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March 26, 2026 Get Citation Alerts Download PDF Add Note

Ernest J. Cardillo, Jr. v. Donald M. Chabon.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 25-P-0208

• Precedential Status: Non-Precedential

• Opinion

• Authorities (10)

• Cited By (0)

• Summaries (0)

• Similar Cases (41.6K)

• PDF

Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-208

ERNEST J. CARDILLO, JR.

vs.

DONALD M. CHABON.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Ernest J. Cardillo, Jr., the former fire

chief for the town of Stockbridge, appeals from a judgment of

the Superior Court granting the defendant's motion for summary

judgment and dismissing his complaint for defamation and

infliction of emotional distress. Cardillo claims that the

judge erred in granting summary judgment to the defendant,

Donald M. Chabon, because Chabon's statements to a newspaper

reporter were defamatory and made with actual malice. For the

reasons set forth below, we affirm the entry of summary judgment

in favor of Chabon.

Background. We view the facts in the light most favorable

to the nonmoving party, here, Cardillo, and conduct an
independent examination of the record as a whole. Reilly v.

Associated Press, 59 Mass. App. Ct. 764, 765 (2003), citing

Dulgarian v. Stone, 420 Mass. 843, 847 (1995).

In 2012, Cardillo was appointed to the position of fire

chief for the town of Stockbridge.1 That same year, Cardillo

received an unsolicited telephone call from a sales

representative of a New York company, Pioneer Products Inc.

(Pioneer). Cardillo agreed to purchase four gallons of fire

hose and gear cleaner from Pioneer.2 While the parties did not

sign a written contract, it is undisputed that Cardillo agreed

to this purchase and submitted the invoice to the town for

payment.3 Sometime after the initial purchase, Cardillo was

contacted by Pioneer and told that the purchase price paid for

his first order was contingent on accepting additional

shipments. The sales representative told Cardillo that if he

did not place an additional order, Pioneer would submit an

amended invoice for the first shipment at a significantly higher

1 In 2015, in addition to his role as fire chief, Cardillo
was elected to serve a term on the three-member selectboard for
the town. He was reelected to serve his third term in 2018.
Cardillo served with Chabon, who was elected to the selectboard
in 2016 and Terence Flynn, who was elected in 2017.

2 The first purchase from Pioneer amounted to $229.04.

3 Starting in 2014, Cardillo, using his work computer and
during his working hours, began maintaining a budgetary
spreadsheet for the purchases he approved for the fire
department.

2
price. Although there did not appear to be anything in writing

memorializing Pioneer's claim that the price could be increased

retroactively, Cardillo felt pressured and placed an additional

order to avoid the ballooning costs.

In 2014, Pioneer contacted Cardillo and offered to sell a

product referred to as "Fire Foam," and Cardillo agreed to the

purchase, believing that the price was favorable to the town. A

few months later, Pioneer telephoned Cardillo and insisted that

he purchase more Fire Foam. Cardillo explained that the town

did not need any more of this product, as it still had plenty of

stock remaining from the original purchase. Again, Cardillo was

reminded that if he did not place an additional order, Pioneer

would need to revise the original bill to reflect a

significantly higher price that would be applied retroactively.

Cardillo placed another order to avoid this consequence. This

pattern continued for the next four years and, while the initial

purchases were modest, the quantity and cost of the products

ordered by Cardillo increased significantly over the course of

time.4

4 For example, while the first purchase order in 2012 was
less than $300, in a two-month time frame between December 2016
and February 2017, Cardillo purchased approximately $13,500
worth of products.

3
In 2018, one of Cardillo's purchases came to the attention

of the town administrator, resulting in the selectboard

retaining town counsel.5 Town counsel (Miyares) was tasked with

investigating Cardillo's purchases from Pioneer and a related

company, Noble Industrial Supply Corp. (Noble), and issuing a

report (the "Miyares report"). The Miyares report found that

both Pioneer and Noble had a history of defrauding small town

governments, especially fire departments. The Better Business

Bureau had received complaints that the companies would

initially offer to sell a product at a "seemingly favorable

price" but then later demand additional purchases be made to

avoid being charged for prior purchases at a higher rate.

Pioneer and Noble shipped more products, each time with the

representation that the customer had to accept the delivery to

avoid additional charges. Even when customers complained that

they had an adequate supply of a particular product, the message

from Pioneer and Noble was firm. They would offer to switch to

a different product, but the customer was obligated to pay for

additional purchases.

