Fearnow v. Chesapeake & Potomac Telephone Co.

HARRELL, Judge. Appellant, Leon C. Fearnow, appeals from a judgment entered by the Circuit Court for Washington County granting the motion for summary judgment of appellee, Chesapeake & Potomac Telephone Company of Maryland (C & P), as to liability under the doctrine of respondeat superior. Appellant also appeals from a judgment entered upon a jury verdict of the Circuit Court for Washington County (Moylan, J. presiding), finding appellee, Donald K. Wood, not liable, under the ¹⁴ Maryland Wiretapping and Electronic Surveillance Act (Maryland Wiretap Act or the Act), Md.Code Ann., Cts. & Jud.Proc. § 10-401 et seq. (1989 Replacement Volume & 1994 Supp.), for the wilful interception of appellant’s telephone communications.

ISSUES I. Did the trial court err in refusing to give the appellant’s instruction no. 21 which was a verdict directing instruction?

II

Did the trial court err in its instructions to the jury regarding the wiretap statute?

III

Did the trial court err in refusing to instruct the jury as follows: A. A person is presumed to know the law (plaintiffs proposed instruction nos. 16 and 17); B. Ownership of the telephone equipment has no bearing on whether or not consent exists under Maryland’s wiretap act for a lawful interception (plaintiffs proposed instruction no. 22); C. There is no legally sufficient evidence that Fearnow’s phone was consensually monitored under § 10-402(c)(2) of Maryland’s wiretap act (plaintiffs proposed instruction no. 15); D. Maryland’s wiretap act required a court order prior to the interception of Fearnow’s phone (plaintiffs proposed instruction no. 11)?

IV

Did the trial court err in quashing certain trial subpoenas and sustaining objections to the use of interrogatory answers by Wood and C & P? V. Did the trial court err (1) in granting summary judgment in favor of the C & P and (2) finding that counsel for both C & P and Wood did not have a conflict of interest in filing said motion on behalf of C & P? ¹⁵ VI. Did the trial court err in granting summary judgment against the plaintiff on the issue of punitive damages by requiring proof of actual malice.

VII

Did the trial court err in granting summary judgment against Fearnow on his claim for damages for reputational injury and resultant emotional distress?

VIII

Did the trial court err in denying the plaintiff additional discovery while permitting additional discovery to be reopened by the defendants?

IX

Did the trial court err in ruling as a matter of law that no conspiracy existed? X. Did the trial court show partiality toward the defendants, Donald Wood and C & P? 1 ¹⁶ As we shall reverse the judgment of the circuit court based on one of the sub-arguments within issue II, we do not reach all of the remaining issues presented by appellant for our review. Pursuant to Md.Rule 8-131(a), 2 however, we -will reach, for the benefit of the trial court, certain of the other issues. FACTS 3 In 1983, appellant was a police officer with the Hagerstown Police Department.

By the fall of 1983, there was considerable suspicion that someone in the Hagerstown Police Department was “leaking” police information concerning ongoing gambling investigations. In an attempt to identify these “leaks,” Clinton E. Mowen, chief of the Hagerstown Police Department, requested that a wiretap be placed on appellant’s telephone extension at police headquarters. Specifically, Chief Mowen ordered Corporal John E. Ryder, Sr. and Lieutenant Nelson S. Dunahugh “to tap Leon Fearnow’s phone.” 4 Notwithstanding Ryder’s plea that this was “illegal as hell,” Chief Mowen commanded the officers to proceed with the wiretap. Ryder attempted to locate appellant’s extension line ¹⁷ on the telephone terminal board of the police headquarters, but lacked the technical expertise to do so.

Soon thereafter, Ryder telephoned Wood 5 at home “sometime between six and nine o’clock in the evening” and requested that he come to the police building. 6 Ryder explained only that there was a problem at police headquarters. Wood was not told what the problem was or why his assistance was requested. 7 Wood stated that he would be there “within the hour.” When Wood arrived at police headquarters, he was met by Ryder and, shortly thereafter, Chief Mowen. He was asked to look at the police headquarters’ telephone terminal board in the basement and identify the binding posts (wire terminations) associated with an internal extension number. 8 Wood did not inquire into the police officers’ authorization for their ¹⁸ actions, but testified that because the terminal board and internal wiring were the property of the Hagerstown Police Department, “it has all the right in the world to go down and make any changes on [Chief Mowen’s] telephone equipment that he would elect to do so.” Wood also testified that he never saw a court order authorizing the proposed interception. Moreover, he testified that “[t]he thought never really crossed my mind of a need for a court order.” When Wood was unable to identify the specified binding posts on the terminal board in the basement of the building, he, Ryder, and Mowen went to a second, redundant terminal board on the third floor of the police building where the binding posts were identified by the extension number written next to them.

Once the particular extension number was located, “Ryder produced a tape recorder from a paper bag that he had been carrying and proceeded to hook the tape recorder to the binding post.” 9 When the tape recorder was attached, Ryder concealed it above the ductwork and turned on the recorder. 10 Almost immediately thereafter, Wood left the police building alone and heard nothing further about the incident until approximately three years later when he was questioned by a state police investigator. On 15 October 1987, appellant filed a two-count Complaint in the Circuit Court for Washington County against C & P, Wood, Mowen, Dunahugh, Ryder, Kauffman, and Baker, alleging invasion of privacy and violation of the Maryland Wiretap Act. On 26 February 1988, the circuit court granted the defendants’ motion to dismiss, with leave to amend within ¹⁹ thirty days. On 24 March 1988, appellant filed a four-count Amended Complaint alleging, inter alia, invasion of privacy (Count I), portrayal in false light (Count II), civil conspiracy (Count III), and violation of the Maryland Wiretap Act (Count IV).

Defendants’ motion to dismiss was granted as to Counts I and II 11 and denied as to Counts III and IV. In October 1989, appellant voluntarily dismissed Count III, civil conspiracy, with prejudice. 12 On 31 October 1989, Wood and C & P moved for summary judgment on the remaining wiretap count, arguing that there was no evidence that Wood acted “wilfully” so as to violate the Maryland Wiretap Act. Therefore, argued C & P, it could not be liable “because the doctrine of respondeat superior alone is incapable of establishing liability against C & P under the [Maryland Wiretap Act].” In the alternative, C & P argued that it “is entitled to summary judgment because Wood could not have been acting -within the scope of his employment with C & P to the extent that he violated the statute.” The court granted appellees’ motion for summary judgment on 28 November 1989. The court concluded that “there is no evidence or reasonable inferences that Donald K. Wood acted wilfully.” Therefore, the court explained,- “[b]ecause the claim against the C & P Telephone Company is predicated upon the doctrine of respondeat superior, the Court finds it unnecessary to address the other arguments presented by ... [C & P].” Final judgment was entered against appellant on 27 February 1990. 13 On 6 March 1990, appellant noted a timely appeal to this Court.

