United States District Court, M.D. Pennsylvania
E. Schwab United States Chief Magistrate Judge
case, we are compelled to determine whether recording a state
trooper's personal telephone conversations with his wife
violated federal wiretapping laws, when that trooper engaged
in those personal conversations while he was on duty and
using a telephone line at his state police barracks, which
automatically recorded the calls coming through that line.
For the reasons set forth below, we find that there was no
such violation and, thus, we will enter summary judgment in
favor of the defendants on the plaintiff's federal
wiretap act claim. In addition, we will decline to exercise
supplemental jurisdiction over the plaintiff's remaining
state-law claims, and we will, therefore, dismiss those
claims from this action, but without prejudice to the
plaintiff seeking relief in state court.
plaintiff, Corporal Darrin Ott (“Corporal Ott”),
alleges that while he was employed by the Pennsylvania State
Police and stationed at the barracks in Coudersport,
Pennsylvania, the defendants accessed, listened to, and
replayed recorded telephone conversations that he had with
his wife, while he was on duty and using a telephone line
located at the barrack's communications desk. Corporal
Ott, who asserts that he did not know this telephone line was
being recorded, further alleges that the defendants then
re-recorded and replayed these telephone conversations.
defendants contend, however, that they were reviewing the
recordings at the communications desk in an attempt to
identify the sender of an anonymous letter, which was
harassing in nature and sent to one of the defendants.
Corporal Ott acknowledges that during his telephone
conversations, he and his wife discussed, among other things,
the need to obtain an envelope. And so, Corporal Ott believes
that this discussion ultimately served as the basis of an
allegation that he and his wife were the ones involved in
sending the anonymous, harassing letter. But, as Corporal Ott
contends, this allegation not only proved to be unfounded,
but it also created a hostile work environment for him as it
eroded the trust and respect of those with whom he worked at
the Coudersport Barracks, as well as those stationed at the
other surrounding barracks.
result, Corporal Ott instituted this action pursuant to 42
U.S.C. § 1983 by filing a counseled complaint on April
23, 2014. Doc. 1. In his complaint, Corporal Ott
raises the following five counts: Count I, a violation of
Pennsylvania's wiretap law; Count II, a violation of the
federal wiretap law; Count III, a First Amendment retaliation
claim; Count IV, a Fourteenth Amendment procedural due
process claim; and finally, Count V, an intentional
infliction of emotional distress claim. Id. at
12-17. In addition, Corporal Ott names the following four
defendants, all of whom were also employed by the
Pennsylvania State Police and stationed at the barracks in
Coudersport, Pennsylvania during the relevant time period:
(1) Larry E. Goodwin, a Sergeant (“Sergeant
Goodwin”); (2) Chad E. Savannah, a trooper
(“Trooper Savannah”); (3) Neal R. Fausey, another
trooper (“Trooper Fausey”); and (4) Rhonda K.
Stimaker, a clerk typist (“Clerk
Stimaker”). Id. at 2. As for relief, Corporal
Ott seeks nominal, compensatory, and punitive damages, as
well as statutory attorney fees and costs. See Id.
response to the complaint, the Defendants filed an answer
(doc. 6), followed by a motion for partial judgment
on the pleadings (doc. 14). On February 24, 2016, we
granted in part and denied in part that motion. See doc.
35. More specifically, we granted the motion, but only
with respect to the First and Fourteenth Amendment claims,
and thus dismissed Counts III and IV from the complaint.
See id. Following our ruling, the parties engaged in
extensive discovery, seeking several extensions of time in
order to do so. See docs. 32, 34,
the heels of that discovery, the Defendants have filed a
motion for summary judgment pursuant to Rule 56 of the
Federal Rules of Civil procedure. See doc. 49. They
request that summary judgment be entered in their favor on
the surviving claims in the complaint-Count I, a violation of
Pennsylvania's wiretap law; Count II, a violation of the
federal wiretap law; and Count V, an intentional infliction
of emotional distress claim. See id. In concert with
their motion, they have also filed a statement of the
material facts, a supporting brief, and various exhibits.
See docs. 50, 51, 52.
response, Corporal Ott has filed an amended statement of the
material facts and an amended brief in opposition. See
docs. 65, 66; see also doc. 63
(containing our Order, identifying various deficiencies in
Corporal Ott's original filings and directing him to
comply with the Local Rules of this Court by amending those
filings). And the Defendants have since filed a
reply brief. See doc. 69.
the Defendants' motion for summary judgment, which has
been fully briefed, is ripe for our disposition. For the
reasons that follow, their motion will be granted.
