Berkey v. Delia, 15

CourtCourt of Appeals of Maryland
Citation287 Md. 302,413 A.2d 170
Docket NumberNo. 15,15
PartiesBarry R. BERKEY v. Gregory E. DELIA.
Decision Date26 March 1980

William A. Ehrmantraut, Rockville, (Donahue, Ehrmantraut & Montedonico, Rockville, on the brief), Henry Kenneth Armstrong, Rockville, for appellant.

Clifford R. Bridgford, Frederick, for appellee.

Argued Sept. 13, 1979 before MURPHY, C. J., and SMITH, ELDRIDGE, ORTH and COLE, JJ.

Reargued Feb. 6, 1980 before MURPHY, C. J., SMITH, DIGGES, ELDRIDGE, COLE and RODOWSKY, JJ., and EDWARD O. WEANT, Jr., Associate Judge of the Court of Special Appeals, specially assigned.

SMITH, Judge.

Respondent, Gregory E. Delia, a Prince George's County police officer, sued petitioner, Barry R. Berkey, in libel and slander. The bases of the suit were a letter Berkey had directed to Delia's superior and statements Berkey had made in the resultant investigation. The Circuit Court for Prince George's County read New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), as requiring it to grant Berkey's motion for summary judgment. Accordingly, it entered judgment for Berkey. The Court of Special Appeals reversed in Delia v. Berkey, 41 Md.App. 47, 395 A.2d 1189 (1978), remanding the case to the trial court for further proceedings. We granted Berkey's petition for the writ of certiorari in order that we might consider the issues here presented. We shall affirm.


Before relating the facts we shall set forth the law relative to summary judgment in order that the facts may be read in the context of those requirements.

Under Maryland Rule 610 d 1 summary judgment is to be rendered forthwith "if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." The function of a summary judgment proceeding is not to try the case or to attempt to resolve factual issues, but to determine whether there is a dispute as to a material fact sufficient to provide an issue to be tried. Peck v. Baltimore County, 286 Md. 368, 410 A.2d 7 (1979); Honaker v. W. C. & A. N. Miller Dev. Co., 285 Md. 216, 231, 401 A.2d 1013 (1979); Dietz v. Moore, 277 Md. 1, 4-5, 351 A.2d 428 (1976), and cases there cited. All inferences must be resolved against the moving party when a determination is made as to whether a factual dispute exists. This is true even if the underlying facts are undisputed. Peck, 286 Md. at 381, 410 A.2d 7; Honaker, 285 Md. at 231, 401 A.2d 1013; Merchants Mortgage Co. v. Lubow, 275 Md. 208, 217, 339 A.2d 664 (1975); James v. Tyler, 269 Md. 48, 53-54, 304 A.2d 256 (1973); Roland v. Lloyd E. Mitchell, Inc., 221 Md. 11, 14, 155 A.2d 691 (1959); and White v. Friel, 210 Md. 274, 285, 123 A.2d 303 (1956). We have observed that the function of the trial judge on such a motion is much the same as that which he performs at the close of all the evidence in a jury trial when a motion for a directed verdict or a request for peremptory instructions makes it necessary that he determine whether an issue requires resolution by a jury or may be decided by the court as a matter of law. Honaker, 285 Md. at 232, 401 A.2d 1013, citing Porter v. General Boiler Casing Co., 284 Md. 402, 413, 396 A.2d 1090 (1979). In Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256, 258 (1970), cited in Peck, Honaker and Porter, we said, "(E)ven where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact."

Although summary judgment was approved in that particular case, in Driver v. Potomac Electric, 247 Md. 75, 79, 230 A.2d 321, 324 (1967), Judge Horney observed for the Court, "Usually it is neither advisable nor practicable to enter a summary judgment in a tort action . . . ." Professor C. Christopher Brown of the University of Maryland School of Law states in his recent Summary Judgment in Maryland, 38 Md.L.Rev. 188 (1978):

Because of the seriousness and frequent complexity of the issues posed by constitutional questions, the need for a full and complete factual hearing often precludes summary judgment in constitutional cases. In Lawrence v. State Department of Health, (247 Md. 367, 373, 231 A.2d 46 (1967),) for example, the Court of Appeals upheld the denial of summary judgment and warned that "(c) onstitutional issues are generally not to be decided on mere conclusions of the pleadings." When the circumstances allow, however, summary judgment is appropriate in these cases as well. Cases that primarily raise issues of fraud or intent are also generally ill suited for summary judgment due to the need for greater than usual factual development, but when there is no genuine issue of material fact, summary judgment may be appropriate. (Id. at 220-21 (footnotes omitted).)

