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ALFRED R. BOETTGER v. THOM LOVERRO AND EASTON PUBLISHING COMPANY. APPEAL EASTON PUBLISHING COMPANY. ALFRED R. BOETTGER (01/03/86)

filed: January 3, 1986.

ALFRED R. BOETTGER
v.
THOM LOVERRO AND EASTON PUBLISHING COMPANY. APPEAL OF EASTON PUBLISHING COMPANY. ALFRED R. BOETTGER, APPELLANT, V. THOM LOVERRO AND EASTON PUBLISHING COMPANY



Appeal from the Judgment in the Court of Common Pleas of Northampton County, Civil No. 1982-C-2846

COUNSEL

April L. Cordts, Easton, for appellant in No. 984 and for appellee in No. 1035.

Spaeth, President Judge, and Johnson And Shoyer,*fn* JJ. Johnson, J., files a concurring opinion.

Author: Spaeth

[ 349 Pa. Super. Page 136]

This appeal is from a judgment awarding damages to appellee under Section 5725 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. ยงยง 5701 et seq.*fn1 Appellant, a newspaper, published an article containing quotations from the transcript of appellee's wiretapped conversations. The transcript was attached to the Commonwealth's answer to a motion for discovery, filed incident to the prosecution of appellee, and was given to one of appellant's reporters by the clerk of the court. In addition to statutory and constitutional arguments, appellant argues that it is exempt from liability for publishing information of legitimate public concern obtained from court records accessible to the public. We agree that when enacting section 5725, the General Assembly intended such an exemption. We therefore reverse and enter judgment for appellant.

I

The trial court has summarized the facts, which it noted were largely undisputed, as follows:

[ 349 Pa. Super. Page 137]

On November 17, 1981, the state police secured a wiretap permit from the Attorney General. Under the permit, a private citizen named Wayne Dickinson consented to a phone tap. On November 19, 1981, the state police intercepted a telephone conversation between the plaintiff [appellee] and Dickinson. During the conversation, plaintiff revealed his involvement in the acceptance of illegal bets on college football games. On December 12, 1981, the state police raided plaintiff's home. After the search, he was arrested on charges of bookmaking, pool selling and conspiracy. A preliminary hearing resulted in the charges being bound over for criminal court. On February 9, 1982, a motion for discovery was filed in the criminal case. The motion included a request for production of a transcript of the wiretap. Inadvertently, [] the district attorney attached a copy of the transcript to his answer and filed it with the clerk of court. To make matters even worse, the district attorney did not direct the clerk to impound the file.

With these highly sensitive records lying outside the court's direct supervision, the stage was set for the unusual happenings which subsequently took place. On March 31, 1982, a suppression hearing was held in the criminal case. The hearing was open to the public. Among the observers was Thom Loverro, a reporter for the Easton Express.*fn2 He covered the hearing because he expected that the evidence would disclose the contents of the wiretaps. But, he did not get his story in the courtroom. As he sat there, the hearing judge disposed of the motion to suppress without ever getting into the contents of the tapes. When the hearing ended, Loverro went to the office of the clerk of court; and, he asked to see the case file.*fn3 Not being subject to impoundment, it was made available to him. In the file, Loverro discovered a transcript of the wiretaps. He made extensive notes of its content. Later that same day, he returned to his office and began writing a story based upon the excerpts taken from the transcript of the wiretaps. However, the story was withheld for approximately seven days. In the

[ 349 Pa. Super. Page 138]

    meantime, Loverro discussed the running of the story with his superiors. On April 7, 1982, the managing editor approved publication. The newspaper article contained quotations from the transcript of the wiretaps.

Slip op. of tr. ct. at 2-3.

Appellee's complaint, which was filed on April 13, 1982, named as defendants both appellant, as the publisher of the Easton Express, and its reporter, Loverro. Appellee sought to recover on two grounds: the common law tort of invasion of privacy, and the cause of action for unlawful disclosure or use created by section 5725. During the trial, in September 1983, Loverro was dropped as a defendant, N.T. 130-31, and the action for invasion of privacy was withdrawn, id., 91. The trial court denied appellant's requested points for charge and directed a verdict in favor of appellee on the issue of liability for unlawful disclosure or use, appellant excepting to the direction. The jury then returned a verdict of $1,000 actual damages (the statutory minimum), no punitive damages, and $17,409.43 for attorney's fees. Appellant filed a timely motion for judgment n.o.v. or new trial. On March 6, 1984, the court en banc, composed of the trial judge alone, denied the motion. Judgment was entered and this appeal followed.

II

We may first consider appellant's argument that when read literally, section 5725 does not make unlawful appellant's publication of a newspaper article containing quotations from the transcript of appellee's wiretapped ...


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