thank you this case is fundamentally about a short phone call that was made from a taped communication line at a state police troop the purpose of that call was to order trooper diana to come back to work and this was the third time he had been relied on his defense or not defense his argument changed as the case developed originally it was that the somehow that the beeps were added they did not present any expert testimony with respect to that  the tape was introduced into evidence that somehow the sound was turned down on one and again there is no evidence other than his assertion that that could have or come to her testifying yes we did not dr yes we did your honor that was exactly what we did in that case and there was no expert testimony offered to refute that evidence but i guess i gather that with some were turned down with the surly be detected  by you or your expert but you're saying that that argument this is mere speculation and no as this was exactly your honor well our position is that this turned down evidence there was there was nothing introduced other than tripper diana testimony that the sound could be turned down a one down and kept up with the other and i saw the take clearly has the peeps on it you can hear it there is no motivation offered for why all these officers would do that there is no indication that they had any means opportunity or reason to do that and that they had any expertise in order to do that was there evidence that it could not be done that is that it that you could have that audible  end of the converse there was evidence offered that it cannot be done that came from troopers a kosky who was the communications expert at the state police who was responsible for installing the t l p one of seven that put the beeps across the line and he said specifically in response to a question from the judge that that kind of thing could not happen you could not the people is constant across the system or it was removed across the system you cannot turn it down to one end and have it appearing at the other end the first time that that were was personally delivered to trooper diana was on november fourteenth two thousand and three the second time on that same day tripper diana called captain aull to villa in response to getting that order and the captain told him at that time that he had to come back to work or should have his doctor union attorney call the state police human resources office to advise them why he couldn't come back the third time and that's the critical time that this case talks about was when trooper diana called the on the following friday november twenty first tapes communications line so that there would be documented proof the trooper diana caught the order to per hour capitol hill was concerned that he was not understanding that he was very were back to work for the deputy commissioner ministration will submit that that call was question goes to the very basics of and i simply do not understand why you get into the ordinary course of police business or any of that stuff every case that's been conversations the conversations of other people you have a third party eavesdropping on those conversations here we have one party to the conversation making the call i don't know why no one no one has discussed the separate statutory exclusion for persons who are acting under color of law intercepting a communication where that person is a party to the communication or where one of the parties is getting consent eighteen u s c twenty five eleven to see why i'm not privy i understand that your honor the reason the first of all that was jackley but the problem is is that a lot of these cases if you look at a modern tarpley and blake they seem to indicate that there's a separate if the call is made from a tape police communications line that that comes under that separate exclusion in the act that isn't the ordinary course of duties that that one party consensual issue was supposed to be for investigative purposes and that's usually utilized in the criminal  judgment initially and i understand your honour's questions again all of the cases interpret ng a call is coming from tape please communication lines as opposed to a police officer calling a suspect or whatever all of those cases seem to say that this particular exception is the one that you look to and i understand your concern and we don't have any of those because nobody's present all i talking about is a third party listening on supposedly private listening to private conversations about you and your honor i couldn't find any case specifically on point that dealt with this specific kind of issue there were criminal cases where there's not a criminal case involved here this is a civil rights case new cases that i can find that had to do with tapes communication lines where those cases that you were talking about the tarpley blake amati where they were listening to or including personal conversations long lines again it was ways early in the case also spoke to our chief counsel who indicated that they believe that that was not the appropriate section based on these other cases to talk about tape communication lines so yeah that was probably why his vent then pilcher well it was waste in summary judgment before the put in there in the response of the court to the son the first summary judgment motion the court rejected that which is why the the defense went to this other argument went to the argument about the tape communication lines really became specifically that was  an exception that was present in this case that that went to investigative matters a first argument out of qualified immunity is based on the operation of federal law an exception to the general wiretapping prohibitionist found in twenty five town and that's of the definition of an electronic device under federal law specifically excludes any telephones being used by a law enforcement officer in the ordinary course of the of his duties that section has been interpreted to mean in other circuits the phone calls made a  recorded police lines by police officers in the course of their ordinary duties and here the duties including notifying a subordinate that he had to return to work are appropriate and legal under title three if the federal statutory section is read in that mount read in that matter and we submit the reasonable police officers would read it that way the state police defendants here entitle to qualified immunity under both title three and the fourth