Statement of Material Facts.
to the Local Rules for the U.S. District Court for the Middle
District of Pennsylvania, a party moving for summary judgment
must attach to the motion “a separate, short and
concise statement of the material facts, in numbered
paragraphs, as to which the moving party contends there is no
genuine issue to be tried.” M.D. Pa. L.R. 56.1. The
non-moving party is required to submit “a separate,
short and concise statement of the material facts, responding
to the numbered paragraphs set forth in [the moving
party's statement], as to which it is contended that
there exists a genuine issue to be tried.” Id.
Both statements must reference the record for support, and
the moving party's statement will be deemed admitted
unless controverted by the non-moving party. See id.
explained above, the Defendants, as the party moving for
summary judgment, have submitted a statement of the material
facts, supported by adequate references to the record.
See doc. 50. In response, Corporal Ott has submitted
an amended, responsive statement of the material facts.
Doc. 66. Thus, we set forth below the undisputed
material facts, as culled from the parties' statements.
Ott has been a member of the Pennsylvania State Police
(hereinafter, “PSP”) since 1993. Doc. 50
at ¶ 1; doc. 66 at 3. In 2012, the year that is
relevant to the allegations in the complaint, Corporal Ott
was a patrol unit supervisor at the PSP barracks in
Coudersport, which is in Troop F. Doc. 50 at ¶
2; doc. 66 at 3.
Goodwin was the station commander at the Coudersport Barracks
until his retirement on January 1, 2016. Doc. 50 at
¶ 3; doc. 66 at 3. As the station commander,
Sergeant Goodwin was responsible for oversight of all
personnel at the Coudersport Barracks, including Trooper
Savannah, Trooper Fausey, and Clerk Stimaker. See doc.
50 at ¶ 4; doc. 66 at 3.
the Troopers, Trooper Savannah was stationed at the
Coudersport Barracks from September of 2009 until March of
2013 (doc. 50 at ¶ 5; doc. 66 at 3),
and Trooper Fausey was stationed at the Coudersport Barracks
from November of 2010 until July of 2015 (doc. 50 at
¶ 6; doc. 66 at 3).
Clerk Stimaker has worked as “the clerk” at the
Coudersport Barracks since November of 2006. Doc. 50
at ¶ 7; doc. 66 at 3.
Background on the Recorded Telephone Lines.
Coudersport Barracks maintains a communications desk for the
purpose of, among other things, fielding calls from the
public. Doc. 50 at ¶ 25; doc. 66 at
¶ 25. There are two handheld telephones at the
communications desk, and calls coming through those
telephones are automatically recorded. See doc. 50
at ¶ 26; doc. 66 at ¶ 26. When using the
telephone lines at the communications desk, there are beeps
on the line, which indicate that the call is being recorded.
Doc. 50 at ¶ 27; doc. 66 at ¶ 27.
recordings from these telephones are saved on an Eventide
Machine, which is also located at the communications desk.
Doc. 50 at ¶ 28; doc. 66 at ¶ 28.
The log-in information, to access the recordings on the
Eventide, was displayed on the outside of that machine.
Doc. 50 at ¶ 29; doc. 66 at ¶ 29.
PSP personnel have had occasion in the past to review
recordings saved on the Eventide Machine in order to confirm
information conveyed by a caller, to finish writing reports,
and to play back a call simply because it is funny. Doc.
50 at ¶ 30; doc. 66 at ¶ 30.
Corporal Ott's Telephone Calls With His Wife.
March 16, 2012, while performing desk and communication
duties at the Coudersport Barracks, Corporal Ott used the
telephones at the communications desk to engage in multiple
conversations with his wife, Karen Ott (“Mrs.
Ott”). Doc. 50 at ¶ 31; doc. 66
at ¶ 31. During those conversations, Corporal Ott and
Mrs. Ott discussed, among other things, the need for a large
envelope. Doc. 50 at ¶ 32; doc. 66 at
¶ 32. They also discussed that it was important for this
envelope to be mailed before the Coudersport Post Office
closed the following day, Saturday, March 17, 2012. Doc.
50 at ¶ 32; doc. 66 at ¶ 32. These
telephone conversations were automatically recorded (doc.
50 at ¶ 33; doc. 66 at ¶ 33), and
they were saved on the Coudersport Barrack's Eventide
Machine (doc. 50 at ¶ 34; doc. 66 at
The Anonymous Letter.
on March 29, 2012, Clerk Stimaker received an anonymous
letter at her home, which suggested that the sender knew what
was going on with her and “Andy.” See doc.