In Fearnow v. Chesapeake & Potomac Tel. Co., 85 Md.App. 788 , 790, September Term, No. 392, an unreported per curiam opinion filed on 4 January 1991, this Court re ²⁰ versed and remanded the circuit court’s grant of appellees’ motion for summary judgment. This Court explained that “the determination of willfulness is a question of intent, and as such, is within the province of a fact-finder and should not be determined on a motion for summary judgment.” The parties then filed petitions for writ of certiorari, which were denied. On remand, the trial court heard argument on the respondeat superior and scope of employment issues and, on 1 September 1992, granted summary judgment to C&P, thereby removing it from this case. 14 On 10 September 1992, appellant filed a motion for summary judgment requesting that the court “issue an Order stating that [Wood] violated [the Maryland Wiretap Act] and permit [appellant] to proceed to trial to prove the type and amount of damages.” That motion was denied on 27 October 1992.

Also on 27 October 1992, the circuit court granted Wood’s partial motion for summary judgment as to the issue of punitive damages. In so ruling, the court found that “proof of malice is required to support the imposition of punitive damages under the [Maryland Wiretap Act].” Therefore, concluded the court, “the evidence before it is insufficient as a matter of law to support a finding that [Wood] acted with malice and ... punitive damages would be inappropriate in this case.” On 3 June 1993, summary judgment was again granted in favor of Wood on the issue of reputational damages and resultant emotional distress. 15 The court explained: While the court agrees that reputational damage may be recovered under the statute as a component of actual damages, such damages are not appropriate under the facts of this case. The statute clearly does not prohibit the disclosure of the existence of a wiretap. The only disclosure prohibited by the statute is a disclosure of the contents of ²¹ the communication.

No such disclosure is present in this case. The court concluded that “any damage caused to [appellant’s] reputation due to this publicity was due to the existence of the underlying suspicions of [appellant] "within the police department.” The case proceeded to trial against Wood on 21 June 1993. After six days of trial, the jury answered the following question in the negative: “Did the Defendant, Donald K. Wood, willfully intercept any telephone communications of Leon C. Fearnow?” Judgment was entered on 26 July 1993; appellant noted a timely appeal to this Court. We shall relate additional facts as necessary in our discussion of appellant’s issues.

DISCUSSION I. As an initial challenge, appellant argues that the circuit court erred in refusing to give appellant’s requested jury instruction no. 21: I have ruled that Donald Wood is responsible for the injuries and damages to Leon Fearnow in this case so you need not concern yourself with that question. You need only decide the amount of damages that should be awarded. In support of this verdict-directing instruction, appellant asserts that, because the circuit court instructed the jury that appellant was not guilty of any crime, section 10—402(c)(2) of the Act 16 did not apply. Therefore, argued appellant, section ²² 10-402(c)(l), 17 making it lawful to intercept a wire or oral communication with a court order, imposed on Wood a legal duty to inquire as to the existence of a court order.

Because Wood conceded that he did not so inquire, his conduct could not fall under section 10-402(c)(l), and is consequently a violation of the Maryland Wiretap Act. To determine the propriety of denying a requested jury instruction, we must examine whether the requested jury instruction is a correct statement of the law, whether the law is applicable in light of the evidence presented to the jury, and whether the requested instruction was fairly covered by the instructions actually given. Sergeant Co. v. Pickett, 285 Md. 186, 193 , 401 A.2d 651 (1979); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 421 , 633 A.2d 485 (1993); Myers v. Estate of Alessi, 80 Md.App. 124, 132 , 560 A.2d 59 , cert. denied, 317 Md. 640 , 566 A.2d 101 (1989). As appellant’s instruction no. 21 fails the first and second parts of this test, we affirm the circuit court’s refusal to give such an instruction. ²³ First, we hold that appellant’s requested jury instruction was an incorrect statement of the law concerning the Maryland Wiretap Act.

Appellant contends that Wood violated section 10-410(a) of the Act, which establishes civil liability, except where specifically provided otherwise, for the wilful interception of any wire, oral, or electronic communication. 18 Section 10-410 also establishes civil liability for a violation of section 10-402 19 and authorizes a private cause of action. Kassap v. Seitz, 315 Md. 155, 159 , 553 A.2d 714 (1989). To establish liability under the Maryland Wiretap Act, appellant must prove that Wood acted wilfully. Earley v. Smoot, 846 F.Supp. 451, 453 (D.Md.1994) (interpreting the Maryland Wiretap Act); Benford v. ABC, 649 F.Supp. 9, 10 (D.Md.1986) (same).

The term “wilfully” means “more than intentional or voluntary. It denotes either an intentional violation or a reckless disregard of a known legal duty.” 20 Id. Indeed, as ²⁴ the federal district court explained in Earley , the violator must know that what he or she is doing is illegal. Earley, 846 F.Supp. at 453 .

Section 10-402(c), on the other hand, sets forth exceptions, under the caption “Lawful acts,” to the conduct proscribed in sections 10-410 and 10-402(a). Merely because there existed evidence that Wood did not inquire into the lawfulness of the wiretap and no court order to wiretap appellant’s telephone extension was obtained, that does not establish, as a matter of law, that Wood violated the Maryland Wiretap Act. 21 Appellant still must prove that Wood wilfully intercepted a wire or oral communication in violation of section 10-410 or section 10-402(a). Whether Wood had a legal duty to inquire into the police officers’ authorization, i.e., court order, to conduct the wiretap is but a factor for the jury to consider in making its determination of wilfulness. Second, we hold that the evidence presented at trial was not sufficient to establish, as a matter of law, that Wood acted wilfully.

