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Diana v. Oliphant

February 13, 2009

MARIO J. DIANA, PLAINTIFF,
v.
WILLARD OLIPHANT AND CARMEN ALTAVILLA, DEFENDANTS.



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM

Presently before the Court are Defendants Carmen Altavilla and Willard Oliphant's post-trial motions, including a renewed Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50, a Motion for a New Trial pursuant to Federal Rule of Civil Procedure Rule 59, or, in the alternative, a Motion for Remittitur. (Doc. 102.) For the reasons stated below, the Court will deny Defendants' renewed Motion for Judgment as a Matter of Law and their Motion for a New Trial. The Court will grant in part and deny in part their Motion for Remittitur.

BACKGROUND

Plaintiff in this case is Mario Diana. At the time of the events giving rise to his suit, Plaintiff was a Pennsylvania State Police ("PSP") trooper stationed at Tunkhannock police barracks, Troop P, Wyoming County. (Trial Tr. vol. 2, 83-84, Apr. 8, 2008.) Defendants are Carmen Altavilla, who at the relevant time was a PSP captain and troop commander of Troop P, and Willard Oliphant, then staff lieutenant of Troop P. (Trial Tr. vol. 1, 61, 63, Apr. 7, 2008.)

In January 2003, Plaintiff went on leave for a work-related injury. (Trial Tr. vol. 2, 84.)

He received Worker's Compensation as well as Heart and Lung benefits during his time on leave. (Id. at 85, 92.) On November 12, 2003, Defendant Altavilla received a "return to work order" for Plaintiff from Lieutenant Colonel Cynthia Transue, who directed him to have the order served on Plaintiff. (Trial Tr. vol. 1, 73-74, 76.) The captain signed the order, included November 22, 2003 as the date Plaintiff was to return to work, and directed a trooper to deliver it to Plaintiff. (Id. at 75-76.) On November 14, 2003 Plaintiff was personally served with the order, informing him that he must return to work or the PSP would seek to suspend his benefits. (Trial Tr. vol. 2, 89, 91-92.) The order also informed him to call Captain Altavilla, which he did the same day. (Trial Tr. vol. 1, 77.) Plaintiff was distressed because his doctor said he should not return to work at that time, as he was still injured. (Trial Tr. vol. 2, 93-94.) The captain asserts he told Plaintiff that he should have his doctor and lawyer contact the PSP personnel department to get the situation worked out. (Trial Tr. vol. 1, 81.) Some conflicting evidence suggests the captain told Plaintiff he did not have to return unless he told him to do so. (Trial Tr. vol. 2, 59-60.) Plaintiff also testified that the captain directed him to call back on Friday, November 21. (Id. at 100.)

On November 21, Plaintiff called the barracks and requested to speak with Defendant Altavilla. (Trial Tr. vol. 1, 79.) The captain was out that day, but when informed of Plaintiff's call by the troop administrative manager, he contacted Defendant Oliphant and directed him to return Plaintiff's call using one of the recorded telephone lines in the police barracks. (Id. at 79, 82.) Defendant Oliphant called Plaintiff and informed him that the order was still in effect and Plaintiff must return to work. (Trial Tr. vol. 2, 95.) Plaintiff maintains that he did not know the call was being recorded. (Id. at 96.) Defendants maintain that audible beeps were emitted on the recorded telephone line that would put Plaintiff on notice of the recording. (Id. at 72.)

Immediately after ending the call with Plaintiff, Defendant Oliphant contacted Ronald Zukosky, the troop's communication specialist, and requested he make a taped copy of the conversation. (Id. at 73.) While Zukosky was making the copy, another officer, Gerald Williams, overheard a portion of the call. (Id. at 8-9.) Williams then telephoned Plaintiff and informed him that his call with Defendant Oliphant had been recorded. (Id. at 10, 101.)

On November 11, 2005, Plaintiff filed a Complaint (Doc. 1) alleging violations of his rights under the First, Fourth, and Fourteenth Amendments to the U.S. Constitution as a result of the recorded call as well as claims under the Federal Communications Act (superceded by Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. ("Title III")) and Pennsylvania's Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. § 5701 et seq. ("Pennsylvania Wiretap Act"). Defendants moved to dismiss the Complaint. (Doc. 5.) The Court granted the motion with respect to the Fourteenth Amendment claim, interpreted the Federal Communications Act claim as stating a claim under Title III, and denied the motion as to all other claims. (Doc. 19.) On May 29, 2007, Defendants moved for partial summary judgment on Plaintiff's First and Fourth Amendment claims. (Doc. 28.) The Court denied the motion. (Doc. 38.) Defendants moved for reconsideration of the denial (Doc. 39), which the Court also denied (Doc. 48).