With this backdrop, Miyares reviewed the records for the

purchases made by Cardillo and noticed some discrepancies. In

5 At the time, the three-member selectboard for the town of
Stockbridge consisted of Chabon, Flynn, and Cardillo. As a
selectboard member, Cardillo recused himself from matters
relating to the fire department.

4
December 2016, Cardillo agreed to purchase $6,779 of deicer from

Pioneer. However, Cardillo's spreadsheet identified the vendor

as Fire Tech instead of Pioneer. Two months later, Cardillo

purchased additional deicer from Pioneer totaling $6,780 but

logged the vendor as Meadow Farm and described the expenditure

as fuel. The pattern was repeated in 2017, when Cardillo

purchased over $7,500 of supplies (heavy duty truck wash and

hose and gear cleaner) despite making the same purchase several

months previous. This purchase was from Noble, but Cardillo

listed the vendor as Stock Motor Car on the spreadsheets.

Miyares compared the prices charged by Pioneer and Noble

with market prices for the same or similar products and

concluded that the town was overcharged by at least $45,000.6

This estimate "did not take into account the fact that many of

the products received are in excess of the Department's needs

and may never actually be used." Miyares was unable to estimate

the loss due to oversupply because the town accountant lacked

necessary information such as the amount of supplies the fire

department ordinarily used and whether the town could "obtain

some return" from selling the excess products. After the

issuance of the Miyares report, Cardillo submitted a partial

6 The town had not yet paid $20,000 in outstanding invoices,
so "while the final loss figure may be higher," the report
concluded that Pioneer and Noble caused "at least $25,000 in
losses to the Town."

5
inventory of the existing products7 and the town estimated that

the cost of surplus products exceeded $40,000. Miyares

concluded that Cardillo's purchases were improper and in

violation of G. L. c. 30B, § 4, and provided the selectboard

with recommendations to ensure that town employees abide by

applicable procurement laws.8

On February 5, 2019, the two selectboard members, Chabon

and Flynn, conducted a public hearing at which Cardillo was

present and represented by counsel. Cardillo was examined by

Miyares and given the opportunity to present testimony and

evidence. Cardillo stated that he did not dispute anything

contained in the Miyares report. Cardillo testified that, when

dealing with Pioneer and Noble, he never determined if the items

purchased were needed, whether the purchase price was at fair

market value, or whether the vendors were reputable. At the

conclusion of the hearing, Chabon and Flynn voted to terminate

Cardillo's employment as the fire chief, effective immediately.

7 The partial inventory submitted by Cardillo revealed that
the fire department had a substantial inventory of the purchased
items, ranging from an excess of one year's supply of truck wash
to an excess of five years' supply of foam.

8 Miyares concluded Cardillo's purchases violated G. L.
c. 30B because they were not made by the town's chief
procurement officer, three written quotations were not obtained
prior to purchase, and certain required documentation for
purchases over $10,000 was not maintained.

6
Two weeks later, the selectboard sent Cardillo a termination

letter adopting the findings of the Miyares report and

estimating that the town was overcharged $45,000 for the items

purchased and suffered an additional $40,000 loss due to excess

products.

On February 8, 2019, the Springfield Republican newspaper

published an article in response to members of the fire

department protesting Cardillo's termination.9 The article

stated that Cardillo was terminated after repeatedly falling

"victim to scammers" in the purchasing of equipment for the fire

department. The article reported that the selectboard had

estimated that Cardillo's actions cost the town around $83,000.

Chabon told the reporter that after Cardillo had learned that he

had been taken advantage of, he tried to conceal the purchases

and "[h]e changed the books." After the newspaper article was

published, Cardillo filed suit against Chabon alleging

defamation and infliction of emotional distress. Specifically,

Cardillo alleges that two of Chabon's statements were

defamatory; first, that Cardillo's actions cost the town around

$83,000, and second that Cardillo "changed the books" once he

realized that he had fallen prey to a purchasing scam.

9 The article was entitled "Stockbridge firefighters walk
out to protest chief's dismissal; selectmen chair says service
not affected."

7
Discussion. We review the grant of summary judgment de

novo and consider "whether, viewing the evidence in the light

most favorable to the nonmoving party, [Cardillo][,] all

material facts have been established and the moving party

[Chabon] is entitled to judgment as a matter of law" (citation

omitted). LaChance v. Boston Herald, 78 Mass. App. Ct. 910, 910

(2011). Notably, in defamation cases such as this, resolving a

case by way of summary judgment is "especially favored" because

"[a]llowing a trial to take place in a meritless case 'would put

an unjustified and serious damper on freedom of expression.'"