Appellant’s instruction no. 21 was a verdict-directing instruction stating, in essence, that Wood, as a ²⁵ matter of law, wilfully intercepted the wire communications of appellant. Appellant points to the following facts, based on Wood’s response to cross-examination questions regarding the C & P company manual, 22 that he contends “clearly show[ ] a reckless disregard of a known legal duty”: no court order was ever obtained to wiretap appellant’s telephone; Wood knew that a court order was necessary to install the wiretap; Wood had a legal duty to inquire as to the officer’s authorization to implement the wiretap; Wood testified that the C & P manual informed him that it was a criminal offense to violate “the secrecy of communications.” Counsel for Wood, however, countered by asking Wood his interpretation of the scope of the C & P company manual. Wood explained that “this document was published for C & P employees to protect the C & P network.” Wood testified that he did not understand the company manual to apply to equipment owned by its customers, i.e., the Hagerstown Police Department, and therefore he believed he was under no legal duty to inquire as to whether the police needed, applied for, or actually obtained a court order. 23 The testimony at trial, ²⁶ however, at the very least, presented conflicting evidence of Wood’s state of mind. Moreover, Wood’s testimony at trial indicated that he believed the law relating to wiretaps was complex, and did not always require a court order. 24 Wood also testified that he relied upon Chief Mowen and the other police officers to have obeyed the law in obtaining the necessary authorization to wiretap their own equipment.

As appellant’s proposed jury instruction no. 21 would have amounted to, in essence, a verdict on the issue of Wood’s liability, the evidence adduced at trial, coupled with the conflicting testimony regarding Wood’s state of mind, do not support the giving of such an instruction. As explained in Rock, a jury instruction is not appropriate if it is not “applicable in light of the evidence before the jury.” Rock, 98 Md.App. at 421 , 633 A.2d 485 (emphasis in original). Indeed, this Court, in an unreported per curiam opinion in this same case, 25 reversed and remanded the trial court’s grant of sum ²⁷ mary judgment in favor of appellees on the issue of wilfulness (i.e., liability) and stated: “[T]he determination of wilfulness is a question of intent, and as such, is within the province of a fact-fínder.” Fearnow v. Chesapeake & Potomac Tel. Co., 85 Md.App. 788, 790, September Term 1990, No. 392, slip op. at 5.

We are in accord with this Court’s prior decision that the determination of wilfulness is a question for the finder of fact in this case. Appellees also contend that appellant’s requested instruction is equivalent to “making a de novo motion in this Court for a ‘directed verdict’ on the issue of Wood’s liability, since he neither moved for judgment nor otherwise properly preserved the issue in the trial court.” We agree with appellees that requested jury instruction no. 21 was, in essence, an attempt to have the trial court grant a motion for judgment without employing the necessary procedural mechanism for making such a motion. Md.Rule 2-519(a) provides: A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all the evidence. The moving party shall state with particularity all reasons why the motion should be granted.

No objection to the motion for judgment shall be necessary. A party does not waive the right to make the motion by introducing evidence during the presentation of an opposing party’s case. To obtain such relief, or to preserve the point for appellate review, a party must: (i) specifically make the motion at the close of the evidence; and (ii) state with particularity the grounds for the motion. These procedural safeguards are necessary to ensure that the opposing party is not “sandbagged.” Annapolis Mall Ltd. Partnership v. Yogurt Tree, Inc., 299 Md. 244, 256 , 473 A.2d 32 (1984); 5A J. Moore, Moore’s Federal Practice ¶ 50.08, at 50-88 (2d ed. 1982).

Appellant, however, ignored the mandate of our Rules and blazed his own brave, new procedural trail, attempting to have ²⁸ judgment granted by way of jury instruction, rather than by the appropriate motion to the trial court. As we have already lauded the circuit court’s decision to refuse appellant’s jury instruction no. 21 based on the three-part test set forth in Sergeant, supra, we also note, for the sake of thoroughness, that the instruction is, in effect, an impermissible attempt at a motion for judgment on the issue of liability.

II

Appellant also contends that the trial court erred in giving certain instructions to the jury. In reviewing the adequacy of a given jury instruction, we must determine whether the charge as a whole contains a fair statement of the law. Casey v. Roman Catholic Archbishop, 217 Md. 595, 612 , 143 A.2d 627 (1958); State ex rel. Taylor v. Barlly, 216 Md. 94, 100 , 140 A.2d 173 (1958); Ager v. Baltimore Transit Co., 213 Md. 414, 425 , 132 A.2d 469 (1957).

A. The first jury instruction objected to by appellant in his brief was: In determining whether the defendant, Don Wood, Donald Wood, is liable, you are first to, you are first to determine whether or not there was a violation of the Maryland Wiretap Statute. Appellant argues that because there was a stipulation that no court order was obtained to wiretap appellant’s telephone extension, the wiretap was per se illegal, and the jury should not have been permitted to decide whether there was a violation of the Maryland Wiretap Act. Appellees argue, however, that “there was ample evidence that Wood did not act wilfully, and there was no evidence of either willfulness or interception.” (emphasis in original). Therefore, assert appellees, only Wood could complain that the issue of violation of the Act was submitted to the jury. ²⁹ As this is, in essence, the same argument advanced by appellant in issue I, we reiterate that the issue of Wood’s liability in this case is properly a question for the jury.

It is clear that to recover under section 10-410 of the Maryland Wiretap Act, appellant must first prove that there was an actual violation of the Act. The absence of a court order, however, is not dispositive of this issue. See discussion supra. Consequently, the trial court’s instruction was the precise vehicle through which the issue of Wood’s liability was presented to the jury. 26 B. & C. The second jury instruction objected to by appellant was: The Maryland legislature enacted this law to prevent the unauthorized interception of conversations where at least one of the parties has a reasonable expectation of privacy.

I might stop here and say that the attorneys will argue to you their differing views on what is meant by this law with respect to reasonable expectation of privacy. In proving a violation of the statute, the defendant [sic] must prove that any conversations that were intercepted were ones in which he had an expectation of privacy. This is a factual determination which must be made by you, the jury. Appellant contends that the trial court erred on several grounds in giving this instruction to the jury.

