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CARE v. THE READING HOSPITAL AND MEDICAL CENTER

March 31, 2004.

HAROLD L. CARE; LAWRENCE CLAAR; TREANTAFFELO KARAHALIAS; MICHAEL KLINE; GORDON KONEMANN; FRANCIS A. ROSSI; and LEE G. SMITH, Plaintiffs
v.
THE READING HOSPITAL AND MEDICAL CENTER; JAKOB (JAPP) OLREE, Individually, and in His Capacity as Director of Facilities Management for The Reading Hospital and Medical Center, Inc.; MICHAEL FORBES, Individually, and in His Capacity as Assistant Director of Facilities Management for The Reading Hospital and Medical Center, Inc.; MARK BALATGEK, Individually, and in His Capacity as Maintenance Manager for The Reading Hospital and Medical Center, Inc.; RICHARD MABLE, Individually, and in His Capacity as Vice President of the Engineering Department for The Reading Hospital and Medical Center, Inc.; PAUL McCOY, Individually, and in His Capacity as the Former Chief Engineer for The Reading Hospital and Medical Center, Inc.; and JOHN AND JANE DOES 1 Through 20, Individually and in Their Capacities as Employees of The Reading Hospital and Medical Center, Inc., Defendants



The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge

OPINION

INTRODUCTION

  This matter is before the court on The Reading Hospital and Medical Center, Inc.'s, Jakob Olree's, Michael Forbes', Richard Mable's and Paul McCoy's Motion to Dismiss, which motion was filed July 21, 2003. Plaintiff's Answer to Motion to Dismiss of Defendants Reading Hospital and Medical Center, Inc., Jakob Olree, Michael Forbes, Richard Mable and Page 2 Paul McCoy was filed August 1, 2003. The Reading Hospital and Medical Center, Inc.'s, Jakob Olree's, Michael Forbes', Richard Mable's and Paul McCoy's Reply Memorandum in Support of their Motion to Dismiss was filed October 6, 2003. For the reasons expressed below, we grant in part and deny in part defendants' motion to dismiss.

  Specifically, we deny defendants' motion to dismiss Counts I through VII and a portion of Count XIII of Plaintiffs' Complaint alleging invasion of privacy relating to incidents occurring prior to January 22, 2002. We grant defendants' motion to dismiss Counts X, XI, XII, XIV, XV, XVI, XVII and that portion of Count XIII alleging the January 22, 2002 incident involving invasion of privacy.

  JURISDICTION

  Jurisdiction is based upon federal question jurisdiction pursuant to 28 U.S.C. __ 1331 and 1441(b). Venue is proper pursuant to 28 U.S.C. ___ 1391(b) because the events giving rise to plaintiffs' claims allegedly occurred in this judicial district, namely, Berks County, Pennsylvania.

  BACKGROUND

  On June 16, 2003 Plaintiffs' Complaint ("Complaint") was filed in the Court of Common Pleas of Berks County, Page 3 Pennsylvania. The Complaint alleges multiple violations of the Pennsylvania Wire Tapping and Electronic Surveillance Control Act ("Wiretap Act")*fn1 (Counts I, II, III, V, VI, and VIII) and Title III of the Omnibus Crime Control and Safe Streets Act of 1968 ("Title III")*fn2 (Counts IV, VII and IX), as well as state law claims for civil conspiracy (Counts X, XI and XII), invasion of privacy (Count XIII), negligent supervision (Counts XIV, XV and XVI) and respondeat superior liability (Count XVII). On July 14, 2003 defendant The Reading Hospital and Medical Center together with individual defendants Jakob (Japp) Olree, Michael Forbes, Richard Mable and Paul McCoy, with the concurrence of defendant Mark Balatgek,*fn3 removed this action to this court.*fn4 Plaintiffs have Page 4 not contested removal.

  PLAINTIFFS' COMPLAINT

  Based upon the allegations in Plaintiffs' Complaint and the exhibit attached thereto, which we must accept as true for purposes of this motion, the operative facts are as follows.

  Plaintiffs Harold L. Care, Lawrence Claar, Treantaffelo Karahalias, Michael Kline, Gorden Konemann, Francis A. Rossi and Lee G. Smith are each employees of defendant The Reading Hospital and Medical Center ("RHMC") and worked in its engineering department.

  Defendant Richard Mable is the Vice-President of the Engineering Department for RHMC. Defendant Jakob Olree is the Director of Facilities Management for RHMC and reported to defendant Mable. Defendant Michael Forbes is the Assistant Director of Facilities Management for RHMC and reported to defendant Olree. Defendant Mark Balatgek was the former Maintenance Manager for RHMC and oversaw certain day and night shift supervisors. Finally, defendant Paul McCoy was the Chief Engineer for RHMC until his retirement in 1997.

  Since prior to defendant McCoy's retirement in 1997 there have been allegedly unlawful interceptions of plaintiffs' oral communications by one or more of the Page 5 defendants. The last such interception occurred on January 22, 2002 during a meeting conducted by labor/management consultant Sue McQuen and the Engineering Department employees, which included plaintiffs.

