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MONTONE v. RADIO SHACK

October 25, 1988

JOSEPH J. MONTONE, Plaintiff,
v.
RADIO SHACK, a division of TANDY CORPORATION, Defendant


Louis H. Pollak, United States District Judge.


The opinion of the court was delivered by: POLLAK

LOUIS H. POLLAK, UNITED STATES DISTRICT JUDGE

 In this diversity case, plaintiff, a former sales manager at defendant's Lawrenceville, New Jersey store, alleges wrongful discharge and breach of contract arising out of the termination of his employment with the defendant. Plaintiff claims to have been fired because of his cooperation with state officials in a criminal investigation.

 Presently before this court is defendant's motion in limine to exclude certain evidence from trial that the plaintiff allegedly obtained in violation of Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. § 5703. The evidence at issue relates to a telephone conversation between plaintiff and plaintiff's former supervisor, Hank Boyer, that took place on December 3, 1985. Defendant contends that plaintiff placed the call to Mr. Boyer from a telephone in Pennsylvania and recorded the conversation without obtaining Mr. Boyer's consent. According to both parties, the conversation includes a number of statements by Mr. Boyer relating his impressions concerning plaintiff's discharge.

 Under the Pennsylvania Wiretapping statute, 18 Pa.C.S.A. § 5703, a person commits an unlawful interception, disclosure, or use of wire or oral communications if he

 
(1) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire or oral communication;
 
(2) willfully discloses or endeavors to disclose to any other person the contents of any wire or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire or oral communication; or
 
(3) willfully uses or endeavors to use the contents of any wire or oral communications, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of wire or oral communication.

 Tape recording a telephone conversation without the consent of all parties violates the Act, even if the person making the recording is one of the participants in the conversation. See Commonwealth v. Jung, 366 Pa. Super. 438, 531 A.2d 498, 504 (1987) ("in the case of a private individual, it is the law of Pennsylvania under 18 Pa.C.S.A. § 5704(4) that all parties to the communication must consent to the interception") (emphasis in original); 18 Pa. C.S.A. § 5702 (defining "intercept" as "aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical or other device"). Thus, Pennsylvania has adopted more expansive protections under its wiretapping statute than those set forth in the federal wiretapping statute, 18 U.S.C. § 2510, et seq., which permits one party to a conversation to consent to its recording. See 18 U.S.C. § 2511(2)(d) ("It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication . . . .").

 The Pennsylvania wiretapping statute further provides that any person who is a victim of unlawful wiretapping may move, in an adversary proceeding before any court, to "suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom." 18 Pa.C.S.A. § 5721.

 On the basis of these statutory provisions, the defendant maintains that the conversation recorded by plaintiff without Mr. Boyer's consent, as well as any additional evidence derived from the conversation, must be excluded from evidence. Plaintiff responds that Pennsylvania's statutory prohibition against unilateral wiretapping and its rule excluding evidence thereby obtained are not applicable to the present proceedings, because federal law, including congressional statutes and the Federal Rules of Evidence, and not state law, controls the admissibility of evidence in federal court.

 Discussion

 In a diversity case, when a federal court finds that state evidentiary law (whether decisional or statutory) would exclude certain testimony whereas federal evidentiary law would admit it, the court must follow federal law unless one of the Federal Rules of Evidence expressly invokes state law. See e.g., Hughes v. Hemingway Transport, Inc., 539 F. Supp. 130 (E.D. Pa. 1982). *fn1" This doctrine accords with the Supreme Court's holding in Hanna v. Plumer, 380 U.S. 460, 14 L. Ed. 2d 8, 85 S. Ct. 1136 (1965), which, prior to the adoption of the Federal Rules of Evidence, recognized congressional authority to make rules governing practice in federal courts that, "though falling within the uncertain area between substance and procedure, are rationally capable of classification as either." Id. at 472. Because rules of evidence are "largely procedural," Hanna generally compels application of federal law to evidentiary issues that arise in federal court. Salas v. Wang, 846 F.2d 897, 906 (3d Cir. 1988). In some instances, though, the Federal Rules of Evidence call for the application of state evidentiary law.

 The issue in this case is whether a state rule excluding evidence -- the Pennsylvania wiretap statute -- creates a "privilege" within the meaning of Rule 501 of the Federal Rules of Evidence. Rule 501 provides, in relevant part, that "in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State or political subdivision thereof shall be determined in accordance with State law." Accordingly, the Third Circuit has held that a federal court hearing an action in which state law supplies the rule of decision is required "to apply the law of privilege which would be applied by the courts of the state in which it sits." Samuelson v. Susen, 576 F.2d 546, 549 (3d Cir. 1978); see also In re Westinghouse Electric Corp., 76 F.R.D. 47 (W.D.Pa. 1977). If, on the other hand, a party in federal court seeks to exclude evidence solely on the basis of a ...


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