These include: ³⁰ (i) the definition of “wire communication,” as provided in § 10-401(l)(i) of the Maryland Wiretap Act, does not require proof of a reasonable expectation of privacy; (ii) “[a]ll parties to a telephone conversation have a reasonable expectation of privacy;” (in) appellees “elicited absolutely no evidence to support this instruction;” and, (iv) requiring a finding of reasonable expectation of privacy would place an undue burden on appellant because § 10-402(a)(2) makes it unlawful for any person to disclose to anyone the contents of any wire if such information was obtained in violation of the law; (v) this Court’s prior ruling in Fearnow v. Chesapeake & Potomac Tel. Co., 85 Md.App. 788, 790; September Term 1990, No. 392, held that appellant has, as a matter of law, a reasonable expectation of privacy in the use of his office telephone. Appellees, as a threshold issue, argue that appellant failed to preserve several of these challenges. Rule 2-520 provides that a party must “stat[e] distinctly the matter to which the party objects and the grounds of the objection.” As appellant did not state distinctly the first three of the challenges he now presses on appeal, argue appellees, they are not preserved for our review.

In addition, appellees respond substantively to each of appellant’s numbered arguments respectively: (i) appellant invited this alleged error by basing his claim on appeal exclusively on the interception of “wire communications” as opposed to “wire and oral communications,” so as to argue, albeit incorrectly, that wire communications do not require a reasonable expectation of privacy; (ii) the jury instruction as given was a correct statement of the law; (in) the fact that the tapes of the allegedly intercepted communications would have been available through judicial process had appellant made such an attempt, coupled with the other evidence available to appellant, vitiate any notion of an undue burden on appellant; and, (iv) this Court’s footnote in its prior unreported per curiam opinion was dicta and therefore not binding on the circuit court in this case. We first address appellant’s alleged failure to preserve several of the objections now raised on appeal. Appellant’s exception to the instruction at trial was as follows: ³¹ In addition, we except to the giving of Defendant’s Instruction No. 7. We believe that reasonable privacy is not an issue of fact before this jury.

The Court of Special Appeals, in the Fearnow decision, has already stated that the plaintiff has a reasonable expectation of privacy and we believe that this Court is bound by that determination and this is not an issue of fact for the jury. In addition, we believe that the statute does not require that the plaintiff prove that each conversation intercepted was one in which he had a reasonable expectation of privacy. We don’t believe we have that burden of proof under that statute and that we are entitled to an inference that when the recorder was hooked up on plaintiffs phone, that that constitutes the interception, and we do not have to prove each specific conversation, that there was a reasonable expectation of privacy on each conversation. We believe that the instruction that was given was confusing because it implies that we have to prove each specific conversation.

As we pointed out in chambers, the tapes are under seal. They may have very well been destroyed and the plaintiff has no way of ascertaining the subject matter of each conversation on that tape. Oh, and then we have to get the consent of all the other parties to the conversations on the tape because they have an expectation of privacy. And as also pointed out in chambers, Judge Thacker [sic] has ordered the tapes sealed.

It is clear that appellant objected to this jury instruction based, in part, on the contention that his expectation of privacy in his telephone communications was not an issue for the jury. Indeed, appellant stated specifically “that reasonable privacy is not an issue of fact before this jury.” We believe that this was sufficient, pursuant to Md.Rule 2-520(e), to preserve that issue for our review. As it is upon this basis that we hold the instruction to be reversible error, we need not discuss appellant’s additional claims in this regard. The Maryland Wiretap Act, Md.Code Ann., Cts. & Jud.Proc. § KM01 et seq., defines “wire communication,” in pertinent part, as follows: ³² any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.

Id. § 10-401(l)(i). The Act defines “oral communication,” in pertinent part, as “any conversation or words spoken to or by any person in private conversation.” Conspicuously absent from the definition of “wire communication” are the words “in private conversation.” It is this distinction that renders the giving of the reasonable expectation of privacy instruction error in the instant case. It is clear through both legislative history and case precedent that the federal wiretap statute, 18 U.S.C. § 2510 et seq., served as the guiding light for the Maryland Act. Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481 (1991) (“The Maryland Act was modeled on the federal act and closely tracks its provisions....”); State v. Bailey, 289 Md. 143, 151 , 422 A.2d 1021 (1981) (“The Maryland “Wiretapping and Electronic Surveillance’ law is an offspring of the Omnibus Crime Control and Safe Streets Act of 1968.... ”); Standiford v. Standiford 89 Md.App. 326, 333-34 , 598 A.2d 495 (1991) (“The Act is an offspring of, and closely parallels, Title III of the Omnibus Crime Control and Safe Streets Act of 1968.... ”), cert. denied, 325 Md. 526 , 601 A.2d 1101 (1992); Benford v. ABC, 554 F.Supp. 145, 150 (D.Md.1982) (“It is apparent that the Maryland General Assembly adopted substantially all of the language in Title III of the Omnibus Crime Control and Safe Streets Act ... with minor modifications, in enacting this legislation.”); Richard P. Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U.Balt.L.Rev. 183, 191 (1979) (section 10-401(1) is the same as the federal model).

