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MARC LINCOLN MARKS v. BELL TELEPHONE COMPANY PENNSYLVANIA (01/27/75)

decided: January 27, 1975.

MARC LINCOLN MARKS, APPELLANT,
v.
BELL TELEPHONE COMPANY OF PENNSYLVANIA



COUNSEL

Herman M. Rodgers, Rodgers, Marks & Perfilio, Sharon, for appellant.

Jerome J. Shestack, Michael J. Mangan, Schnader, Harrison, Segal & Lewis, Philadelphia, for Bell Telephone Co.

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

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion.

Author: Roberts

[ 460 Pa. Page 77]

OPINION OF THE COURT

Appellant brought this action in equity to enforce his rights under the Pennsylvania Anti-Wire Tap Act.*fn1

[ 460 Pa. Page 78]

This proceeding raises important questions regarding the remedies available for a violation of the Act as well as the responsibilities of telephone carriers under the Act.

The events leading to this appeal began in October, 1972, when the City of Sharon, Pennsylvania, installed a telephone recording system at its police department headquarters. The system, connected to all three listed department telephone numbers, automatically recorded all calls, both incoming and outgoing, conducted on police department telephones. It was structured so that the desk officer could not disengage it if a party to the communication objected to the interception.

To render this recording system compatible with the telephone system, the city requested that the Bell Telephone Company of Pennsylvania install a device called a "recorder connector." This device, which is interposed between the recorder and the telephone lines, protects Bell Telephone's equipment and employees from "voltage surges" caused by the recording system. In compliance with its tariffs, Bell installed the "connector."*fn2

On November 24, 1972, appellant, an attorney practicing in Sharon, apparently received a message asking him to call a client held in custody at police headquarters. In response to this message, appellant telephoned the police department. While speaking to the client's mother, who was also at the police station, an unusual noise on the

[ 460 Pa. Page 79]

    telephone line caused appellant to suspect the police were recording the conversation. He immediately asked to speak with the officer in charge, who confirmed his suspicions. Appellant requested that the interception stop but was informed that the officer could do nothing to terminate the interception. Later that day, the client, using a police department telephone, returned appellant's call. This conversation was also monitored over appellant's objections.

Appellant repeatedly demanded that the interception and recording halt. The police department refused. On November 27, 1972, appellant contacted Bell Telephone Company requesting that it cease its participation in the interception and recording by removing the "connector." This demand was also refused.

On November 28, 1972, appellant filed a complaint in equity in the court of common pleas seeking 1) preliminary and permanent injunctions prohibiting the city and Bell Telephone from intercepting and recording calls made by all individuals to or from police headquarters, 2) compensatory damages of $25,000 and punitive damages of $350,000 from Bell Telephone, and 3) compensatory damages of one dollar and punitive damages of $75,000 from the city. The trial court, without hearing evidence, denied appellant's motion for a preliminary injunction. Appellant appealed to this Court and we vacated the equity court's decree and remanded for an evidentiary hearing. On remand, the court, after a hearing, again refused to issue a preliminary injunction. Appellant appealed to this Court and, because the city stated that the recorder had been and would remain disconnected pending the outcome of the litigation, we affirmed the trial court's decree. Marks v. Bell Telephone Co., 450 Pa. 542, 301 A.2d 373 (1973).

[ 460 Pa. Page 80]

In April, 1973, after conducting further hearings, the court, relying upon our decisions in Commonwealth v. Papsyzcki, 442 Pa. 234, 275 A.2d 28 (1971), and Commonwealth Page 80} v. Murray, 423 Pa. 37, 223 A.2d 102 (1966), held that Sharon's monitoring system violated the Pennsylvania Anti-Wire Tap Act. The court ordered Sharon to terminate its interception of appellant's calls but awarded no damages. The court also concluded that Bell Telephone had not violated the Act.

Appellant filed exceptions protesting, inter alia, 1) the decree in favor of Bell Telephone, 2) the court's failure to award damages, and 3) the court's failure to enjoin all use of the recording system. These exceptions were denied and this appeal ensued.*fn3

I. LIABILITY OF BELL TELEPHONE

Appellant argues that Bell Telephone violated the Anti-Wire Tap Act by supplying the city with a "recorder connector" which enabled the city to monitor telephone conversations and by failing to disconnect the device when informed of the illegal activities of the city. Appellant does not claim, nor could he, that Bell actually engaged in the monitoring. His contention is that Bell is liable as an aider and abettor. Our statute provides that any person who "wilfully ...


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