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Workers who claim their conversations were illegally recorded by management have the right to sue for invasion of privacy because a claim under that tort is not barred by the exclusivity provisions of the Pennsylvania Workers’ Compensation Act, a federal judge has ruled. In his 16-page opinion in Care v. The Reading Hospital and Medical Center, U.S. District Judge James Knoll Gardner found that a trio of cases from the Pennsylvania Superior Court provided “compelling and persuasive authority for the proposition that the tort of invasion of privacy falls outside the WCA bar.” As a result, Gardner refused to reconsider a decision handed down last year in which he rejected a defense motion to dismiss the invasion of privacy claim. The plaintiffs in the suit are seven employees in Reading Hospital’s engineering department who claim that their conversations were regularly recorded when they held “shop meetings” to discuss the possibility of joining a union. The suit alleges that the plaintiffs’ conversations were illegally 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 had given 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. 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. 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 March 2004 decision, Gardner rejected a defense motion to dismiss some of the wiretap claims on statute of limitations grounds. Applying the discovery rule, Gardner concluded that the statute of limitations on a claim under Pennsylvania’s wiretap law may not begin to run until someone involved in the scheme is either caught or confesses. “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,” Gardner wrote. 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. In a motion for reconsideration, defense attorney Vincent Candiello of Morgan Lewis & Bockius focused only on the plaintiffs’ claim of invasion of privacy. Candiello argued that Gardner had applied the Workers’ Compensation Act bar in dismissing the plaintiffs’ negligence claims, but seemed to have “overlooked” the fact that the defense was also moving for dismissal of the invasion of privacy claim on that same ground. Candiello cited the 1994 decision by former Chief U.S. District Judge Edward N. Cahn in St. Luke’s Hospital of Bethlehem v. O’Leary that dismissed a claim for invasion of privacy because it was barred by the WCA. Cahn found that the exclusivity provision of the WCA “does not merely bar claims by employees to recover for physical injuries, but also bars actions based upon emotional damage.” In response, plaintiffs’ attorneys Rick Long of Kozloff Stoudt in Reading and Simon Grill, also of Reading, cited a trio of decisions from the Pennsylvania Superior Court that, they said, show that a claim of invasion of privacy is not subject to the WCA bar. Now Gardner has sided with the plaintiffs, finding that the Superior Court decisions — one of which was handed down after Cahn’s ruling — show that the Pennsylvania courts would not bar an invasion of privacy claim. “The state of the law has changed since Judge Cahn’s 1994 decision in O’Leary. Therefore, we find defendant’s reliance on that case misplaced,” Gardner wrote. “Because we find the Superior Court decisions persuasive, we decline to follow Judge Cahn’s decision.” In the most recent of the three rulings, the Superior Court held in Urban v. Dollar Bank in 1999 that the Workers’ Compensation Act is designed to compensate a person for physical or emotional impairment that requires medical treatment that can form the basis for a disability under the WCA. The Urban court went on to hold that a cause of action for defamation “is designed to redress harm to one’s reputation,” and an injury to one’s reputation is not a compensable injury under the WCA. In green lighting a defamation claim, the Urban court noted that not all injuries caused by employer misconduct are necessarily covered by the WCA. Instead, the court said, the WCA is designed to compensate employees for a physical or emotional impairment, occupational disease, mental illness or psychiatric injury resulting from employment. An injury to reputation, the court said, is not a personal injury, notwithstanding any concomitant physical or mental injury. Gardner found that Urban must be read in conjunction with two other decisions — the 1984 decision in Harris v. Easton Publishing Co. and the 1959 decision in Aquino v. Bulletin Co. — in which the Superior Court held that damages for invasion of privacy are awarded in the same way that general damages are awarded in defamation cases. Read together, Gardner found that the three decisions showed that a common law tort claim for invasion of privacy is not subject to the WCA bar. “In the absence of any authority by the Supreme Court of Pennsylvania, and in the absence of any persuasive authority to compel a different decision, we are compelled to follow the decisions of the Superior Court,” Gardner wrote.

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