The opinion of the court was delivered by: JAMES KNOLL GARDNER, District Judge
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
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 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.
On June 16, 2003 Plaintiffs' Complaint ("Complaint") was filed in
the Court of Common Pleas of Berks County,
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
not contested removal.
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
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
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.
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
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
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).
Statute of Limitations
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
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
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
statute of limitations bars all claims contained in Counts I through ...