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ALFRED R. BOETTGER v. THOM LOVERRO AND EASTON PUBLISHING COMPANY (03/08/89)

decided: March 8, 1989.

ALFRED R. BOETTGER, APPELLANT,
v.
THOM LOVERRO AND EASTON PUBLISHING COMPANY, APPELLEES



Appeal from the Order of the Superior Court in Nos. 984 and 1035 Philadelphia, 1984 Entered January 3, 1986, Reversing the Order of the Court of Common Pleas of Northampton County in No. 1982-C-2846 Entered March 6, 1984, Denying Plaintiff's and Defendants' Motion for Post-Trial Relief and Entering Final Judgment on the Verdict, Nix, C.j., and Flaherty, Zappala and Papadakos, JJ. Larsen, J., and McDermott, J., did not participate in the consideration or decision of this case. Nix, C.j., files a dissenting opinion.

Author: Zappala

[ 521 Pa. Page 368]

OPINION

In this appeal we review an Order of the Superior Court reversing an Order of the Court of Common Pleas of Northampton County denying all parties' cross-motions for post-trial relief and entering final judgment on a jury verdict rendered in favor of Appellant. That verdict resulted from a civil action brought by Appellant against Appellee, Easton Publishing Company and one of its reporters, Thom Loverro, under § 5725 of the Wiretapping and Surveillance Control Act (Act) 18 Pa.C.S. § 5701 et seq. Section 5725 provides a civil cause of action for damages incurred due to the unlawful disclosure or use of a wire or oral communication obtained pursuant to or in violation of the Act. The trial court, in rejecting Appellee's motion, took the position that the Act created a limited right of disclosure which previously had not existed and therefor, notwithstanding the status of Appellee as "the press", "[the Legislature] evidences an overiding legislative concern for the protection of privacy. Thus, we believe that all disclosures and uses of wiretap information must be in strict compliance with the Act." Opinion of Common Pleas Court at 8. (Filed, March 6, 1984) (emphasis added).

The Superior Court, in reversing the trial court, 349 Pa. Super. 134, 502 A.2d 1310, created an implied exemption

[ 521 Pa. Page 369]

    from liability as to the media for violation of the disclosure provisions where the disclosure was of legitimate public concern and lawfully obtained from court records accessible to the public. We granted allocatur to determine, as a question of first impression, whether or not such an exemption should be read into § 5725. After carefully reviewing the provisions of the Act, we hold that the Act makes no provision for a media exemption nor need one be implied.

Both lower courts found the facts to be largely undisputed and those relevant to the disposition of this appeal indicate that on November 17, 1981, the State Police secured a wiretap permit from the Attorney General pursuant to § 5704(2)(ii) of the Act. At the request of the State Police, a private individual, known to Appellant, consented to a telephone tap between himself and the Appellant. Shortly thereafter, the State Police intercepted a telephone conversation between Appellant and the consenting individual which revealed the Appellant's involvement in illegal betting activities on college football games. Based upon the information obtained from the intercept, the State Police raided Appellant's home and charged him with book-making, pool selling and conspiracy. After being held for court on the charges, Appellant filed a timely motion for discovery, requesting the District Attorney produce a transcript of the intercepted call. Inadvertently, but in violation of the disclosure section of the Act, 18 Pa.C.S. § 5717(b), the District Attorney attached a copy of the transcript to his answer and filed it with the clerk of courts. No attempt was made by the District Attorney to direct the clerk to impound the file as required by § 5714(b) of the Act.

On March 31, 1982, a suppression hearing was held on Appellant's motion to suppress the introduction of the intercepted communication. One of the observers present at the hearing was Thom Loverro, a reporter for the Easton Express, a newspaper owned by Appellee's publishing company. Loverro expected that the hearing would disclose the contents of the wiretap, however, the hearing judge disposed of the motion without such disclosure. Following the

[ 521 Pa. Page 370]

    hearing, Loverro went to the office of the clerk of court and requested the case file. The file was made available to Loverro, who discovered the transcript of the interception which had been attached to the District Attorney's answer to Appellant's discovery request. Loverro made extensive notes on the contents of the transcript and subsequently wrote a story based upon those notes. He withheld publication of the story for approximately seven days, however, while he discussed the matter with his superiors. On April 7, 1982, the managing editor approved publication and the article was published with excerpts of Loverro's notes from the transcript.

After the publication, Appellant filed a lawsuit against Easton Publishing Company and Loverro predicated upon the common law tort of invasion of privacy and the statutory civil action created by § 5725. Subsequently, Loverro was dropped as a defendant and the common law invasion of privacy count was withdrawn. Following trial on the action, the trial judge directed a verdict in favor of Appellant as to the issue of liability. The jury then returned a verdict of $1,000 in actual damages, no punitive damages, and $17,409.43 in attorney's fees. The court en banc dismissed Appellant's post-trial assertion that punitive damages were mandatory, and likewise dismissed Appellee's motion for judgment n.o.v., attacking the directed verdict on various grounds.

In reversing the court en banc's interpretation of the Act, the Superior Court reasoned that while Appellee had indeed violated the Act by its publication of the article containing portions of the transcript, to sustain the media's liability for that violation would be a constitutional transgression and therefore deemed it necessary to imply a "media exemption" in the Act to preserve its constitutionality. Our reading of the Act together with other relevant Pennsylvania precedent, however, leads us to conclude that the exemption created by the Superior Court is unnecessary.

Pennsylvania's Wiretapping and Surveillance Control Act, is a pervasive scheme of legislation which suspends an

[ 521 Pa. Page 371]

    individual's constitutional right to privacy only for the limited purpose of permitting law enforcement officials, upon a showing of probable cause, to gather evidence necessary to bring about a criminal prosecution and conviction. The statute sets forth clearly and unambiguously by whom and under what circumstances these otherwise illegal practices and their derivative fruits may be used. Section 5703 of the Act, sets forth the specific prohibition against the interception and disclosure of these materials

§ 5703. Interception, disclosure or use of wire or oral communications

Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:

(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 ...


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