COURT HOUSE – A Superior Court judge has dismissed a lawsuit filed by former Upper Township business administrator Gary DeMarzo, who claimed he was defamed by Committeemen Sam Palombo and Zachary Palombo.
Judge James Pickering’s order, filed on May 16, was that the case be dismissed with prejudice, meaning it cannot be brought back to court.
On April 15, Pickering dismissed with prejudice the lawsuit’s claims against a third defendant, Barbara Murphy-Leary, a private citizen. In doing so, Pickering ordered DeMarzo to pay more than $6,400 for court costs and Murphy-Leary’s attorney fees.
DeMarzo filed the lawsuit on Dec. 30, 2024, claiming that the Palombos, who are cousins, defamed him in campaign literature. Murphy-Leary had set up a Facebook page titled “Politics and Promises in Upper Township and Cape May County” in which she allegedly criticized DeMarzo.
Norman Briggs, attorney for the Palombos, filed for a show-cause order to have the complaint dismissed. On May 16, Pickering determined that the entire lawsuit was without merit.
DeMarzo was hired in April 2022 under the administration of then-Mayor Jay Newman and Deputy Mayor Kimberly Hayes. Both the mayor and deputy mayor were up for reelection in November 2024, and were defeated by the Palombos.
DeMarzo’s lawsuit stemmed from Palombo campaign literature and private statements made to an unnamed township employee.
A Palombo campaign flyer said that Newman, Hayes and Committeeman Mark Pancoast would not speak up as their “hand-picked administrator from Wildwood yells at local residents.”
According to a court document, after the June 10, 2024, primary election, the Upper Township Republican municipal chairman, Larry Trulli, said DeMarzo would be terminated. About the same time, the document said, a township employee asked Zachary Palombo, “Did you write this about Mr. DeMarzo?” referring to the campaign flyer, and asked why. Palombo responded they did and were told to do so.
On Sept. 12, 2024, DeMarzo was granted a permanent Civil Service position as the township personnel officer, and on Nov. 5, 2024, the Palombos were elected to the Township Committee. The Palombos attended the second Township Committee meeting in November, when DeMarzo asked them about the campaign flyers.
Zachary Palombo said “No comment,” and Samuel Palombo did not respond. In DeMarzo’s lawsuit, filed before the Palombos were sworn in, he said those answers were defamatory.
In the request for the show-cause order, Briggs cited the Palombos’ right to free speech guaranteed under the First Amendment. Pickering found that the speech in question was made during a political campaign concerning issues of public concern.
The judge wrote that DeMarzo was, as the highest non-elected official in the township, a public figure, and what he did as such was a matter of pubic concern. He said in his order that the statements on the Palombos’ campaign literature “was clearly political speech.”
“Further, political expression is protected under the First Amendment,” Pickering wrote, adding that the state Constitution awards the same liberties of expression.
The judge found that the statement about the administrator yelling at citizens clearly referred to DeMarzo, but the statement was “simply not defamatory.” He said whether one yelled or simply raised one’s voice is a matter of opinion, and opinions are not considered defamation because they cannot be verified.
“Far more inflammatory language has been held to be non-actionable expression of opinion,” Pickering wrote.
He found that a “No Comment” or non-answer were not defamatory.
Pickering said the speech on the flyers was political, adding, “Sometimes campaigns are rhetorically tough.”
“The statements that (DeMarzo) alleges are defamatory are actually quite tame by campaign standards,” he wrote.
Regarding a final element of alleged defamation, the judge wrote that DeMarzo had not alleged actual malice by the defendants, one of the conditions to prove defamation. The standard for proving actual malice is high – the plaintiff would have to prove the speaker or writer had knowledge a statement was false and proceeded with reckless disregard of the truth.
“The high standard of actual malice cannot be met when a person’s name is not even stated,” the judge’s order says.
The judge specifically addressed the issue of Zachary Palombo being questioned by the unnamed township employee as to what was written on a campaign flyer and why. Pickering said Palombo never said that what was alleged was not true or that he believed it was not true.
In addition, he again addressed the matter of the “No comment,” saying, “Refusing to engage with someone who has accused you of defamation is not evidence of actual malice.” He said there is no legal obligation to defend oneself against an allegation.
Zachary and Samuel Palombo issued a joint statement on the decision to dismiss the lawsuit.
“We believed this lawsuit was frivolous from the start, and the judge agreed with us. We are happy to put this episode behind us and move on to doing good things for the people of Upper Township,” they said.
In granting the show-cause order and dismissing the complaint with prejudice, the judge awarded the Palombos the recovery of attorney fees, costs and litigation expenses. Once the attorney submits a certification of services, DeMarzo has 20 days to file an objection to the award.
DeMarzo said he had some thoughts on the process, and the subject is not dead despite the judge’s ruling.
“Issues will be addressed in other legal actions,” he said.
Contact the reporter, Christopher South, at csouth@cmcherald.com or call 609-886-8600, ext. 128.
