Piscatelli v. Smith

KEHOE, J. On December 5, 2007, Nicolas A. Piscatelli, appellant, filed a complaint in the Circuit Court for Baltimore City against appellees, Van Smith, a reporter for City Paper, and CEGW, Inc., the owner of City Paper. The complaint alleged one count of defamation and one count of invasion of privacy/false ³¹ light. Appellees filed a motion for summary judgment which was granted on February 17, 2009. Piscatelli appeals the grant of that motion and presents the following question for review, which we have reworded: 1 Did the circuit court err in granting summary judgment on the basis that there no were material facts in dispute?

We answer the question in the negative and affirm the decision of the circuit court. Factual and Procedural Background On or about April 11, 2003, Jason Convertino, a manager of Redwood Trust, a Baltimore nightclub, and a friend, Sean Wisniewski, were murdered at Convertino’s home in the Fells Point neighborhood of Baltimore. Piscatelli was a co-owner of the nightclub. After a police investigation, Anthony Jerome Miller, a former security guard at Redwood Trust, was charged with both murders.

While the case against him was pending in the Circuit Court for Baltimore City, on October 27, 2006, the State filed a supplemental discovery disclosure statement pursuant to Maryland Rule 4-263, which stated in pertinent part: 1. Pam Morgan [Convertino’s mother] has stated that an unknown man approached her at a benefit in Binghamton, New York held for her son’s child shortly after his murder. The man advised her that Nick Piscatelli was behind her son’s murder, he covered his tracks & hired someone to Ml him. 2. Ms. Morgan advised that Van Smith, reporter for City Paper, told her someone told him that he had heard Nick threaten to kill Jason. ³² Piscatelli was a witness at Miller’s trial and was examined by defense counsel as to his own possible motives for murdering Convertino, namely, that Piscatelli suspected Convertino of stealing money from the club and that Convertino was planning to leave the Redwood Trust to work for a competitor.

On March 15, 2007, Miller was convicted of both murders and sentenced to two consecutive thirty year prison terms. Smith wrote a series of articles in City Paper regarding the murders, the police investigation and Miller’s trial. Piscatelli alleges that two of the articles, one published on December 6, 2006 and one on June 20, 2007, republished false and defamatory accusations that Piscatelli had been involved in the murders. The December 6, 2006 article, headlined “Late Discovery, A New Twist in the Redwood Trust Double-Murder Case” (hereinafter “the December article”), quoted Smith’s interview with Piscatelli, in which he denied any involvement in the murders.

It also included the following relating to Smith’s interview of Ms. Morgan: On Oct. 27, [Assistant State’s Attorney Sharon][ 2 ] Holback disclosed in a memorandum to the defense that “Pam Morgan [Convertino’s mother] has stated that an unknown man approached her at a benefit in Binghamton, New York, held for her son’s child shortly after his murder. The man advised her that Nick Piscatelli was behind her son’s murder, he covered his tracks and hired someone to kill him.” The memo does not indicate when Morgan shared this information with investigators, but she told City Paper during a Nov. 30 phone interview that the event was held in May 2003, just weeks after the murders. “At the benefit, this guy comes up to me and he says he knows who is behind my son’s murder” Morgan recalls. “I didn’t know Nick [Piscatelli] at that point.” Since then, ³³ though, Morgan says she has kept in regular, friendly phone contact with Piscatelli. “Oh, boy! She said that?” Piscatelli says when informed of Morgan’s statement about the man’s visit to the Bingham-ton gathering. “That’s unfortunate. I’ve spoken to her several times, and she’s never mentioned anything like that to me.