Therefore, we read the acts in pari materia, so as to obtain the legislative intent of the language. ³³ The federal act defines “wire communication” almost identically to the Maryland act as: any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of such connection in a switching station) furnished or operated by any person engaged in providing or operating such facilities for the transmission of interstate or foreign communications for communications affecting interstate or foreign commerce ... The federal act defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” Notwithstanding the slight difference in wording between the federal and Maryland definitions of “oral communication,” 27 both acts require that a plaintiff show a reasonable expectation of privacy in the intercepted oral communication. See Benford v. ABC, 649 F.Supp. 9, 11 (D.Md.1986) (defining “private conversation,” as used on § 10-401(2) of the Maryland Act, as requiring a case-by-case examination into the person’s reasonable expectation of privacy); PBA Local No. 38 v. Woodbridge Police Dep’t, 832 F.Supp. 808, 819 (D.N.J. 1993) (comparing federal act to New Jersey act; “the ‘expectation of privacy’ language in [§ 2510(2) ] was intended to parallel the language and standard of Katz, making the ‘reasonable expectation of privacy’ highly relevant to claimed interceptions of oral conversations” (citing In re John Doe Trader Number One, 894 F.2d 240, 242 (7th Cir.1990); United States v. Harrelson, 754 F.2d 1153, 1170-71 (5th Cir.), cert. denied, 474 U.S. 908 , 1034, 106 S.Ct. 277 , 599, 88 L.Ed.2d 241 , 578 (1985)); see also Siripongs v. Calderon, 35 F.3d 1308, 1320 (9th Cir. ³⁴ 1994) (“A reasonable expectation that a communication is not subject to interception is required for protection under Title III if the interception is of an oral, as opposed to a wire, communication.”); United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir.1979) (“only those oral communications which are made under circumstances justifying an expectation that they are not subject to interception are protected”); United States v. Hall, 488 F.2d 193, 196 (9th Cir.1973) (“the definition of oral communication includes the expectation of privacy language derived from Katz ”); accord State v. Smith, 149 Wis.2d 89 , 438 N.W.2d 571, 573 (1989) (interpreting Wisconsin act; “[wjhere ... there is an ‘oral communication,’ there must be not only a subjective belief that the communication is private, but that belief in privacy must be one that a reasonable person would have in the circumstances”). A telephone conversation, however, is a wire communication. 28 Forsyth v. Barr, 19 F.3d 1527 , 1534 & n. 14 (5th Cir.1994), appeal pending, No. 93-4829 (1994); Briggs v. American Air Filter Co., 630 F.2d 414, 417 (5th Cir.1980) (same); Axselle, 604 F.2d at 1334 (“We feel it clear that the telephone communication in question here was a wire communication within the meaning of the Act.”); United States v. Harpel, 493 F.2d 346, 349 (10th Cir.1974) (“The subject telephone conversation clearly qualified as a ‘wire communication’ as defined in 18 U.S.C. § 2510 (1).”); Hall, 488 F.2d at 197 (“when part of a communication is carried to or from a landline telephone, the entire conversation is a wire communication”); PBA Local No. 38, 832 F.Supp. at 819 (“Telephone conversations fall under the definition of “wire communication’ in both the federal and state acts.” (footnote omitted)); Walker v. Darby, 706 F.Supp. 1467, 1477-78 (N.D.Ala.1989) (“well settled rule that a telephone conversation is a wire communication”), rev’d on other grounds, 911 F.2d 1573 (11th ³⁵ Cir.1990); Kratz v. Kratz, 477 F.Supp. 463, 473 (E.D.Pa.1979) (“a telephone call ... is a wire communication”); accord People v. Otto, 2 Cal.4th 1088 , 9 Cal.Rptr.2d 596 , 602 & n. 7, 831 P.2d 1178 , 1184 & n. 7 (“it is well settled that a telephone conversation is a ‘wire communication’ within the meaning of Title III”), cert. denied, — U.S. -, 113 S.Ct. 414 , 121 L.Ed.2d 338 (1992); Smith, 438 N.W.2d at 573 (landline telephone is a wire communication).

And wire communications, unlike oral communications, are protected against interception by electronic, mechanical, and other devices regardless of the speaker’s expectation of privacy. 29 Briggs, 630 F.2d at 417 n. 4. Indeed, the privacy of a wire communication appears to be protected as a matter of law. Smith, 438 N.W.2d at 573 . Consequently, a plaintiffs reasonable expectation of privacy under the federal act, as well as the Maryland act, is irrelevant.

Id. (“[t]he expectation of privacy, whether reasonable or unreasonable, is irrelevant”); PBA Local No. 38, 832 F.Supp. at 819 (“wire communications, unlike oral communications, are generally protected regardless of whether the person making or receiving such communications has an expectation of privacy”); Kratz, 477 F.Supp. at 473 (“whether or not [plaintiff] had any justifiable expectation of privacy in the telephone calls made from or received in their own homes is irrelevant under Title III”). There is, therefore, a sharp legal and factual distinction between an intercepted “wire communication” and an intercepted “oral communication” under both the Maryland and the federal acts. The classification in which a particular communication is placed can play a significant role in how it should be evaluated by the fact finder. ³⁶ We hold that appellant’s telephone conversations are “wire communications” as defined by section 10—401(l)(i) of the Maryland Wiretap Act, and are therefore protected against interception regardless of appellant’s expectation of privacy in those communications.

Appellant’s reasonable expectation of privacy being irrelevant to statutory liability for the alleged interception of wire communications, the circuit court’s instruction to the jury admonishing them to assess appellant’s expectation of privacy in his office telephone conversations must be declared error. We are precluded from finding harmless error in this instance as the reasonable expectation of privacy instruction went clearly to the heart of the jury’s determination whether Wood acted wilfully. The trial judge, in instructing the jury on the element of wilfulness, explained: In proving a violation of statute, the defendant [sic] must prove that any conversations that were intercepted were ones in which he had a reasonable expectation of privacy. This is a factual determination which must be made by you, the jury.

If you find that the defendant, Donald Wood, knew that Leon Fearnow and all other parties to a telephone conversation had a reasonable right of privacy in their conversation over a telephone ... that is a factor that you may consider in determining whether the defendant ... acted wilfully. (emphasis added). 30 Therefore, had the jury been properly instructed, i.e., “because plaintiffs telephone communications are ‘wire communications,’ the plaintiffs reasonable expectation of privacy is irrelevant to your determination of whether Wood acted wilfully,” it would have been free to decide whether Wood acted wilfully when he allegedly intercepted appellant’s telephone conversations, regardless of appellant’s reasonable expectation of privacy and Wood’s knowledge of that expectation. ³⁷ Appellees argue, however, that appellant invited this error by pleading interception of both oral and wire communications in his complaint. As appellant did not differentiate between oral and wire communications throughout the trial, contend appellees, “[h]e cannot now assert that his claims were based exclusively on ‘wire communications,’ in order to argue (incorrectly) that an expectation of privacy was unnecessary.” Notwithstanding appellees’ misstatement of the law as to expectation of privacy, we are unpersuaded, in light of the evidence in the record, that appellant “invited” this error by failing to differentiate its claims. As we explained supra, appellant clearly and distinctly objected to the circuit court’s expectation of privacy instruction in accordance with Md.Rule 2-520(e).

As this Court held in Edmonds v. Murphy, 83 Md.App. 133, 178 , 573 A.2d 853 (1990), aff'd, 325 Md. 342 , 601 A.2d 102 (1992) (citations omitted): The purpose of the relevant Maryland Rule is to allow the trial court to correct any inadvertent error or omission in the oral charge.... In this manner, the trial judge is afforded an opportunity to amend or supplement his charge if he deems an amendment necessary. We believe that the trial judge was afforded such an opportunity and thus the purposes of Rule 2-520 were adequately served by the exception taken by appellant. Appellees also argue that the trial court’s instruction was a correct exposition of the law.