The case proceeded to trial in April 2008 on the four remaining claims. Defendants moved for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50 at the close of Plaintiff's case and again at the close of their case. At the close of Defendants' case, the Court granted their motion for judgment as a matter of law as to Plaintiff's First Amendment claim. The remaining three claims, under the Fourth Amendment, Title III, and the Pennsylvania Wiretap Act, were submitted to the jury. The jury found Defendants liable on each claim and awarded Plaintiff two hundred sixty-two thousand, one hundred twenty-six dollars ($262,126) in compensatory damages and two hundred thirty-eight thousand, eight hundred seventy-eight dollars ($238,878) in punitive damages. (Doc. 93.) In accordance with the jury's finding of liability on the Title III claim, the Court issued an Order awarding ten thousand dollars ($10,000) in statutory damages against each Defendant. (Doc. 95.) The Court entered judgments on the jury verdict and Order on April 17, 2008. (Doc. 96, 97.)

Following entry of judgment, Defendants filed the present post-trial motions, including a renewed motion for judgment as a matter of law and a motion for a new trial or, in the alternative, for remittitur. (Doc. 102.) These motions are fully briefed and ripe for disposition.

LEGAL STANDARDS

I. Rule 50(b)

Under Rule 50(b), a party may renew its request for a motion for judgment as a matter of law by filing a motion no more than ten (10) days after judgment is entered. Fed. R. Civ. P. 50(b). In the present case, Defendants' Rule 50(b) motion was timely filed. (Doc. 102.) Judgment notwithstanding the verdict should be granted sparingly. Walter v. Holiday Inns, Inc., 985 F.2d 1232, 1238 (3d Cir. 1993). In deciding whether to grant a Rule 50(b) motion: the trial court must view the evidence in the light most favorable to the non-moving party, and determine whether the record contains "the minimum quantum of evidence from which a jury might reasonably afford relief." The court may not weigh evidence, determine the credibility of witnesses or substitute its version of the facts for that of the jury. The court may, however, enter judgment notwithstanding the verdict if upon review of the record, it can be said as a matter of law that the verdict is not supported by legally sufficient evidence.

Parkway Garage, Inc. v. City of Philadelphia, 5 F.3d 685, 691-92 (3d Cir. 1993), abrogation on other grounds recognized by United Artists Theatre Circuit, Inc. v. Twp. of Warrington, Pa., 316 F.3d 392 (3d Cir. 2003) (citations omitted). A Rule 50 motion will be granted "only if, viewing the evidence in the light most favorable to the non-movant and giving [the non-movant] the advantage of every fair and reasonable inference, there is insufficient evidence from which a jury reasonably could find liability." Lightning Lube v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir.1993). The question is not whether there is literally no evidence supporting the non-moving party, but whether there is evidence upon which the jury could properly find for the non-moving party. See Walter, 985 F.2d at 1238(citing Patzig v. O'Neil, 577 F.2d 841, 846 (3d Cir. 1978)).

II. Rule 59(a)

Under Rule 59(a), motions for a new trial must be filed within ten (10) days of the date the judgment was entered. Fed. R. Civ. P. 59. Defendants' motion for a new trial was timely filed. (Doc. 102.) The decision to grant a new trial is left to the sound discretion of the trial judge. See Blackiston v. Johnson, No. 91-5111, 1995 U.S. Dist. LEXIS 13823, at *3 (E.D. Pa. Sept. 19, 1995), aff'd 91 F.3d 122 (3d Cir. 1996), cert. denied 519 U.S. 953 (1996). Courts have granted motions for a new trial where: (1) there is a significant error of law, to the prejudice of the moving party; (2) the verdict is against the weight of the evidence; (3) the size of the verdict is against the weight of the evidence; or (4) counsel engaged in improper conduct that had a prejudicial effect on the jury. Maylie v. Nat'l R. R. Passenger Corp., 791 F. Supp. 477, 480 (E.D. Pa.), aff'd 983 F.2d 1051 (3d Cir. 1992). Where the evidence is in conflict, and subject to two (2) or more interpretations, the trial judge should be reluctant to grant a new trial. Klein v. Hollings, 992 F.2d 1285, 1295 (3d Cir. 1993).