  On January 22, 2002 plaintiffs found a tape recorder in defendant Balatgek's locker. One of the employees (not a plaintiff) telephoned defendant Olree to report the finding of the tape recorder. Shortly thereafter defendants Olree, Forbes and Mable, together with defendant Balatgek and the hospital security supervisor Michael Resch, arrived at the meeting location and retrieved the tape recorder and tape; and defendant Mable took possession of the items.

  Several employees, including all plaintiffs, filed a criminal complaint in West Reading, Berks County, Pennsylvania. On January 24, 2002 West Reading police executed a search warrant and seized the tape and recording device. Thereafter, on January 25, 2002 defendant Balatgek gave a formal Statement to police.

  Plaintiffs contend that the meeting with the labor/management consultant was supposed to be confidential. Specifically, they contend that while the consultant was going to report back to management certain concerns raised by the employees, the names of the employees expressing concerns Page 6 would be kept confidential.

  Moreover, in his Statement to the West Reading police, defendant Balatgek stated that he had been told by a management level employee, Rich Pavanarias, that defendants Olree and McCoy had performed this type of surveillance of employees often in the past and that defendant Olree had in the past specifically asked Balatgek to do this. Thus, Plaintiffs' Complaint asserts that the alleged interception of oral communications was a continuing course of conduct by defendants.

  STANDARD OF REVIEW

  A Rule 12(b)(6) motion to dismiss examines the sufficiency of the Complaint. Conley v. Gibson, 355 U.S. 41, 45, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). In determining the sufficiency of the Complaint the court must accept all plaintiffs' well-pled factual allegations as true and draw all reasonable inferences there from in favor of plaintiffs. Graves v. Lowery, 117 F.3d 723, 726 (3d Cir. 1997).

  [T]he Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he Page 7 bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.

 Conley, 355 U.S. at 47, 78 S.Ct. at 103, 2 L.Ed.2d at 85. (Internal footnote omitted.) Thus, a court should not grant a motion to dismiss unless it appears beyond a doubt that the plaintiffs can prove no set of facts in support of his claim which would entitle them to relief. Graves, 117 F.3d at 726 citing Conley, 355 U.S. at 45-46, 78 S.Ct. at 102, 2 L.Ed.2d at 84.

  In deciding motions to dismiss pursuant to Rule 12(b)(6), courts generally consider only the allegations in the Complaint, exhibits attached to the Complaint, matters of public record, and documents that form the basis of the claim.

  Lum v. Bank of America, No. 01-4348, 2004 U.S. App. LEXIS 4637 at *9, n.3 (3d Cir. Mar. 11, 2004).

  DISCUSSION

  Statute of Limitations Page 8

  Initially, defendants assert that certain of plaintiffs' claims are barred by the statute of limitations. Specifically, defendants contend that plaintiffs' claims for invasion of privacy are governed by a one-year statute of limitations.*fn5 Defendants aver that the most recent allegations of invasion of privacy occurred on January 22, 2002; and plaintiffs did not file their Complaint until June 16, 2003, more than one year later. Thus, defendants argue that the statute of limitations on this incident has expired and that Count XIII of Plaintiffs' Complaint should be dismissed.

  Moreover, defendants assert that plaintiffs' claim for conspiracy to invade their right to privacy is also time-barred because the time period for the statute of limitations on a conspiracy is controlled by the substantive offense alleged to be the object of the conspiracy. Defendants rely on Chappelle v. Case, 487 F. Supp. 843 (E.D. Pa. 1980) for this proposition.

  Defendants cite McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 2000) for the proposition that absent a civil cause of action for a particular act, there can Page 9 be no cause of action for civil conspiracy. Hence, defendants assert that because plaintiffs' underlying cause of action for invasion of privacy is time-barred, any conspiracy to commit that offense is also time-barred. Thus, defendants contend that Count XII of Plaintiffs' Complaint must be dismissed.

  Next, defendants assert that all claims for unlawful interception, attempted interception, or procuring under either the Pennsylvania Wiretap Act or Title III occurring prior to June 16, 2001 should be dismissed because they are outside the two-year statute of limitations for such actions. Specifically, defendants assert that Pennsylvania law provides a two-year statute of limitations for all other intentional or negligent wrongs pursuant to 42 Pa. C.S.A. _ 5524. Moreover, in Bristow v. Clevenger, 80 F. Supp.2d 421 (M.D. Pa. 2000) United States District Judge Sylvia H. Rambo determined that the two-year statute of limitations applied to a Wiretap Act cause of action.

  Finally, defendants assert that there is a two-year statute of limitations pursuant to Title III.*fn6 Defendants aver that because plaintiffs did not file this action until June 2003, any alleged violations of Title III prior to June 2001 are time-barred. Thus, defendants assert that the Page 10 statute of limitations bars all claims contained in Counts I through ...


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