50 at ¶¶ 8, 9; doc. 66 at ¶ 9.
The letter also made reference to the “barracks”
and asked what “the Sarge, ” presumably Sergeant
Goodwin, would think about their actions. See doc.
50 at ¶ 9; doc. 66 at ¶ 9. During her
deposition, Clerk Stimaker testified that she received this
letter after several hang-up calls and blocked calls had been
made to her home and cell phone, as well as to her
husband's workplace. Doc. 50 at ¶ 10
(citing doc. 51-7 at 14-15 (dep. 13:23-14:4)). And,
in the PSP Incident Report, Clerk Stimaker reported that
these calls continued even after receiving the anonymous
letter. See doc. 66 at ¶ 10 (citing doc.
66-3 at 3).
his deposition, Corporal Ott testified that other members of
the Coudersport Barracks had also been receiving hang-up
phone calls. Doc. 50 at ¶ 11 (citing doc.
51-3 at 31-32 (dep. 30:24-31:5)). Corporal Ott further
testified that Andy Mincer (“Mincer”), another
PSP trooper, had told him that his (Mincer's)
ex-girlfriend may have been the one responsible for making
these calls, stating that his ex-girlfriend was
“fucking with the guys.” Doc. 66 at
¶ 11 (quoting doc. 66-4 at 36 (dep. 36:17)).
Based on the record before us, both parties seem to
acknowledge that Mincer is probably the “Andy”
that was referenced in the anonymous letter to Clerk
The Report to Sergeant Goodwin.
following day, March 30, 2012, Clerk Stimaker had a day off,
but went into the Coudersport Barracks to discuss the
anonymous letter with Sergeant Goodwin. See doc.
50 at ¶ 12; doc. 60 at ¶ 12. Sergeant
Goodwin was working in his office when Clerk Stimaker first
showed him the letter. See doc. 50 at ¶ 13;
doc. 66 at ¶ 13. In regards to the contents of
the letter, Sergeant Goodwin testified at his deposition that
he had concern for the safety of his employee. Doc.
50 at ¶ 14; doc. 66 at ¶
Assistance from Trooper Savannah and Trooper Fausey in
Accessing the Recorded Telephone Conversations.
same day, March 30, 2012, Trooper Fausey was working the
communications desk. Doc. 50 at ¶ 17; doc.
66 at ¶ 17. Trooper Savannah was also on duty that
day. Doc. 50 at ¶ 18; doc. 66 at
¶ 18. Clerk Stimaker showed Trooper Fausey and Trooper
Savannah the anonymous letter, explaining that she believed
it had been sent to her by another trooper's
ex-girlfriend-presumably, Mincer's ex-girlfriend.
Doc. 50 at ¶ 19; doc. 66 at ¶
connection with these facts, the Defendants proffer that
Trooper Savannah and Trooper Fausey already knew that Clerk
Stimaker had also been receiving hang-up calls. Doc.
50 at ¶ 20. Although it appears that Trooper Fausey
had already known about these hang-up calls (doc.
51-6 at 17 (dep. 16:16-25)), it does not appear that
Trooper Savannah also knew, prior to March 30, 2012, that
Clerk Stimaker had been receiving such calls (doc.
66 at ¶ 20 (citing doc. 51-5 at 15-16
Clerk Stimaker enlisted the assistance of Trooper Fausey to
access the Eventide Machine in order to determine whether
Mincer's ex-girlfriend had called asking for her address
on March 16, 2012. Doc. 50 at ¶ 21; doc.
66 at ¶ 21. Clerk Stimaker believed that March 16,
2012, was the date to focus on because of the information
that she had received from Mincer. Doc. 50 at ¶
22; doc. 66 at ¶ 22; see also doc.
51-7 at 20 (dep. 19:1-10) (containing Clerk Stimaker's
deposition transcript, where she testifies that Trooper
Mincer had called her on March 16th, explaining that his
girlfriend or ex-girlfriend had called him and stated that
she was going to call Mincer and Clerk Stimaker's
sergeants and let those sergeants know about Mincer and Clerk
Fausey, however, did not know how to playback the recordings,
and so, he asked Trooper Savannah to do it. Doc. 50
at ¶ 23; doc. 66 at ¶ 23. Trooper
Savannah, using the posted instructions, was able to playback
the recordings from the Eventide Machine. Doc. 50 at
¶ 35; doc. 66 at ¶ 35.
Listening to ...