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For the alleged victims of an illegal secret recording device, the statute of limitations on their claim under Pennsylvania’s wiretap law may not begin to run until someone involved in the scheme is either caught or confesses, a federal judge has ruled. “Absent someone involved in the scheme revealing the activity … or being caught in the act … there would be no way for plaintiffs to know that their conversations were being recorded in violation of their rights,” U.S. District Judge James Knoll Gardner wrote in his 39-page opinion in Care v. The Reading Hospital and Medical Center. Although the Pennsylvania Supreme Court has so far applied the “discovery rule” to toll the statute of limitations only in personal injury and property cases, Gardner predicted that the court would also do so in the context of a wiretap or invasion of privacy claim. As a result, Gardner refused to dismiss claims under the Pennsylvania Wiretapping and Electronic Surveillance Control Act brought by a group of hospital workers who claim they were secretly recorded by hospital officials when they held “shop meetings” to discuss the possibility of joining a union. But Gardner also concluded that the ultimate question of whether the workers are entitled to the protections of the discovery rule must be decided by a jury because it will turn on the factual question of when they “knew, or with the exercise of diligence, should have known” about the alleged illegal recordings. As a result, Gardner said that he did not yet need to decide the dispute over whether Pennsylvania’s wiretap law is governed by a two-year or a six-year statute of limitations because, if the jury concludes that the discovery rule applies, it would make no difference. The plaintiffs in the suit are seven employees in Reading Hospital’s engineering department who claim that their conversations had been regularly recorded since sometime prior to 1997 but that they didn’t learn of the alleged scheme until October 2002 when it was publicly revealed that the hospital’s former maintenance manager gave a confession to police about the incidents. According to the suit, the last illegal recording occurred in January 2002 when workers discovered a tape recorder after a “confidential” meeting with a labor consultant. Several workers filed a criminal complaint, the suit says, and West Reading police executed a search warrant and seized the tape and the recording device. Soon after, the suit says, Mark Balatgek, who at the time was the hospital’s maintenance manager, gave a formal statement to police in which he said that he had been told to record the meeting by Jakob Olree, the hospital’s director of facilities management. Balatgek also said in the statement that he had been told by a management-level employee that Olree and Paul McCoy, the hospital’s chief engineer until his retirement in 1997, had often performed the same type of surveillance in the past. But the workers say they didn’t learn of the contents of Balatgek’s statement until it was made public in October 2002 at his arraignment. In a motion to dismiss the suit, the hospital’s lawyer, Vincent Candiello of the Harrisburg office of Morgan Lewis & Bockius, argued that all of the plaintiffs’ claims of invasion of privacy were barred by a one-year statute of limitations and that most of their wiretap claims were barred by a two-year statute. But plaintiffs’ attorneys Rick Long of Kozloff Stoudt in Reading and Simon Grill, also of Reading, argued that the workers had no way of knowing until October 2002, when Balatgek’s confession was made public, that there had been a continuing scheme to record their conversations dating to before 1997. Gardner found that the Pennsylvania Supreme Court’s leading case on the discovery rule, the 1983 decision in Pocono International Raceway Inc. v. Pocono Produce Inc., approved the use of the discovery rule in two contexts — so-called subsurface injuries, in which a landowner discovers that a defendant has removed coal from under his land, and medical malpractice cases involving failure of a surgeon to remove an implement of surgery. “We are unaware of any appellate decision from either the Supreme Court of Pennsylvania or any Pennsylvania intermediate appellate court where the discovery rule has been applied to either a cause of action for invasion of privacy or to a violation of the Wiretap Act,” Gardner wrote. Forced to predict Pennsylvania law, Gardner concluded that “the Supreme Court of Pennsylvania would permit the application of the discovery rule to either a cause of action for invasion of privacy or pursuant to the Wiretap Act.” Allegations of “surreptitious recording of conversations … constitute the type of conduct that belies easy detection,” Gardner wrote. “We find this type of conduct analogous to the causes of action where the discovery rule has been traditionally applied,” Gardner wrote. Gardner concluded that the workers “would have had no reason to believe that agents of their employer were secretly recording their conversations in the workplace. “Thus, it would not be until someone was caught perpetrating this activity or admitted such conduct, that plaintiffs would have any reason to know, or in the exercise of due diligence have reason to believe, that such conduct was occurring,” the judge wrote. If a jury decides that the workers could not have known about their causes of action until October 2002, Gardner said, “then we would not have to decide whether a two-year or six-year statute of limitations applies to plaintiffs’ cause of action pursuant to the Wiretap Act.” But Gardner said he would decide the dispute if the jury decides that the workers should have known earlier of the existence of their claims. “It will be for the jury to determine what date — either January 22, 2002 (discovery of a tape recorder in defendant Balatgek’s locker), October 10, 2002 (when the plaintiffs allegedly first came into possession of Balatgek’s statement to the police), or some date in between — that plaintiffs first discovered the basis for their claims for invasion of privacy and for violations of … the Wiretap Act,” Gardner wrote.

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