That’s certainly sad to hear. There has been no animosity between us.” Over the phone from her home outside of Binghamton, Morgan describes the man who dropped Piscatelli’s name at the benefit as white, in his 80s [sic], several inches shy of 6 feet, with “lightish, hair” of “medium build,” and “wearing a long coat, like a trenchcoat.” He came in, talked, and left,” she continues. “I was like, ‘Whoa!’ And that’s when I first started questioning the club, and had these theories [that Piscatelli might be involved]. And I also thought, did [the unknown man] do it purposefully, to throw it off someone else by naming Nick? Because there is no evidence against Nick.” Still, she says she’s fearful of Piscatelli, and now that her suspicions have been made public in Miller’s case file she says she will stop calling him. “That was my last call to him, probably in September,” Morgan recalls, when she says she discussed with Piscatelli items still in his possession that belonged to her son.

(The memo also discloses that Morgan told investigators that this reporter shared with her information about Piscatelli obtained through unnamed sources). After Miller was convicted of Convertino and Wisniewski’s murders, Smith wrote another article on June 20, 2007, entitled “The Lonely Killer, Anthony Jerome Miller got Sixty (60) Years for a Double Murder, But Questions Still Remain Over Whether or Not He Acted Alone” (hereinafter the “June article”). The June article read, in pertinent part: For a long time, Pam Morgan suspected that Nick Pisca-telli had something to do with her son’s death. Her radar went up early on, when she met with detective Blane ³⁴ Vucci—the first lead investigator on the case—on her first visit to Baltimore, right after the murders in 2003.

Morgan had thought of Piscatelli as nothing more than her son’s employer prior to the murders. But she recalls that when she told Vucci that she thought that the murders must have something to do with Redwood Trust, “because if Jay knew anybody, it would have been through the business,” Vucci’s heated reaction surprised her. “He informed me that Nick did everything for my son, yelling at me,” Morgan says. “He told me there was no evidence, that the case would never be solved, and made it seem like somehow Jay did something wrong. And I left feeling hopeless.” (Attempts to reach Vucci for comment were unsuccessful.) Morgan went back to upstate New York, and began to investigate the case on her own. She went through her son’s records that she had, calling any contacts she could find, and tried to share any information she developed with the Baltimore Police Department.

One of the things she shared with the police had to do with Piscatelli. About a month after the killings, in May 2003, a benefit was held near Binghamton to raise money for Convertino’s young daughter. About 500 people showed up, and while it was going on, Morgan says she was approached by a man she’d never seen before and hasn’t seen since. “He said that Nick Piscatelli was behind my son’s murder,” Morgan recalls, “that [Piscatelli had] hired someone to do it, and that he’d covered his tracks.” Since then, Morgan had kept Piscatelli close. She says she maintained a phone relationship with him, never letting on that she suspected his involvement. * * * Morgan was not present when Piscatelli testified at Miller’s trial—it was the first and only day of the trial she missed.

Now that Miller’s been convicted, she says she feels less certain about her suspicions than ever. ³⁵ “If I knew Nick actually did it, if I actually had the proof’ that he was somehow involved in Convertino’s death, Morgan says, “I don’t know what I would have done differently. As long as I still had a doubt and could speak to this man, I did so. So many other things are surfacing, and sometimes we are led to believe one thing when it is the opposite. Now, I have doubts that Nick is responsible.

Before, I could go either way on this whole thing. But right now, it’s like I don’t know anymore. Don’t forget, she continues, “[the police] told me they felt two people were involved. And of course, I’m thinking, Well somebody came [to the benefit] and told me that.

Was he the second person? Now, I don’t know.” Or it might have been Miller, acting alone, killing two people simply to get a credit card and a laptop in order to pay for his honeymoon. If so, barring a successful appeal, Miller will be paying for that honeymoon for a long time to come. (Emphasis in original.) Piscatelli filed a complaint against appellees, alleging that the December Article and the June Article were defamatory, invaded his privacy and cast him in a false light by suggesting that he was involved in the two murders.

Appellees filed a motion for summary judgment, arguing that the articles were not defamatory, that they did not misstate facts and that the articles were wholly privileged. Piscatelli filed an opposition to the motion for summary judgment. The arguments advanced by the parties in support of, and in opposition to, the motion were essentially the same as those presented to this Court. A hearing on the motion and Piscatelli’s opposition thereto was held on January 26, 2009.