Id. at 910-911, quoting Dulgarian, 420 Mass. at 846.

"The elements of a claim of defamation are 'that the

defendant was at fault for the publication of a . . . statement

regarding the plaintiff, capable of damaging the plaintiff's

reputation in the community, which either caused economic loss

or is actionable without proof of economic loss.'" Kilnapp

Enters., Inc. v. Massachusetts State Auto. Dealers Ass'n, 89

Mass App. Ct. 212, 217 (2016), quoting White v. Blue Cross &

Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004). To prevail

on his defamation claims, Cardillo must prove that Chabon's

statements to the reporter were both defamatory and false.

Dulgarian, 420 Mass. at 847. "This requirement insulates from

liability statements that are not provable as false." Id. And,

when the plaintiff is a public figure, as is conceded here, an

8
additional element must be proved -- that the false and

defamatory statement was "made with 'actual malice' -- that is,

with knowledge that it was false or with reckless disregard of

whether it was false or not." New York Times Co. v. Sullivan,

376 U.S. 254, 279-280 (1964).

We turn to the two alleged defamatory statements made by

Chabon and analyze each statement separately.

1. Cardillo cost the town around $83,000. We first

consider whether Cardillo has met his burden of establishing

that Chabon's statement that Cardillo cost the town around

$83,000 was capable of being proven false. Cardillo contends

that this statement was false because Chabon significantly

overinflated the actual loss to the town, which he claims was

closer to $25,000. A review of the summary judgment record does

not support Cardillo's position.

Here, the Miyares report, which Cardillo accepted in its

entirety, concluded that Cardillo's actions caused the town to

purchase fire products that were both overpriced and unnecessary

for the town's consumption. While the report did not provide a

precise total loss to the town, it did estimate that the town

was overcharged by at least $45,000 and purchased an oversupply

of products that was "in excess of the Department's needs and

may never actually be used."

9
In its written statement terminating Cardillo, issued after

the public hearing, the selectboard adopted the findings of the

Miyares report and quantified the loss to the town. It

determined that the town paid for fire products that exceeded

fair market value by approximately $45,000, plus, pursuant to a

partial inventory Cardillo had prepared of the purchased items

on hand, the "amounts billed for these excess items are

estimated to have cost the [t]own in excess of $40,000."

Therefore, the record does not support Cardillo's assertion

that Chabon's statement that Cardillo's actions cost the town

"around $83,000" was "grossly inflated" and necessarily false.

In fact, Chabon's statement was consistent with Miyares's

estimate that the overpriced products alone cost the town "at

least $45,000" and the board's later estimate, after Cardillo

submitted a partial inventory, that it suffered an additional

loss of about $40,000 in oversupply. These figures were just

that -- estimates -- and while the actual loss to the town was

not determined with precision, without more, Cardillo cannot

establish an essential element of his defamation claim -- that

Chabon's statement was false.

Moreover, we need not determine whether Chabon's cost

estimate is mathematically correct, as we agree with Chabon that

his statement is substantially true. If a statement is

substantially true, a minor or negligible inaccuracy will not

10
support a defamation claim. Reilly, 59 Mass. App. Ct. at 770.

We consider the allegedly defamatory statements as a whole to

determine whether the "gist" or "tenor" of the statements were

accurate (citations omitted). Masson v. New Yorker Magazine,

Inc., 501 U.S. 496, 517 (1991); Salvo v. Ottaway Newspapers,

Inc., 57 Mass. App. Ct. 255, 262 (2003). We take into

consideration the impact of the inaccuracy on the reader or

listener, as compared to the impact of the truth. See Jones v.

Taibbi, 400 Mass. 786, 795–796 (1987). "Put another way, the

statement is not considered false unless it 'would have a

different effect on the mind of the reader from that which the

pleaded truth would have produced.'" LaChance, 78 Mass. App.

Ct. at 912 quoting Masson, 501 U.S. at 517.

Here, Chabon's statement, read as a whole, communicated

that the town incurred a substantial cost when Cardillo fell

prey to a purchasing scam orchestrated by Pioneer and Noble.

The gist of Chabon's statement, even if the precise amount of

loss to the town was inaccurate, is substantially true. The

impact on the reader was the same regardless of whether Chabon's

or Miyares's estimate reflected a thorough accounting of the

financial harm to the town. See Jones, 400 Mass. at 800

(statement that inaccurately reported that person had passed

four separate polygraph tests when only two had been passed was

substantially true and did not amount to falsity as impact of

11
inaccurate statement did not create substantially greater

defamatory sting than accurate report would have). We conclude

that, given the substance of the statement and when read as a

whole, Chabon's statement was essentially true and was

insufficient to establish falsehood for purposes of a claim of

defamation.

