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John P. Karoly, Jr v. Michael Mancuso

April 24, 2013

JOHN P. KAROLY, JR., APPELLANT
v.
MICHAEL MANCUSO, ESQUIRE, ASSISTANT DISTRICT ATTORNEY AND ERIC KERCHNER, DETECTIVE AND CHRISTOPHER JONES, ESQUIRE, ASSISTANT DISTRICT ATTORNEY, APPELLEES



Appeal from the Order of the Commonwealth Court at No. 622 MD 2005, dated April 3, 2012

The opinion of the court was delivered by: Mr. Justice Saylor

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, MCCAFFERY, ORIE MELVIN, JJ.

SUBMITTED: April 22, 2013

OPINION

In this direct appeal involving alleged intentional violations of the Wiretap Act, we consider whether the Commonwealth Court erred in granting a defense motion for summary judgment.

I. Background

Pennsylvania's Wiretapping and Electronic Surveillance Control Act (the "Wiretap Act," or the "Act") *fn1 is designed to protect individual privacy while also giving law enforcement authorities a tool to combat crime. The statute generally prohibits intercepting, using, or disclosing private communications except pursuant to specified procedures. See, e.g., 18 Pa.C.S. §5708 (pertaining to court orders authorizing interceptions). The Act does, however, allow county correctional facilities to monitor and record inmate phone calls without any specific prior authorization, so long as inmates are notified in writing and anyone calling into the facility is also told that his call may be monitored and recorded. See 18 Pa.C.S. §5704(14). Such facilities may divulge the recordings only as necessary to safeguard the facility, in response to a court order, or in the prosecution or investigation of a crime. See id. §5704(14)(i)(C). As a means of "safeguard[ing] the attorney-client privilege," however, the correctional facilities may not "intercept, record, monitor or divulge any conversation between an inmate and an attorney." Id. §5704(14)(ii).

In addition to its criminal provisions, the Wiretap Act authorizes civil sanctions when its restrictions are intentionally violated. In particular, the Act creates a private cause of action as follows:

§ 5726. Action for removal from office or employment

(a) Cause of action.--Any aggrieved person shall have the right to bring an action in Commonwealth Court against any investigative or law enforcement officer, public official or public employee seeking the officer's, official's or employee's removal from office or employment on the grounds that the officer, official or employee has intentionally violated the provisions of this chapter. If the court shall conclude that such officer, official or employee has in fact intentionally violated the provisions of this chapter, the court shall order the dismissal or removal from office of said officer, official or employee.

(b) Defense.--It is a defense to an action brought pursuant to subsection

(a) that the actor acted in good faith reliance on a court order or the provisions of this chapter.

18 Pa.C.S. §5726.

In 2005, Monroe County Detective Eric Kerchner and First Assistant District Attorney Michael Mancuso (Appellees) were investigating and prosecuting Dennis Slayton for theft and drug-related offenses, as well as his paramour Jill Goldstein in connection with the drug offenses. Appellant John P. Karoly, Jr., Esq., was acting as Slayton's attorney during this time. Appellant also represented Goldstein in June 2005 at her preliminary hearing, at which Detective Kerchner testified. On October 3, 2005, Goldstein appeared at a bail revocation hearing represented by Eric Dowdle, Esq. At the conclusion, bail was revoked and Goldstein was placed in custody at the Monroe County Correctional Facility (the "MCCF"). The next day, October 4, 2005, Goldstein called Slayton from the jail. During the conversation, Appellant, who was with Slayton, began speaking with Goldstein. The MCCF recorded the conversation.

During its ongoing criminal investigation, the Monroe County district attorney's office formed a belief that Goldstein was communicating from the jail with Slayton, and that obtaining these conversations could aid the investigation. Accordingly, it applied to the common pleas court for an order instructing the MCCF to disclose Goldstein's recorded telephone conversations. On October 14, 2005, the court issued an order directing the MCCF to furnish such recordings. The order stated that the disclosure application and the order itself were to remain sealed. Thus, it directed the MCCF not to reveal the existence of either document.

Based on the order, Detective Kerchner obtained recordings from the MCCF, which included the October 4th conversation between Slayton, Goldstein, and Appellant. The detective played these tapes for members of the district attorney's office. After hearing the tapes, ADA Mancuso filed, in the criminal case against Slayton, a Motion to Compel and Disqualify Counsel ("Motion to Disqualify"), requesting that Appellant be disqualified from further representing Slayton. The request was predicated on an alleged conflict of interest, as well as Appellant's alleged refusal to tell the authorities where Slayton was hiding.*fn2 The motion also requested that Appellant be compelled to furnish any information he had concerning Slayton's whereabouts. Its averments included an excerpt of a transcript of the October 4th telephone call, in which Appellant discusses the difficulties that might attend his simultaneous representation of Goldstein and Slayton. In the excerpt, Appellant eventually explains to Goldstein that he does not wish to be disqualified due to a perception that he is representing both individuals, and states that "I can direct your case through Eric while I'm doing [Slayton's], okay?" See Motion to Disqualify, at ΒΆ8, reproduced in R.R. 43-44. The Commonwealth's brief ...


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