On February 17, 2009, the circuit court issued an order granting appellees’ motion for summary judgment on all counts of the complaint. Piscatelli filed a timely appeal from that judgment. Additional facts will be discussed as necessary in this opinion. ³⁶ Analysis (1) Appellate courts review the grant of a motion for summary judgment de novo. Chesek v. Jones, 406 Md. 446, 458 , 959 A.2d 795 (2008); Dashiell v. Meeks, 396 Md. 149, 163 , 913 A.2d 10 (2006).

When there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law, the entry of summary judgment is appropriate. Md. Rule 2—501(f); Pines Point Marina v. Rehak, 406 Md. 613, 618 , 961 A.2d 574 (2008). Our first step is to determine whether there is a genuine dispute as to a material fact. Harford County v. Saks Fifth Ave.

Distribution Co., 399 Md. 73, 82 , 923 A.2d 1 (2007); United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 66 , 899 A.2d 819 (2006). An issue of fact is material if its resolution will affect the outcome of the case in some way.

Riley, 393 Md. at 67 , 899 A.2d 819 ; Robb v. Wancowicz, 119 Md.App. 531, 536 , 705 A.2d 125 (1998). If we find that there is a genuine dispute of a material fact, then we must reverse the circuit court’s grant of summary judgment. If we find that there is no genuine dispute of a material fact, we must then determine whether the moving party was entitled to judgment as a matter of law. Myers v. Kayhoe, 391 Md. 188, 203 , 892 A.2d 520 (2006).

Finally, in a defamation case such as this, we weigh the parties’ contentions after making our own independent evaluation of the record in order to assure that a potential judgment against appellees would not infringe upon their right of free expression protected by the First Amendment of the United States Constitution and Article Forty of the Maryland Declaration of Rights. Chesapeake Publishing v. Williams, 339 Md. 285, 299 , 661 A.2d 1169 (1995); see Peroutka v. Streng, 116 Md.App. 301, 308 , 695 A.2d 1287 (1997) (Article Forty is to be treated in pari materia with the First Amendment.) In the instant case, the circuit court’s order granting summary judgment stated “that there is no genuine dispute of ³⁷ material fact and that [appellees] are entitled to judgment as a matter of law,” without further providing a basis for its reasoning. “In the absence of [a discussion of the trial court’s reasoning as to why summary judgment was proper], we must assume that the circuit court carefully considered all of the asserted grounds and determined that all or at least enough of them as to merit the grant of summary judgment were meritorious.” Ross v. Am. Iron Works, 153 Md.App. 1, 10 , 834 A.2d 962 (2003). Under such circumstances, we can affirm the court’s judgment if the record indicates that the circuit court did not err.

Smigelski v. Potomac Insurance Co., 403 Md. 55, 61 , 939 A.2d 189 (2008); Phillips v. Allstate Indem. Co., 156 Md.App. 729, 740 , 848 A.2d 681 (2004). In order to place the parties’ contentions in context, we will briefly review the most pertinent parts of Maryland’s law of defamation. We begin with the elements of the cause of action.

As Judge Andre Davis explained, in Maryland: [I]n order to make out a prima facie case of defamation the plaintiff must allege that (1) the defendant made a defamatory communication, i.e., that he communicated a statement tending to expose the plaintiff to public scorn, hatred, contempt, or ridicule to a third person who reasonably recognized the statement to be defamatory; (2) that the statement was false; (3) that the defendant was at fault in communicating the statement; and (4) that the plaintiff suffered harm. Agora, Inc. v. Axxess, Inc., 90 F.Supp.2d 697, 701 (D.Md.2000) (citing Peroutka, 116 Md.App. at 311 , 695 A.2d 1287 and Shapiro v. Massengill, 105 Md.App. 743, 772 , 661 A.2d 202 , (1995)). In the context of defamation, a statement is false only when it is “ ‘not substantially correct’ ” Batson v. Shiflett, 325 Md. 684, 726 , 602 A.2d 1191 (1992). Moreover, a statement, “even if expressed in terms of an opinion, can be defamatory under certain circumstances regardless of whether the statement concerns a public figure or private person.” Agora, 90 F.Supp.2d at 701 (quoting Peroutka, 116 Md.App. at 321 , 695 A.2d 1287 ).