Appellees quote this Court’s prior unreported per curiam opinion in this case 31 in support ³⁸ of their contention that reasonable expectation of privacy is “as much a component of protected wire communication as it is a component of protected oral communications.” Moreover,' appellees assert that “[n]ot every telephone conversation is one in which the speaker has a reasonable expectation of privacy.” The federal court decisions cited by appellees as support, however, apply the expectation of privacy standard set forth in Katz v. United States, 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967) to telephone communications not protected by the federal wiretap act. 32 This Court’s prior opinion seems also to misinterpret this distinction. 33 See Fearnow, 85 Md.App. 788 , 790, September Term, No. 392, slip op. at 5 n. 2. Every case that we have discovered interpreting a telephone conversation under the federal wiretap act has held that the Katz reasonable expectation of privacy standard is inapplicable to wire communications. We can find no reason to interpret the Maryland act differently. Therefore, we hold that appellant’s telephone conversations are wire communications under the Maryland Wiretap Act.

Consequently, appellant’s reasonable expectation of privacy in those telephone conversations, and Wood’s knowledge of. that expectation of privacy, should have been irrelevant to the jury’s determination of Wood’s wilfulness. D. The fourth jury instruction objected to by appellant was: ³⁹ In the absence of evidence to the contrary, there is a presumption under Maryland law that public officers properly performed their duties and did what the law required of them. The determination in this case is to [sic] whether there is evidence to the contrary or not will be argued by the attorneys, and is a determination for you, the jury, to make. If you find that there is evidence to the contrary, then I point out to you that there is no presumption.

If, on the other hand, you find that there is no evidence to the contrary, then I instruct you that, in that instance, there is a presumption under Maryland law that public officers properly performed their duties and did what the law required of them. Appellant argues that, because the Maryland Wiretap Act imposes a duty on Wood to inquire into the police officers’ authorization for wiretapping appellant’s telephone, “[a]ny presumption in [the police officers’] favor improperly and prejudicially eliminated any duty or obligation on Wood” to inquire into such authorization. In fact, argues appellant, the Maryland Wiretap Act “voids any presumption that law enforcement officers are presumed to act lawfully.” 34 Appellees argue initially that appellant objected to the giving of this instruction, but did not refer to section 10-402(c)(l)(ii) in his objection and therefore cannot properly assert it before this Court. As to the merits of appellant’s claim, appellees argue that the Maryland Wiretap Act “imposes no ‘duty of inquiry’ ” which precludes this presumption.” (emphasis omitted).

Instead, argue appellees, the Act prohibits wilful violations, “leaving it to the fact finder to determine whether the circumstances warranted inquiry.” We agree that appellant failed to object with specificity to the challenged jury instruction as required by Md.Rule 2-520(e). Appellant’s objection was as follows: ⁴⁰ We also except to the giving of Defendant’s Instruction No. 5 pertaining to the presumption that police officers are properly [sic] their duties. We believe that it’s a confusing instruction because it’s not applicable in this case. And we believe that’s prejudicial, particularly since the Court denied our presumption that a person is presumed to know the law.

We believe if you’re going to give the presumption of police officers or public officials are [sic] properly performed their duties, that we should have been given the presumption instruction that you’re presumed to know the law. As appellant failed to raise to the trial court section 10-402(c)(l)(ii) as a basis for his objection, that issue is not before us. Md.Rule 2-520(e); Montgomery Ward & Co. v. McFarland, 21 Md.App. 501, 516 , 319 A.2d 824 (1974). We shall, however, for the benefit and guidance of the trial court, discuss this issue.

See Md.Rule 8-131 (a). As we explained supra, the Maryland Wiretap Act does not impose a duty of inquiry on Wood to determine the lawfulness of the police department’s wiretap activities. Therefore, an instruction that public officials are presumed to perform properly their duties cannot eliminate such a duty. 35 ⁴¹ It is clear that Maryland recognizes a rebuttable presumption that public officers properly perform their duties. Beane v. McMullen, 265 Md. 585, 602 , 291 A.2d 37 (1972) (“It is presumed that public officials will properly perform their duties.”); Lerch v. Maryland Port Auth., 240 Md. 438, 457 , 214 A.2d 761 (1965) (“There is a strong presumption that public officers properly perform their duties.”).

It is also clear that Mowen and Ryder, as police officers, were public officials. Consequently, we hold that the circuit court’s instruction that a presumption exists that “public officers properly performed their duties and did what the law required of them,” was a correct statement of the law and properly warranted by the evidence presented at trial. Sergeant, 285 Md. at 193 , 401 A.2d 651 . We are similarly unpersuaded by the one-sentence assertion in appellant’s brief that the Maryland Wiretap Act “voids any presumption that law enforcement officers are presumed to act lawfully.” Again misinterpreting the exceptions set out in section l(M02(c), appellant contends that, because section 10-402(e)(l) requires a court order for the lawful interception of a wire or oral communication, there is no presumption that police officers properly perform their duties.

As explained supra, the requirement of a court order is but one way to conduct a lawful interception of a wire or oral communication under the Act. Accordingly, we hold that the Maryland Wiretap Act does not void the presumption, afforded public officials in Maryland, that they perform their duties properly within the law. E. The fifth jury instruction objected to by appellant was: The burden is on the plaintiff to prove by clear and convincing evidence each item or element of damages he claims was caused by the defendant. As this instruction relates to damages, and not liability, we elect not to reach the issue. ⁴² III.

Appellant contends that the circuit court erred in failing to give certain requested jury instructions. As discussed supra, issue I, to determine the propriety of denying a requested jury instruction, we must examine whether the requested jury instruction is a correct statement of the law, whether the law is applicable in light of the evidence presented to the jury, and whether the requested instruction was fairly covered by the instructions actually given. Sergeant Co. v. Pickett, 285 Md. 186, 193 , 401 A.2d 651 (1979); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 421 , 633 A.2d 485 (1993); Myers v. Estate of Alessi, 80 Md.App. 124, 132 , 560 A.2d 59 , cert. denied, 317 Md. 640 , 566 A.2d 101 (1989). Under this rule of law, we shall examine the first two and the last of appellant’s four requested jury instructions, ignoring the third, as it is a sufficiency of the evidence question and may not present itself again at a new trial.