1. Cardillo "changed the books". We turn next to the

second statement attributed to Chabon, that Cardillo "changed

the books" to conceal his excess purchases once he realized he

had been taken advantage of by Pioneer and Noble. Cardillo

first argues that in determining whether Chabon's statement was

false, the judge erred in considering the spreadsheets.

Cardillo argues that the spreadsheets fall within an exemption

to the Public Records Law, G. L. c. 4, § 7, because they were

his own personal notations that he used to explain his

purchases. We are not persuaded. As an initial matter, we do

not see how it is relevant whether the spreadsheets are exempted

from disclosure under G. L. c. 4, § 7, given that Chabon's

statement makes no mention of public records at all. In any

event, the definition of a public record under G. L. c. 4, § 7,

is broad and includes records such as the spreadsheets created

by Cardillo in connection with his role as fire chief. See

Rahim v. District Attorney for the Suffolk Dist., 486 Mass. 544,

547 (2020). See also G. L. c. 4, § 7, Twenty-sixth (public

12
record is "all books, papers, . . . financial statements,

statistical tabulations, or other documentary materials or data,

regardless of physical form or characteristics, made or received

by any officer or employee"). Cardillo's argument that the

spreadsheets fall within the statutory exception for "personal"

materials is equally unpersuasive, as it is undisputed that

Cardillo's employment contract required him to keep such

financial records and he created the spreadsheets during working

hours using the computer issued by the town for the fire

department.

Next, Cardillo claims that even if the spreadsheets were

properly considered, Chabon's statement that he "changed the

books" was defamatory and false. It is undisputed that Cardillo

recorded information in the spreadsheets that misidentified

vendors and purchases once he became aware that Pioneer and

Noble had ensnared him in a purchasing scam.10 In two instances,

Cardillo identified purchases from two merchants, Meadow Farm

and Fire Tech, when they were from Pioneer and Noble, and

described one such purchase as fuel when it was, in fact,

deicer. It follows that since Chabon's statement that Cardillo

10Cardillo later attempted to explain these discrepancies
by indicating that he placed an asterisk next to these purchases
to indicate the purchase of fire hose or foam. The Miyares
report found no such asterisk or any other such denotation.

13
"changed the books" is substantially true, Cardillo's defamation

claim must fail accordingly.

1. Actual Malice. We also conclude that Cardillo has not

met his burden with respect to proving that Chabon acted with

"actual malice," which has been defined as proof that the

speaker knew that the statement was false or acted with reckless

disregard as to whether it was false or not. See King v. Globe

Newspaper Co., 400 Mass. 705, 719 (1987). Cardillo's argument

in support of actual malice is based in part on his misguided

belief that the spreadsheets are not public records. For the

reasons stated above, we are not persuaded by this argument.

Chabon was aware from the Miyares report that Cardillo's

spreadsheets contained misleading information and that the town

incurred a significant loss due to Cardillo's transactions with

Pioneer and Noble. Again, Cardillo did not dispute anything

contained in the Miyares report. Chabon's statements, which

were consistent with the Miyares report, therefore, cannot

support an inference that they were made with knowledge of their

falsity or that Chabon had serious doubts as to their truth.

Further, we agree with the motion judge that it is irrelevant to

the actual malice determination that Chabon was aware that

Cardillo had fallen prey to a purchasing scam, that the town

received "some benefit" from the products, or that Chabon

nevertheless offered Cardillo continued employment in the fire

14
department. He offers no other proof to support his contention

that Chabon's statements were published with either knowledge of

untruth or a reckless disregard as to whether they were false.

Since neither falsity nor actual malice has been

established, Cardillo's defamation claims necessarily fail.

Accordingly, the judge's order of summary judgment was proper.11

Judgment affirmed.

By the Court (Shin, Walsh &
Allen, JJ.12),

Clerk

Entered: March 26, 2026.

11Cardillo's complaint also asserted claims of intentional
and negligent infliction of emotional distress based on the
defamation claim. As summary judgment was granted on the
defamation claims, the judge also entered summary judgment on
these claims, concluding they were derivative of the defamation
claim. Cardillo has not raised any argument as to this portion
of the grant of summary judgment.

12 The panelists are listed in order of seniority.

15