The determi ³⁸ nation whether a statement is defamatory is one of law and is to be made by the court. Chesapeake Publishing v. Williams, 339 Md. 285, 295 , 661 A.2d 1169 (1995). Piscatelli also asserts a claim for invasion of privacy/false light. However, such a claim “may not stand unless the claim also meets the standards of defamation.” Crowley v. Fox Broadcasting Co., 851 F.Supp. 700 , 704 (D.Md.1994) (applying Maryland law).

There are three defenses that, if applicable, bar recovery. The first is the qualified privilege to report upon judicial proceedings. Chesapeake Publishing, 339 Md. at 296 , 661 A.2d 1169 (“In Maryland, there exists a qualified privilege to report on legal proceedings, even if the story contains defamatory material, as long as the account is fair and substantially accurate.”) This privilege is qualified and can be overcome upon a showing of actual malice. Id.

There are two not necessarily inconsistent approaches to the meaning of “malice” in this context. The first is drawn from the Supreme Court’s landmark opinion in New York Times v. Sullivan, 376 U.S. 254, 279-80 , 84 S.Ct. 710 , 11 L.Ed.2d 686 (1964). Under this analysis, the privilege is not applicable if the reporter knew that the republished statements were false or acted with reckless disregard as to their truth or falsity. Rosenberg v. Helinski, 328 Md. 664, 677-78 , 616 A.2d 866 (1992); Marchesi v. Franchino, 283 Md. 131, 134-35 , 387 A.2d 1129 (1978).

The second approach, based upon the Restatement (Second) of Torts § 611, Comment a (1977), focuses upon the fairness and accuracy of the report. Under this approach, the privilege is applicable as long as the report is “ ‘accurate and complete or a fair abridgement of the occurrence reported.’ ” Rosenberg, 328 Md. at 678 , 616 A.2d 866 (quoting Restatement (Second) of Torts § 611). Maryland favors the latter approach. See, e.g., Chesapeake Publishing, 339 Md. at 296-97 , 302 n. 5, 661 A.2d 1169 ; Rosenberg, 328 Md. at 678 , 616 A.2d 866 .

The second defense is the fair comment privilege: It is recognized that a newspaper like any member of the community may, without liability, honestly express a fair and reasonable opinion or comment on matters of legitimate ³⁹ public interest. The reason given is that such discussion is in the furtherance of an interest of social importance, and therefore it is held entitled to protection even at the expense of uncompensated harm to the plaintiffs reputation. The distinction between “fact” and “opinion,” although theoretically and logically hard to draw, is usually reasonably determinable as a practical matter: Would an ordinary person, reading the matter complained of, be likely to understand it as an expression of the writer’s opinion or as a declaration of an existing fact? An opinion may be so stated as to raise directly the inference of a factual basis, and the defense of fair comment usually has been held not to cover an opinion so stated.

A.S. Abell Co. v. Kirby, 227 Md. 267, 272, 274 , 176 A.2d 340 (1961) (citations omitted). The third defense at least arguably in play in the case is that a person is entitled to express an opinion without liability if “the facts from which a defendant forms his or her opinion are given or are readily available and those facts cannot be proved false....” Peroutka, 116 Md.App. at 320 , 695 A.2d 1287 . Elaborating on this principle, Judge Cathell identified four possible variations: “(1) If the defendant bases his expression of a derogatory opinion of the plaintiff on his own statement of false and defamatory facts, he is subject to liability for the factual