A. Appellant requested a jury instruction that provided: “A person is presumed to know the law.” Appellant argues that because C&P’s business is primarily cable and wire communications, and it has employees specifically assigned to assist the police department, its employees “should be presumed to have the requisite knowledge and expertise in the State and Federal Wiretap Statutes. As such, Wood should be chargeable with knowledge of matters which he has the opportunity of knowing and should know.” We agree with appellees, however, that “[a]n instruction that Wood was presumed to know the law would have conflicted with the Act’s requirement of criminal wilfulness.” Violation of the Maryland Wiretap Act requires wilfulness on behalf of the alleged violator. See Earley, 846 F.Supp. at 453 ; Benford, 649 F.Supp. at 10 . Wilfulness is defined as “either an intentional violation or a reckless disregard of a known legal duty.” Id. “[W]hen the law makes knowledge of some requirement an element of the offense, it is totally incorrect to ⁴³ say that ignorance of such law is no excuse or that everyone is presumed to know such law.” United States v. Golitschek, 808 F.2d 195, 203 (2d Cir.1986); accord United States v. Maniktala, 934 F.2d 25, 29 (2d Cir.1991) (“the ‘combination of an instruction that the charged offenses require some knowledge of the law and an instruction that everyone is presumed to know the law was erroneous’ ” (citing Golitschnek, 808 F.2d at 201 )).

Appellant cites several cases in support of this requested jury instruction. All, however, are distinguishable in that none involved jury instructions or a claim requiring the element of wilfulness. 36 B. Appellant’s next unrequited jury instruction provided: “Ownership of the telephone equipment has no bearing on whether or not consent exists under Maryland’s wiretap act for a lawful interception.” Appellant argues that this instruction was proper because the Maryland Wiretap Act protects the privacy of communications regardless of the ownership of the telephone equipment. Ownership of the telephone equipment in the case sub judice, however, is relevant only to whether Wood acted wilfully in violation of the Maryland Wiretap Act. To this end, appellees introduced evidence at trial, without objection, that the Hagerstown Police Department owned the telephone equipment Wood was asked to assist in wiretapping.

The ⁴⁴ purpose of this evidence was to support the assertion that Wood believed the constricts of the C & P company manual applied only to C & P equipment, and therefore he was not intentionally and recklessly disregarding a “known” legal duty when he allegedly assisted the police officers in wiretapping their own equipment. As appellees did not present evidence of the Hagerstown Police Department’s ownership of the telephone equipment to prove consent, 37 appellant’s requested jury instruction was properly denied as it was inapplicable in light of the evidence presented to the jury. C. Appellant would next focus our attention on his requested jury instruction that provided: “There is no legally sufficient evidence that Fearnow’s phone was consentually [sic] monitored under § 10-402(c)(2) of Maryland’s wiretap act.” As this instruction relates to sufficiency of the evidence and may not present itself at a new trial, we do not reach the issue. D. Appellant also requested a jury instruction that provided: “Maryland’s wiretap act required a court order prior to the interception of Fearnow’s phone.” As explained supra part I, text accompanying notes 19-26, this is an incorrect statement of the law.

Therefore, we affirm the circuit court’s refusal to give the instruction.

IV

Appellant contends that the circuit court erred in quashing certain trial subpoenas and sustaining objections to the use of interrogatory answers by appellees. As this is a discovery matter that may be resolved prior to any new trial, we do not reach the issue. ⁴⁵ Y. Respondeat Superior The circuit court, by Memorandum and Order dated 1 September 1992, granted C&P’s motion for summary judgment on the issue of respondeat superior. In that opinion, the court found that Wood “was not acting within the scope of his employment with C & P Telephone when he assisted the Hagerstown Police Department at police headquarters in implementing the wire-tap in question.” The court explained that because Wood’s alleged actions, if true, constituted a serious criminal violation, they “were not reasonably foreseeable or expectable in view of his duties.” (citing Restatement (Second) of Agency § 231 cmt. a (1958) (“serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do”)). Appellant argues first that the circuit court erred in granting C & P’s motion for summary judgment on procedural grounds.

Appellant contends that his Amended Complaint alleged that Wood was acting within the scope of his employment, 38 and that appellees did not specifically deny that allegation in their answer. Therefore, asserts appellant, pursuant to Md.Rule 2-323(e), 39 that allegation is deemed admitted. While it is true that appellees did not specifically deny appellant’s scope of employment allegation, Md.Rule 2-323(e) provides that “[ajverments in a pleading to which a responsive ⁴⁶ pleading is required ... are admitted unless denied in the responsive pleading or covered by a general denial.” As appellees’ motion to dismiss was granted as to Count I (invasion of privacy) and Count II (portrayal in a false light) of the Amended Complaint, appellant’s only remaining claims at the time appellees answered the Amended Complaint were civil conspiracy and violation of the Maryland Wiretap Act. Therefore, because those claims were tort actions for money damages, appellees properly answered with a general denial.

Maryland Rule 2-323(d) provides that “[w]hen the action in any count is for ... tort and the claim for relief is for money only, a party may answer that count by a general denial of liability.” Therefore, appellees’ general denial was sufficient to refute “the whole substance” of appellant’s claim, Maryland Trust Co. v. Poffenberger, 156 Md. 200, 204 , 144 A. 249 (1928), and allowed appellees to “offer any evidence tending to show that [appellant] has no right to recover.” Herrick v. Swomley, 56 Md. 439, 456 (1881). Apparently unaware of the existence of Md.Rule 2-323(g), 40 appellant also suggests that scope of employment is an affirmative defense not raised, and thereby waived, by appellees. Maryland Rule 2-323(g) expressly itemizes affirmative defenses that must be specifically alleged, and scope of employment is not included among them. The two cases cited by appellant both involved affirmative defenses specifically listed in Rule 2-323(g).

See Gooch v. Maryland Mechanical Sys., Inc., 81 Md.App. 376 , 567 A.2d 954 , cert. denied, 319 Md. 484 , 573 A.2d 807 (1990) (qualified privilege); Ocean Plaza Joint Venture v. Crouse Constr. Co., 62 Md.App. 435 , 490 A.2d 252 , cert. granted, 304 Md. 163 , 497 A.2d 1163 , dismissed by ⁴⁷ counsel (1985) (release and waiver). In contrast, scope of employment is recognized as a fundamental element of a respondeat superior claim that must be affirmatively plead and proved by the plaintiff. Appellant next argues that C & P acted “deceptively” when it raised the issue of scope of employment in a motion for summary judgment, after the close of discovery.

