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May 23, 2000


The opinion of the court was delivered by: Joyner, District Judge.


This case has been brought before the Court on motion of the Defendant, Circuit City Stores for the entry of summary judgment in its favor as to all of the Plaintiff's claims against it. After carefully reviewing the record evidence adduced by the parties and for the reasons which follow, we shall grant the defendant's motion.

Factual Background

Christian Audenreid was employed by Circuit City in its store in Allentown, Pennsylvania from 1990 until January, 1997. He quickly progressed through the ranks, having been promoted from his initial position as ACE sales counselor to sales lead in the computer department to computer manager to sales manager to operations manager. In late 1996, Plaintiff's store was audited. The results of the audit reflected a below average performance in the area of operations, excellent performance in warranty compliance and poor performance in the area of inventory control. In addition to these problems, the store was experiencing an ongoing cash shortage problem. Investigation revealed that at various cash registers around the store, merchandise was recorded as having been returned for cash when in fact no merchandise had been returned, with the result that cash was effectively being stolen out of the registers. Whenever these instances of theft occurred, the store's video surveillance system had been turned off.

Given that the video system could only be accessed by someone who had access to Plaintiff's office, the loss prevention department decided to place a camera in Mr. Audenreid's office in an effort to determine how the surveillance system was being deactivated. The gravamen of Plaintiff's claim is that he did not know that the loss prevention department had placed this remote surveillance camera in his office until he returned from vacation and observed, on January 10, 1997, a device which appeared to be a motion detector. Upon closer examination, Plaintiff found that it was a camera connected by a coaxial cable leading to the store manager's office. A few days later, Plaintiff also discovered a tape of the OPS manager's office. Although Mr. Audenreid discussed the presence of the camera with Joan Gale and Carla Callahan in the company's Human Resource Department, apparently no efforts were made to remove it.

In and about this same time, on January 13, 1997, the plaintiff received a "Memo of Corrective Action" from Circuit City District Manager Ralph LaSalle for discounting a refrigerator for the parents of one of his store's sales associates on January 3rd in violation of company policy. Although Plaintiff could have been terminated for this action, he instead received only this warning and a copy of this memorandum was placed in his personnel file. It was at this time, however, that Circuit City determined that Mr. Audenreid should be transferred to the position of Operations Manager of the Montgomeryville Store in the hope that this change would help him to develop further as a manager. Specifically, it was the opinion of Defendant's upper level management that since the plaintiff had spent his entire Circuit City career in the Allentown store and had risen fairly quickly through the ranks, he was having difficulty managing his former co-workers. Plaintiff, however, rejected the transfer offer and instead filed this lawsuit contending that he had been wrongfully discharged in violation of both the Federal and Pennsylvania Wiretapping and Electronic Surveillance Control Acts, 18 U.S.C. § 2510, et. seq. and 18 Pa.C.S. § 5701, et. seq. and for his alleged refusal to testify dishonestly before the National Labor Relations Board with respect to a movement to organize Circuit City's employees into a collective bargaining unit.

Standards Governing Summary Judgment Motions

The standards to be applied by the district courts in ruling on motions for summary judgment are set forth in Fed. R.Civ.P. 56. Under subsection (c) of that rule, . . . The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages.

Pursuant to this rule, a court is compelled to look beyond the bare allegations of the pleadings to determine if they have sufficient factual support to warrant their consideration at trial. Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C.Cir. 1988), cert. denied, 488 U.S. 825, 109 S.Ct. 75, 102 L.Ed.2d 51 (1988); Aries Realty, Inc. v. AGS Columbia Associates, 751 F. Supp. 444 (S.D.N.Y. 1990).

Generally, the party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa. 1991); Schillachi v. Flying Dutchman Motorcycle Club, 751 F. Supp. 1169 (E.D.Pa. 1990).

Where, however, "a motion for summary judgment is made and supported [by affidavits or otherwise], an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against [it]." Fed.R.Civ.P. 56(e). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion and it cannot rely on unsupported assertions, conclusory allegations, or mere suspicions or beliefs in attempting to survive such a motion. Tziatzios v. U.S., 164 F.R.D. 410, 411, 412 (E.D.Pa. 1996) citing Celotex v. Catrett, supra, 477 U.S. at 325, 106 S.Ct. at 2553-54, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202; Williams v. Borough of West Chester, 891 F.2d 458, 460 (3rd Cir. 1989).


1. Plaintiff's claims under the Wiretapping and Electronic Surveillance Control Acts.

In Counts I and II of his complaint, Plaintiff invokes both the federal and state wiretapping control acts in claiming that Defendant unlawfully "intercepted, disclosed and/or used [his] wire and oral communications." The focus and purpose of the Wiretapping and Electronic Surveillance Control Acts is the protection of privacy and the language of these statutes is virtually identical. See: Commonwealth v. Parrella, 416 Pa. Super. 131, 137, 610 A.2d 1006, 1009 (1992). ...

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