amendment the trial court did you know found that you didn't preserve the qualified immunity issue with respect to the title three claims and again if you look at the record in this case i have clearly on page six twelve one of the most ms payne on the fourth memo it also talked about the judge specifically asked and have you are you also talking about the federal wiretap question the statutory question i said yes and there's also a bushnell discussion on page eight sixty five and eight sixty six at the conclusion that case were again you'll see the inner twenty of those issues those tarpley and blake talk about that intertwining in fact one of them specifically says that the two issues the fourth amendment issue and the state and the federal statutory issue or inextricably intertwined that if you were in my brief in the sixth in the levin circuits courts have already said that recording personal and business calls on police line is legal under the federal statute if it is legal the defendants have a right to rely upon it and therefore their actions cannot violate the fourth amendment if the defense in this case had nothing in this circuit to rely on with respect to this particular issue if they were to lift other circuits the eleventh circuit the sixth circuit the seventh circuit that a recorded line used by police contained be put on it so the issue of the beeps doesn't even enter into the question of qualified immunity under the fourth amendment amendment and the federal statute likewise into the pennsylvania constitution the defendant are title to judgment as a matter of law and we submit that summary judgment should have been granted in this case whether it was under the theory of the judge perry has a dance here or under the theory that we advanced in the in our application for reconsideration for s trial there was time enough for the court to consider at that time the judge had made a point in the summary judgment motion when the attorney general's office had this case that this was critical to the case about whether or not there were embedded beeps in that tape of a phone call and when i saw it that i said why didn't she would make this why why wasn't this submitted to the court and i did not get a good answer on that basically it was because it was in the hands of mr bailey because of the way that the tape had been it had not been saved by the state police it was given to the pens or the state troopers association as at the request of their attorney and that it was given to mr bailey whatever he took over the civil rights case where to get a back from them but again under pennsylvania law it is not unlawful police for police to tape communications going into and out of a police department as long as the system meets the three criteria stablished in the act that is that the telephones were being used for mr purposes and there were periodic warning beeps recordings may be destroyed and a norm recorded to telephone line was made available for public use in this case the dispute was over whether the winds were used for administrative purposes and whether there was a periodic beep on the line there is a definition of administrative purposes in the act you know we asked the trial court to define the term for the jury and even though the court defined ordinary course of business for purposes of the federal act the judge refused to define the term however we submit the under the every day meaning of administrative that is of or relating to management or the execution of public affairs that all funds act of calling for producing and i was a call made for mr purposes that is to convey in order to return to work if you listen to the tape you can hear as you it's as if in the call if it's a call for administrative purposes relates simply to the subject matter of the call rather than the purpose behind the cause i gather there was the person who ordered the call delivered all the time in police departments over their state communications line they call police officers to come to work they tell them not report to work they call them because there is a riot in the vicinity and they have to call out every every trip  those there used for those personal purposes all the time this was just another personal purpose here result jury award of over half a million dollars and understand and truly i see no basis for that award i bad to trooper diana in fact if anything they're animists was that they were trying to communicate this word to him so he wouldn't get into further hot water and nothing happened to trooper doing it as a result of this he's dead he was emotionally  understand that he makes that argument he never went to a doctor he never took any medication any prescription medication that were aware of if there was any damages in this case it was extremely slight to a lot of of what happened in this case in my opinion was smoke and mirrors and the jury bought into it i understand that and i understand i have that heavy burden of showing that this is a question of water now but again we don't we never saw the damages here when he came back to work he stayed o worker's comp so he wasn't even forced to return to work and when he came back within six months he was promoted to corporal there's no damage whatsoever you look at all of these other cases people had judges were recorded for months on end about personal conversations other persons were that the tape that was received from the state police does have the turns imbedded in it not only did mr diana testify that there were no be on the line when he spoke to  respectfully suggest that it's not mere bald assertion by mr diana that there were no beeps on the line certainly lieutenant all front indicated that he did not tell trooper  diana that he was recording the call you know obviously his explanation is that there was no no need to because the beefs were on the line however mr diana did not hear the beefs mr or trooper williams for the amount of time that he heard the tape did not hear a beat and triggers or kosky could not recall whether your beats or not so i think that that piece goes beyond mere assertion and i think that that is in essence the crux of this matter from a legal perspective as the various cases that have been raised by the appellant in this matter are distinguished bowl in the sense that a surreptitious recording done when a trooper was called with respect to some sort of work related issue although your honor it perhaps and call up your question the the