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Civil liability cannot be established under Pennsylvania’s Wiretap Act unless the plaintiff can prove that the defendant intentionally violated the act, an Eastern District of Pennsylvania judge has ruled in a case of first impression. Such intent may be proved under the preponderance of the evidence standard, which is less strict than the reasonable doubt standard used to prove criminal liability, the federal judge said. In Kline v. Security Guards Inc., Judge Franklin S. Van Antwerpen also found that strict civil liability follows a criminal conviction under the act. Attorney Joseph Roda of Roda & Nast in Lancaster, Pa., represented the plaintiffs, Daulph and Terry Kline. Scott L. Vernick of Fox Rothschild O’Brien & Frankel in Philadelphia represented defendant Pennsylvania-based Security Guards Inc., and Philadelphia attorney Scott A. Mayer represented defendant Ohio-based Dana Corp. Van Antwerpen granted the defendants’ motion for partial summary judgment, concluding the plaintiffs did not meet their standard of proof regarding intent. The plaintiffs sued SGI and Dana claiming the defendants unlawfully intercepted oral communications via electronic surveillance over a three-month period, in violation of the Wiretap Act. The Klines alleged oral communications of employees and others had been intercepted in the employee entrance to the heavy truck division of Dana. The defendants filed a motion for partial summary judgment, arguing the plaintiffs had not met the required level of intent for a finding of civil liability under the act. For civil liability to attach, they argued, the court would have to find that they intentionally violated the act. There was some discussion as to whether the decision before the court was for summary judgment or a decision in limine, but Van Antwerpen said that ultimately was not important. Van Antwerpen said even though the question regarding the Wiretap Act involved a state statute, the case was in federal court because the parties’ labor dispute was governed by the National Labor Relations Act. As such, he said, state law applied. At the center of the case was the state supreme court’s 1991 decision in Boettger v. Loverro, in which the justices said of the Wiretap Act: “Strict liability in a civil action for unlawful interception, disclosure or use is provided.” As Van Antwerpen pointed out, the high court made that statement “without elaboration.” The parties’ arguments hinged on the phrase “strict liability.” Dana claimed that on the basis of the Boettger decision, strict liability accrues for illegal conduct, but under the Wiretap Act, that conduct must be intentional. SGI argued the strict liability comment was dicta. Van Antwerpen said both defendants were correct. He said the issue the court decided was one of good faith, but continued: “We also believe that what the court was saying was that strict liability would follow a criminal conviction, or civil proof of an intentional violation of the act.” Section 5725 of the act states that any person whose wire, electronic or oral communication is intercepted in violation of the act has a civil cause of action. The plaintiffs argued that an earlier version of the statute uses the word “intentional,” but the current statute does not. They said the Legislature has amended the statute nine times, giving it “ample opportunity” to provide an intent provision if it wanted to. But Van Antwerpen said the plaintiffs “read too much” into the omission. “While it is true that Pennsylvania has never added an ‘intent requirement’ to the text of Section 5725, the state has also never added a clause mentioning strict liability,” he said. “Thus, in order for strict liability to apply, the standard would have to be a default standard, or be the standard enumerated in another section of the Wiretap Act, meant to apply to Section 5725 regarding civil liability.” The plaintiffs’ argument involved too much of a vague interpretation of the act, Van Antwerpen said, as the language of a statute must speak for itself. The judge also highlighted the fact that Pennsylvania law only provides for strict liability in very limited circumstances. Strict liability under the Wiretap Act would lead to “untenable conclusions,” Van Antwerpen said. Wiretaps are legal and necessary in certain situations and for certain entities, like law enforcement agencies, phone companies and telemarketing companies, he said. “Without a doubt, privacy must be protected. But if the statute created strict civil liability by default, without any unlawful intent, law enforcement, common communication carriers and many others would be subjected to a slough of litigation for every mistake or accident under the act,” Van Antwerpen said. The plaintiffs said the court should compare Pennsylvania’s statute with New Jersey’s version of the act. According to the legislative history of the Pennsylvania act, the original bill’s sponsor said most of the bill’s provisions were modeled after New Jersey’s act. Van Antwerpen said one New Jersey case was more on point that any from Pennsylvania. The 1994 New Jersey Superior Court case Scott v. Scott involved a wife arguing that her estranged husband violated New Jersey’s Wiretap Act. The husband argued that because he was intoxicated when the alleged violation occurred, he was unable to form the requisite intent for civil liability to attach. The New Jersey court found that the husband did need a mental state of intent to be liable civilly and that he was indeed in that state at the time of his actions. New Jersey patterned its act after the federal Wiretap Act, so Van Antwerpen said it was appropriate for him to also look to the federal statute. Under the federal Wiretap Act, a plaintiff can bring a civil suit without an underlying criminal conviction for wiretapping, but he or she must prove each element of the underlying criminal offense. The Pennsylvania Supreme Court has similarly found that the act allows civil liability without a prior criminal conviction in Marks v. Bell Telephone Co. As Van Antwerpen explained, criminal liability requires proof of the defendant’s guilt beyond a reasonable doubt as to each element. For civil liability to attach, on the other hand, each element must be proved by a preponderance of the evidence. “Therefore, it is possible for a Wiretap Act plaintiff to recover civil damages applying the preponderance of the evidence standard to the question of whether a defendant acted intentionally — even though the defendants are acquitted or not charged criminally under the same statute,” Van Antwerpen said. However, the converse could not be true, Van Antwerpen said, so a defendant could not be convicted criminally but free from civil liability under the Wiretap Act. “If a defendant was convicted of violating the Wiretap Act, it would automatically be liable for civil damages under the lighter preponderance of the evidence standard,” he said. “We believe that what the [ Boettger] court meant when they referred to strict liability was strict, or automatic civil liability for defendants convicted of violating the Wiretap Act,” Van Antwerpen said.

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