The Maryland rule on summary judgment was modeled on the federal rule. Thus, it is not surprising that the Supreme Court also has observed that in reviewing a motion for summary judgment the facts must be considered most favorably to the party opposing the motion. See, e. g., Wolston v. Reader's Digest Assn., Inc., 443 U.S. 157, 161, n. 5, 99 S.Ct. 2701, 2705, 61 L.Ed.2d 450 (1979), in the context of a case involving the New York Times rule; Bishop v. Wood, 426 U.S. 341, 347, n. 11, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976), and United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).


As previously indicated, Delia is an officer of the Prince George's County Police Department. Berkey is a psychiatrist. On September 25, 1976, while on uniformed patrol on the Capital Beltway, Delia stopped Berkey, charging him with exceeding the posted speed limit. This litigation grows out of that incident.

The first count of Delia's declaration was in libel based upon the following letter:


Boulevard Medical Center

8301 Arlington Boulevard

Fairfax, Virginia 22030

Telephone (703) 573-2944

September 30, 1976

John Rhoades, Chief of Police

Prince George's County

3415 N. Forest Edge Road

Forestville, Maryland

Dear Chief Rhoades:

This is to request an investigation on Private Gregory Delia. The reason for this request has to do with the officer's behavior when he stopped my car by signalling with lights flashing from his patrol car. He asked for my license and automobile registration but gave me no reason (until asked); he had high power spot lights directed at my car and upon request, he refused to deflect or turn them off. 1 After writing up the summons, he refused to repeat his inaudible instructions and insisted I sign the summons immediately or that he would "take me in." Private Delia kept the high powered lights directed into my wife's eyes, my twelve year old son's eyes and my own while he kept his back toward the beam. (I couldn't identify Private Delia if my life depended on it because of the blinding light).

I regard his behavior as abnormally cruel and inhumane, rude and insensitive, threatening and punative (sic). I neither look nor behave like a fugitive, but I, as well as my wife and son, were treated by Private Delia as such.

Partly because of my professional background and training, I question if this young officer is mentally deranged, if he is psychopathic and/or pathologically sadistic. This letter is to formally request a mental evaluation of Private Delia.

My speedometer read 60 mph (not 70 as I was told) and I had been maintaining this speed where safe, since leaving Salisbury, Md.

I shall look forward to your reply.


/s/ Barry R. Berkey

Barry R. Berkey, M.D.


cc The Honorable James Magruder Rea 2

cc Mr. Darryl L. Wyland, Esq.

(Emphasis in original.)

The Prince George's County Police Department made an investigation as a result of Berkey's letter. The second count of the declaration is in slander. That complaint is an outgrowth of the investigation. It alleged that "(o)n or about October 21, 1976, . . . Berkey . . . did willfully, intentionally, and maliciously make false and defamatory statements to an investigator for the Prince George's County Police Department that . . . Delia had a 'real emotional problem', and 'should seek professional help', and that (Delia) was 'abnormally cruel and inhumane, rude and insensitive, threatening and punitive.' "

Delia's version of the incident in question is concisely stated in his answer to interrogatories:

On September 25, 1976, at approximately 10:45 p. m. while on patrol, southbound on Rt. 495 at Rt. 202, I had occasion to pace a 1973 Plymouth bearing Virginia registration DHX 466. I paced the vehicle at 70 m.p.h. and made a traffic stop on Rt. 495 approaching Central Avenue in Largo, Maryland. When the vehicle pulled to the shoulder of the road, I turned on the high intensity lights and spot light to illuminate the vehicle and approached the operator, Dr. Berkey. I requested the operator's license and registration but before I could explain the reason for the traffic stop, the operator demanded an explanation. I advised Dr. Berkey it was for speeding, for which he would receive a ticket, and again asked for the license and registration. After giving them to me Dr. Berkey told me to put out the lights on my car because they were blinding him. I advised him that the lights were on for both his safety and mine and returned to my cruiser, where I prepared a traffic ticket for speeding 70 m.p.h. in a 55 mile zone. I then returned to Dr. Berkey's car and advised him that I had issued a ticket for speeding, explained the ticket and the requirement for signing it. Dr. Berkey then asked a series of questions about the ticket and then he said he could not hear me. I repeated the portion which explained his signature, and he took the summons book from me. After he had the book he asked me several...

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