DISCUSSION

I. Renewed Motion for Judgment as a Matter of Law

A. Qualified Immunity

Defendants first argue in their renewed motion for judgment as a matter of law that they are entitled to qualified immunity with respect to Plaintiff's Fourth Amendment claim and Title III claim. "Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Determining whether qualified immunity applies is a two-step process: "First, the court must determine whether the facts alleged show that the defendant's conduct violated a constitutional or statutory right." Williams v. Bitner, 455 F.3d 186, 190 (3d Cir. 2006). Second, "the court must determine whether the constitutional or statutory right allegedly violated by the defendant was 'clearly established.'" Id.; see also Pearson v. Callahan, --- U.S. ---, 2009 U.S. LEXIS 591 (Jan. 21, 2009) (holding there is no mandatory sequence in applying the two steps). A right is clearly established when its meaning is "sufficiently clear that a reasonable official would understand what he is doing violates that right." Saucier v. Katz, 533 U.S. 194, 202 (2001).

As to Plaintiff's Fourth Amendment claim, Defendants admit that at the time of the November 21, 2003 call to Plaintiff a clearly established rule existed that the surreptitious interception of a private telephone conversation without a warrant violates the Fourth Amendment, absent some exception to the warrant requirement. This rule was established under Katz v. United States, 389 U.S. 347 (1979). However, Defendants argue that Title III contains an exception to the warrant requirement via 18 U.S.C. § 2510(5)(a)(iii), which excludes telephone conversations recorded in the ordinary course of a law enforcement officer's duties from liability under Title III.*fn1

The Court does not agree with Defendants' argument. The Katz court held that the interception of electronic communications is a search subject to the Fourth Amendment's warrant requirement. Katz, 389 U.S. at 353. It then observed that, under the warrant requirement, warrantless searches violate the Fourth Amendment unless they fall within "a few specifically established and well-delineated exceptions." Id. at 357. The warrant exceptions specifically cited, id. at 357-58, refer to those constitutionally-required exceptions developed by the Court under its Fourth Amendment jurisprudence, such as a search incident to arrest, see Agnello v. United States, 269 U.S. 20 (1925), "hot pursuit," see Warden v. Hayden, 387 U.S. 294 (1967), and a search conducted with consent, see Zap v. United States, 328 U.S. 624 (1946). Additionally, the Katz court reasoned that such exceptions were unlikely to apply to electronic surveillance, as such a search involved no physical trespass and depends, by nature, on lack of notice.

Title III's law enforcement exception does not constitute an exception to the constitutional warrant requirement. It is not an exception under the Fourth Amendment itself, but rather an exception to the statutory definition of a wiretap that is subject to the requirements and liabilities of Title III. A recording exempted under § 2510(5)(a)(iii) is still subject to the constraints of the Fourth Amendment. Indeed, given that the legislative history of Title III evidences a strong congressional intent to create protections for privacy, it would be incongruous to conclude that Congress intended to diminish the protections of the Fourth Amendment's warrant requirement. See Gelbard v. United States, 408 U.S. 41, 48, 50 n. 7 (quoting from legislative history for proposition that Title III's purpose was to provide new protections for privacy by creating uniform federal standards for electronic surveillance by law enforcement).

Consequently, the Court does not agree with Defendants' argument that reasonable officers in their position, by relying on the law enforcement exception to Title III, would not have known they were violating the constitutional right established in Katz. Falling within the statutory exception signifies that one is exempted from civil or criminal liability under Title III. It does not mean that one is not constrained by the Fourth Amendment prohibition on warrantless searches.

As to Plaintiff's Title III claim, the Court will not consider this argument because it was not raised in Defendants' Rule 50(a) motion for judgment as a matter of law at trial. It is settled law in the Third Circuit that a post-trial Rule 50 motion can only be made on grounds specifically advanced in the party's pre-verdict Rule 50 motion. Kutner Buick, Inc. v. Am. Motors Corp., 868 F.2d 614, 617 (3d Cir. 1989); see also Fed. R. Civ. P. 50 advisory committee's notes, 2006 amendments ("Because the Rule 50(b) motion is only a renewal of the preverdict motion, it can be granted only on grounds advanced in the preverdict motion.").

