflicted intentionally and without justification or excuse." MacDougal v. Weichert, 144 N.J. 380, 404 (1996) (discussing malice in connection with a claim of tortious interference with prospective business relationships). "That inquiry must focus on the propriety of the defendant's actions in the context of the case presented." Ibid. Even where there is a fiduciary duty imposed on a private professional organization to admit others to membership, denial of admission is actionable only to the extent that it is based on "arbitrary and unreasonable" grounds. See Falcone v. Middlesex County Med. Soc'y, 34 N.J. 582, 598 (1961). What occurred here, reservation of sewerage capacity by developers who generated it in reasonable anticipation of their needs, is conduct that has been held to be neither arbitrary nor unreasonable. See Sudler v. Envtl. Disposal Corp., 219 N.J. Super. 52, 55-56, 63-64 (App. Div.), certif. denied, 109 N.J. 56 (1987).

The trial court found that plaintiffs failed to establish malice, which is an essential element.*fn2 In its letter opinion of February 26, 2004, the court stated, "The record does not support a finding of malice on the part of defendants nor does the record support the award of punitive damages." The court elaborated in its oral decision of August 4, 2006.

[The] purposeful behavior on the part of the defendants to control the sewer capacity for their own business purposes and in so doing denying the outsiders that capacity . . . is normal commercial behavior in these circumstances, and I find [no] malicious behavior, or behavior which defendants knew to be unlawful or tortious[;] that lack of malice or intent will insulate them from punitive but not actual damages.*fn3

These findings are supported by substantial credible evidence in the record and preclude imposition of liability for tortious refusal to deal. Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974).*fn4 The sewerage capacity available in Roseland was a persistent problem throughout the relevant period. These defendants all owned undeveloped property prior to the imposition of the sewer extension ban and had plans, albeit not definitive or incapable of adjustment in the face of unforeseen events, to develop that property. Plaintiffs knew about Prudential's solution to the problem but looked for an alternative. When plaintiffs changed course and decided to acquire credits by doing the work recommended in the Killam report, defendants, with good reason based on their experience and DEP's communications, asked Angelo to secure DEP approval first. That is exactly what Prudential did before proceeding to work with ADP, and it is what Prudential and ADP did before they commenced negotiations with Bellemead.

Plaintiffs acknowledge that Angelo believed DEP approval was required and did not pursue participation in the work after DEP denied approval. There is no evidence that any defendant did anything to influence DEP's decision about Angelo in 1981.

When Angelo later learned that DEP did not object to its use of the Killam report or credits generated by the defendants utilizing that report, the project work had been completed. At that point, defendants deemed it prudent to retain the credits they had acquired in light of their future plans and the government's failure to provide a solution that would accommodate the projects they had in mind. Bellemead's reluctance to provide credits to a competitor at risk to its own business prospects, as the trial court found, was consistent with Bellemead's commercial interests. There is no evidence that any defendant's estimate or opinion on its future need for sewerage capacity was unreasonable.

In short, the individual refusals to sell were based on and justified or excused by the defendants' individual assessments of their future needs. No defendant acted to override another defendant's decision to sell to Angelo; no one wanted to sell. What occurred here is that private companies not engaged in the business of allocating sewerage rights reserved sewerage capacity they had created in reasonable anticipation of their needs. When a board of public utilities authorized a developer to reserve capacity for a reasonable time, we concluded that the board's decision was neither arbitrary nor unreasonable. See Sudler, supra, 219 N.J. Super. at 55-56, 63-64. Thus, we see no basis for concluding that defendants' decision to reserve the credits for planned projects was malicious because it was made by private parties, one of whom happened to be in competition with plaintiffs.

For the foregoing reasons, we conclude that plaintiffs failed to establish tortious refusal to deal.


Although the trial court did not find the elements of a tortious refusal to deal, it went on to find defendants liable on a legal theory not presented by plaintiffs - violation of the "fiduciary duty of someone standing in the shoes of a government." Recognizing that defendants were not operating as a public utility, the court concluded that because of Caldwell's unlawful delegation of authority defendants stood in the shoes of the government. For that reason, they owed plaintiffs a "duty to allocate [their credits] according to the standards that would have been applicable to a government body." Equating defendants' position with that of the municipality, the court concluded that defendants' needs were "irrelevant as a matter of law."

In the trial court's view, defendants violated their duty to plaintiffs by preserving credits that they expected to use in the future because Angelo's "plans and opportunities were further along at the time [Angelo] sought to purchase the rights than were defendants' opportunities and plans." The court further determined that plaintiffs' right to buy the credits was "equal" to the right of any defendant to hold them.

Because plaintiffs did not present a claim based upon defendants' violation of a fiduciary duty imposed upon defendants' acceptance of authority unlawfully delegated by Caldwell, liability should not have been found on that basis. See R. Wilson Plumbing & Heating, Inc. v. Wademan, 246 N.J. Super. 615, 616-19 (App. Div. 1991). That error warrants reversal.

We note that the trial court did not provide legal authority in support of the duty it found and that plaintiffs have not presented any on appeal. Our independent review of decisional law has disclosed no authority to support the conclusion that defendants, regardless of their reasonable perception of their business interests, were obligated to share with others credits they thought they would need.


Our reversal of the trial court's finding on liability makes it unnecessary for us to consider the parties' objections to the trial court's determinations on causation, damages and interest. Plaintiffs ask us to reconsider this court's prior decision concerning plaintiffs' anti-trust claim, but that decision is the law of the case and the evidence presented at trial does not warrant reconsideration based on this untimely request. See Polidori V. Kordys, Puzio & Di Tomasso, AIA, 228 N.J. Super. 387, 394-95 (App. Div. 1988) (discussing the importance of compliance with Rule 2:11-6); Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987) (discussing grounds for reconsideration), certif. denied, 110 N.J. 304 (1988). Finally, defendants' objection to the trial court's conclusion that plaintiffs had standing, an issue which was not raised until the proceedings on third remand from this court, is mooted by our reversal of the judgment on liability and we see no reason to address it.


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