Fearnow v. Chesapeake & Potomac Telephone Co. of Maryland

• Decision Date: 01 September 1994
• Docket Number: No. 495,495
• Citation: 655 A.2d 1,104 Md.App. 1
• Parties: Leon C. FEARNOW v. The CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF MARYLAND, et al. ,
• Court: Court of Special Appeals of Maryland

Page 1

104 Md.App. 1

655 A.2d 1

Leon C. FEARNOW v. The CHESAPEAKE & POTOMAC TELEPHONE COMPANY OF MARYLAND, et al.

No. 495, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Jan. 11, 1995.

Motion for Reconsideration March 30, 1995.

Page 13

Patrick A. O'Doherty, Baltimore, and John J. Hirsch, Pasadena (Amy J. Muffolett, Baltimore, on the brief), for appellant.

Anthony W. Kraus (James P. Garland and Miles & Stockbridge, on the brief), Baltimore, for appellees.

Argued before ALPERT, HARRELL and HOLLANDER, JJ.

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

Page 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 (plaintiff's 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 (plaintiff's 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 (plaintiff's proposed instruction no. 15);

D. Maryland's wiretap act required a court order prior to the interception of Fearnow's phone (plaintiff's 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?

Page 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 Page 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

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

Page 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

Page 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

Page 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 reversed

Page 20

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...