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MARKS v. BELL TELEPHONE COMPANY PENNSYLVANIA (03/16/73)

SUPREME COURT OF PENNSYLVANIA


decided: March 16, 1973.

MARKS, APPELLANT,
v.
BELL TELEPHONE COMPANY OF PENNSYLVANIA

Appeal from order of Court of Common Pleas of Mercer County, Dec. T., 1972, No. 8, in case of Marc Lincoln Marks v. Bell Telephone Company of Pennsylvania, City of Sharon, Pennsylvania, Basil Scott and Daniel Gross.

COUNSEL

Herman M. Rodgers, with him Henry Sewinsky, and Rodgers, Marks & Perfilio, for appellant.

Jerome J. Shestack, with him Michael J. Mangan, John B. King, William M. Hebrank, and Schnader, Harrison, Segal & Lewis, for Bell Telephone Company of Pennsylvania, appellee.

John J. Regule, City Solicitor, for City of Sharon, appellee.

Stanford Shmukler, with him Frank Edward Roda, for Pennsylvania Trial Lawyers Association, amicus curiae.

Barry J. Lipson, for American Civil Liberties Foundation of Pennsylvania, amicus curiae.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.

Author: Per Curiam

[ 450 Pa. Page 544]

On November 28, 1972, appellant, an attorney in and a resident of Sharon, Pennsylvania, filed a complaint in equity, seeking injunctive relief and monetary damages, against the City of Sharon, its Mayor (Basil Scott), its Chief of Police (Daniel Gross) and Bell Telephone Company. The basis of this complaint was appellant's allegation that the defendants, by continuously recording all incoming and outgoing telephone calls from the Sharon Police Department, without the consent of the non-police party, were unlawfully infringing upon appellant's rights as an attorney (as well as the rights of appellant's clients in the custody of the Sharon police) and as a private citizen residing within the City of Sharon.*fn1

On that same date, November 28, 1972, the trial court issued a rule to show cause why the defendants should not be enjoined. On November 30, defendants filed preliminary objections, and without allowing appellant Marks the right to offer evidence, the trial court denied appellant's request for a preliminary injunction. On December 1, appellant appealed to this Court, and on December 2, given the gravity and public importance of appellant's allegations, we remanded the matter to the trial court with instructions that an

[ 450 Pa. Page 545]

    evidentiary hearing be conducted forthwith and an adjudication made. In compliance with our order, the remand hearing was held on December 5.

After hearing two days of testimony, the trial court found the following facts: In October of 1972, the City of Sharon, with funds obtained from the Law Enforcement Assistance Agency and the Pennsylvania Justice Commission,*fn2 installed an automatic recording device (Dictaphone 4000), in the Sharon Police Department, which taped all calls made from and to the Department.*fn3

This equipment emits a slight "beep tone" approximately every 15 seconds. Obviously, this "beep" is meaningless to the non-police party, unless that party is aware of the fact that the "beep" indicates that the conversation is being taped. Prior to the installation of this recording equipment, Bell Telephone, pursuant to its tariff, installed a "connector" in order to facilitate a coupling of the Dictaphone recorder to the lines operated and controlled by Bell.*fn4

The purpose of this continual recordation, as explained by Police Chief Gross, is to insure that complaints are being promptly answered, to verify that particular calls were made, and to aid in "scientific type detections." Mainly, the use, as testified by Chief

[ 450 Pa. Page 546]

Gross, is "administrative."*fn5 The Chief further testified that even in an emergency, no other police officer (except one specific detective who changed the tapes) could retrieve and replay a tape, since only he (Chief Gross) and the detective had keys to the apparatus. The tapes are kept for thirty days, and then erased as they are reused.

Appellant Marks was subjected to this tapping on November 24, 1972,*fn6 when he was requested to call a client who was under arrest at the Sharon Police Department. While engaged in a telephone conversation with the client's mother, who was also at the station, appellant noticed an "unusual" sound on the line, and requested that the phone be turned over to the sergeant in charge. After asking the officer if the phone was "bugged", appellant was advised that his, as well as all other calls on police lines, were automatically recorded, and that the officer would not and could not disconnect the monitoring equipment. Later that same evening, appellant Marks was called by his client, who was still in the custody of the Sharon police. Again, the call was being recorded, and again the officer refused to disconnect the equipment.*fn7 Appellant thereafter

[ 450 Pa. Page 547]

    drove to the police station, where he spoke with Chief Gross, who also refused to terminate the recording.

Notwithstanding these findings, the trial court refused to grant appellant's request for a preliminary injunction. However, in so doing, the chancellor stated: ". . . [W]e are not being called on at the present .time to dispose of the ultimate issue that we will reach in this case. We recognize that these issues may be of great importance and what the decision will ultimately be may create some impact on police procedure not only in Sharon, Pennsylvania but in other parts of this state and country. We are willing to ultimately accept the responsibility of reaching that decision but we do not feel that the importance of the ultimate issue in this case is a sufficient reason of itself for the issuance of a preliminary injunction."

Appellant now, in essence, alleges that the trial court abused its discretion, and urges us to reverse the denial of the preliminary injunction.

Although serious statutory and constitutional issues are posed by this appeal, we need not decide them now since appellees, under oath, in Answer to Appellant's Petition for Advancement, and orally, before the bar of this Court, stated that the recorder has been disconnected and that no further taping will occur "pending a final determination of this entire lawsuit."

In view of this representation of record we need not pass on the propriety of the chancellor's refusal to grant a preliminary injunction. The matter is remanded to the trial court with instructions to proceed expeditiously to a final adjudication.

Each party to pay own costs.

Disposition

Matter remanded to lower court with instructions to proceed to a final adjudication.


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