B. State Wiretapping Claim

Defendants argue they are entitled to judgment as a matter of law with respect to Plaintiff's state law claim because their actions fell within an exception to the Pennsylvania Wiretap Statute. Again, because this argument was not advanced in Defendants' pre-verdict Rule 50 motion, the Court will not consider it in this motion.

C. Federal Wiretapping Claim

Defendants argue they are entitled to judgment as a matter of law with respect to Plaintiff's Title III claim because their actions fell within the law enforcement exception. They argue they offered overwhelming evidence that Defendant's Oliphant's call to Plaintiff regarding a work-related matter on a recorded line was done in the ordinary course of Defendants' law enforcement duties.

However, the Court instructed the jury on the law enforcement exception, specifically noting that a telephone used by a law enforcement officer in the ordinary course of his duties is not a wiretap under Title III. (Trial Tr. vol. 4, 110, Apr. 10, 2008.) The Court further instructed the jury that the term "ordinary" was not limited to investigations, but included non-investigatory duties. (Id. at 111.) Finally, the Court instructed the jury that if it found the call to Plaintiff was made in the ordinary course of Defendants' duties, it must find for them on the Title III claim. (Id.) The jury instead found for the Plaintiff, rejecting Defendants' evidence that they acted in the ordinary course of their duties.

Plaintiff presented sufficient evidence to support the jury's finding. Defendants presented evidence that the recorded lines in the police barracks were sometimes used by troopers (calling both in and out) for administrative purposes such as requesting personal/sick days or covering shifts. However, Plaintiff testified that it was common practice for one officer to inform another if the originator called from a recorded line and that he received no such notification from Defendant Oliphant. (Trial Tr. vol. 2, 96-98.) Further, Plaintiff's counsel cross examined Defendant Oliphant on the PSP communications manual in an effort to establish that Oliphant's use was not consistent with the policies and procedures expressed therein on recording and accessing recorded calls. (Id. at 78-80.) Additionally, Plaintiff presented evidence that the call was made in order to gather information regarding Plaintiff's Worker's Compensation claim and that its recording for that purpose was improper because neither Defendant had responsibility for investigating such claims. To this end, he presented testimony by Joseph Plant, then-current union president for Plaintiff's troop, that Altavilla said he was instructed to make the call by someone in Harrisburg, likely a representative of the human resources office. (Trial Tr. vol. 1, 124.)

Viewing the evidence in the light most favorable to Plaintiff and giving him the advantage of all reasonable inferences, the jury could reasonably conclude from evidence presented by Plaintiff that the recording was not ordered or carried out in the ordinary course of Defendants' duties. The jury could reasonably have found it credible that Altavilla was motivated to gather information regarding Plaintiff's worker's compensation claim, and thus did not have an "ordinary" reason for the call. It reasonably could have inferred from evidence regarding the manner of the call, its recording, and its copying thereafter, that it was not recorded in an "ordinary" fashion or for an "ordinary" purpose. Because there is legally sufficient evidence to support the jury's finding that the law enforcement exception did not apply to Defendants' conduct, the Court will deny Defendants' renewed motion for judgment as a matter of law on this ground.

II. Motion for a New Trial or Remittitur

A. Re-Cross of Plaintiff

Defendants argue that a new trial should be granted because the Court did not allow a re-cross examination of Plaintiff on what they argue was a critical issue. On cross examination of Plaintiff, Defendants' counsel inquired about his knowledge of the device used to play beeps on the recorded telephone lines at the police barracks. The following colloquy took place:

Q: Now, do you know anything about the beep box that is utilized to put the beeps on the tape communication lines at the state police?

A: You mean the way the system works or how the device works or -

Q: Do you know anything about it?

A: I know there's a little black box about the size of, I would say, a pack of Wood's matches that's attached to the line. And the lines are just plugged in both sides.

Q: It's my understanding that you knew about this box because you worked desk; is that correct?

A: Yes, ma'am.

Q: Okay. And would you have known about the beep box if the beep box hadn't needed to be repaired on occasion?

A: (no audible response.)

Q: Isn't that what you testified in your deposition?

A: Yes, I saw repair. You can visibly see the box.

Q: Had you hadn't it seen it repaired, isn't it - - wasn't it your testimony in the deposition that you wouldn't ...


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