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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 02838 September Term, 2008

NICHOLAS A. PISCATELLI v. VAN SMITH, et al.

Eyler, James R.,

Kehoe,
Sharer, J. Frederick, (Retired, Specially Assigned) JJ.

Opinion by Kehoe, J.

Filed: January 27, 2011

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 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. F ACTUAL AND P ROCEDURAL B ACKGROUND 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

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Piscatelli phrases the issue as:

Did the circuit court err in granting summary judgment in favor of the City Paper based upon the fair reporting privilege, a qualified privilege, where Piscatelli had generated an issue whether the qualified privilege had been abused which is a question of fact for the jury? 1

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 kill 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. 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:

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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, 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 Binghamton 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 30s [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

The articles contain occasional parenthetical comments set off by brackets, i. e. "[]." To avoid confusion, we will underline as well as bracket our insertions. 3

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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 Piscatelli had something to do with her son's death. Her radar went up early on, when she met with detective Blane 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."

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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

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Maryland Law