Appellant contends that “C & P had a duty under the Maryland Rules to assert [scope of employment] in its answer to the complaint and also to raise the issue immediately after Wood testified in his deposition that the acts were within the scope of his duties.” As we explained supra, appellees were not required to allege specifically scope of employment (or lack thereof) in their Answer. Moreover, we find no reason to require C & P to raise this issue before the close of discovery. There is no evidence in the record that appellant was “deceived” by C & P’s motion for summary judgment on the issue of scope of employment. Indeed, we are unable to empathize with appellant’s charge of “deception” when it is obvious from the record that appellant took deposition discovery on the issue of scope of employment.

Wood’s deposition states: [COUNSEL FOR APPELLANT]: You were an employee of the C & P Telephone Company at the time, weren’t you? [WOOD]: I was an employee of the C & P Telephone Company, yes, sir, responding to a request of the Hagerstown Police Department. [COUNSEL FOR APPELLANT]: Okay, and you were responding as a C & P Telephone Company employee, right? [WOOD]: Yes, I was. [COUNSEL FOR APPELLANT]: You considered this to be part of your job? ⁴⁸ [WOOD]: Yes, I did. 41 We find appellant’s challenge on the merits to be equally unpersuasive. Appellant contends (i) that, because Wood testified that he considered the technical assistance he rendered to the police department to be part of his job, summary judgment on the issue of scope of employment was inappropriate and (ii) that the circuit court improperly ruled that criminal acts are outside the scope of employment. The standard of appellate review of a trial court’s grant of a motion for summary judgment is whether the trial court was “legally correct.” Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990). When making a determination on summary judgment, a trial court makes no findings of fact.

King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). Rather, the court decides whether a genuine issue of material fact exists to prevent the entry of summary judgment. Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1993); see also Bond v. NIBCO, Inc., 96 Md.App. 127, 135 , 623 A.2d 731 (1993); Md.Rule 2-501(e). Under this standard, therefore, we review the trial court’s ruling as a matter of law.

Beatty, 330 Md. at 737 , 625 A.2d 1005 . Our eases recognize that a grant of summary judgment is appropriate only where a two-fold test is met. Gross v. Sussex, Inc., 332 Md. 247, 255 , 630 A.2d 1156 (1993); Castiglione v. Johns Hopkins Hosp., 69 Md.App. 325, 332 , 517 A.2d 786 (1986). The movant for summary judgment must (i) clearly demonstrate the absence of any genuine issue of material fact, and (ii) demonstrate that it is entitled to judgment as a matter of law.

Castiglione, 69 Md.App. at 332 , 517 A2d 786 . To satisfy the first part of this test, the moving party must present the material facts necessary to obtain judgment and demonstrate that there is no dispute as to any ⁴⁹ of those facts. Bond, 96 Md.App. at 136 , 623 A.2d 721 . A material fact is one that will “somehow affect the outcome of the case.” King, 303 Md. at 111 , 492 A.2d 608 .

It is the burden of the movant to “identify the portions of the record that ‘demonstrate the absence of a genuine issue of material fact.’ ” Bond, 96 Md.App. at 136 , 623 A.2d 721 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 , 106 S.Ct. 2548, 2553 , 91 L.Ed.2d 265 (1986)). Once the movant makes this showing, the burden shifts to the non-moving party to identify “with particularity the material facts that are disputed.” Md.Rule 2-501(b). Neither general allegations of facts in dispute nor a mere scintilla of evidence will suffice to support the non-movant’s position, Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 7-8 , 327 A.2d 502 (1974); Seaboard Surety Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 243-45 , 603 A.2d 1357 (1992); there must be evidence upon which the jury could reasonably find for the non-moving party. Beatty, 330 Md. at 738 , 625 A.2d 1005 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 , 106 S.Ct. 2505, 2510 , 91 L.Ed.2d 202 (1986) (“mere existence of some alleged factual dispute between the parties ■will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact”) (emphasis in original)).

In other words, the opposing party “ ‘must do more than simply show there is some metaphysical doubt as to the material facts.’ ” Id. (quoting Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 , 106 S.Ct. 1348, 1356 , 89 L.Ed.2d 538 (1986)).

In ruling on a motion for summary judgment, the court must consider the motion and response submitted by the parties in a light most favorable to the non-moving party. Id. at 737, 625 A.2d 1005 . Thus, summary judgment is inappropriate where the evidence is susceptible to more than one inference. Coffey v. Derby Steel Company, Inc., 291 Md. 241, 246 , 434 A.2d 564 (1981).

Furthermore, the non-moving party “ ‘is to be given the benefit of all reasonable doubts in deter ⁵⁰ mining whether a genuine issue exists.’ ” Beatty, 330 Md. at 739 , 625 A.2d 1005 (quoting Charles Alan Wright, The Law of the Federal Courts § 99, at 666-67 (1983)). With these principles in mind, we turn to the facts of the case sub judice to consider the trial court’s grant of summary judgment. The circuit court explained that “Wood’s alleged actions in this case were arguably violative of the applicable wiretap statute, a serious crime.” Therefore, “[u]nder acceptable agency law, ‘serious crimes are not only unexpectable but in general are in nature different from what servants in a lawful occupation are expected to do.’ ” 42 Consequently, assuming Wood’s intent, in part, to serve C & P’s interests, “the evidence before [the] court [was] not legally sufficient to form the basis for a jury finding that Wood’s actions were within the scope of his employment with C & P Telephone.” We agree with the circuit court that Wood’s actions, if violative of the Maryland Wiretap Act, were not within the scope of his employment with C & P. 43 As explained in Sheets v. Chepko, 83 Md.App. 44, 46-47 , 573 A.2d 413 , cert. denied, 320 Md. 800 , 580 A.2d 219 (1990): The doctrine of respondeat superior allows an employer to be held “vicariously liable for the tortious conduct of an employee when the employee is acting within the scope of the employment relationship.” Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 627 , 506 A.2d 224 (1989) (citation omitted). “[T]he test for determining if an employee is acting within the scope of employment is ‘whether the servant was advancing his master’s interests in doing what he did at the time he did it.’” Henderson v. AT&T Information Systems, 78 Md.App. 126, 132 , 552 A.2d 935 ⁵¹ (1989), citing Rusnack v. Giant Food, Inc., 26 Md.App. 250, 261-65 , 337 A.2d