jury was instructed with respect administrative purposes wasn't defined but the jury was instructed on that and clearly based on the testimony they heard a trial they didn't believe that it was for an administrative purpose you say a page twenty eight of your brief that they needed oh aren't before they could call diana to tell them to return to work are you serious about but the other testimony that was a douceur trial in addition to that there was some dispute at trial whether the tape that was actually being introduced was the actual regional pape with with respect to the ordinary course of police business under title three the in jury was instructed that if they found that this was the ordinary course of police business an investigative purpose in other words that they would properly instructed the jury that they could consider the the recording as it was to be in the ordinary course of police business the trial judge did not tell the jury that they that they had to find that there was an investigative reason in order to find that it was in the ordinary course how could of call to a police officer there telling him that he has to report for duty the following day not being within the ordinary course of release is well did the purpose for the phone call needs to be considered in the contacts mr diana was out on disability or the workers compensation claim she had a discussion or at least he testified that he had a discussion with captain alta bella relative to his condition and that his doctor had instructed him that he was not to return to  work it's our position that the reason for the telephone call was not just simply to document that mr diane had been told because mr diana had already been pol telling him that there's been a communication with the director of personnel linda bonnie and he has to come in what could be more business of the police than that well the concern your honor was that what they were trying to again yes so that's you need a warrant kind of thing again well if you're going to serve tissue slee records somebody your honor in again the right to privacy of a phone call from from an officer to another office saying you've got to be back at work tomorrow where how does cats come into play here if your honor if if mr diana had no notice that that telephone call was being recorded then he certainly had an expectation of privacy with respect to that it's understood that there are two people on that on that telephone call but it's one step beyond that when that telephone call is reported raised below and as should be considered by the court the question of administrative purpose it is entirely possible to interpret this telephone call as involving an administrative purpose just based simply on instruct the jury with respect to administrate purpose it did not define administration but in as the court's no doubt noted in the in the trial court's memorandum with respect to  observing the witnesses observing their credibility cross examination direct examination determined that this was not administrative and in ministre to purpose this was in fact the jury of serve that of state police captain who had taught wiretap violations by his own testimony a state police lieutenant called a state police trooper on a recorded line without notifying the trooper that he was in fact being recorded at the time and that will for all our bill well your honor met mr diana in the context that mr diana had been on disability for some time you know he had a wife a young child at home he was concerned that the fact that his lieutenant is calling him and  yeah you need a showing of malice you are now yes your honor and i believe that based on the circumstances here the jury again judging the credibility of the witnesses listening to what they said and  n their answers the question determined that in fact the the be volume had been turned down as there was testimony on the record that they'd be volume could be turned down so that it couldn't be her  and that these two gentlemen had done this for a purpose of hurting mr diallo you know i can see in another case that could be so but this case if you read what if you listen to read summary of what they say they're not trying to pull a fast right well you know you get back to work right i understood your honor but the impact on mr diana when he found out when when trooper williams called him and said hey did you know you'd been reported and he said no and as a state trooper he knew that the only reason that calls are recorded trooper trooper is when frankly something up there's a problem there was testimony put on the record the troopers normally if they call in on a recorded line will be switched to an unrecorded line for things like calling off secor or scheduling that sort of thing so the impact on mr diana was is relatable to his experience as a state trooper he realized that the fact that his lieutenant was reporting him suggested things more importantly than the fact that he was just merely being recorded a couple of quick things and roboto there's nothing again in the federal law that says that there must be notice again the beeves do not have to be on the line in order to get qualified immunity under the federal statute secondly that  n a point i wanted to address because i don't know that it's been raised the federal judge declined to grant our or to to charge the jury on the good faith defense we specifically objected to that injury instructions we authorization the post statues were talking about were outside the statute and therefore would not would not grant our our suggestion on that and we think that was critical too because that the jury never got the chance to look at that good faith founts with respect to the third phone call that phone call was made because trooper diana called the barracks so this isn't like the big bad state police coming down a trooper diana trooper diana calls back after he's been given that order twice and says do i really have to come back to work on monday that's why lieutenant all the fun is were to make a phone call because he wants to clarify that what to put on you know to make sure that he understands that he has to come back to work on monday and to document that call  furthermore there was information here in in oregon by my opponent that the jury decided that this was not made for ministry or purpose we don't know that we don't know why the jury decided that they did they made bought into this you know what i consider t hokey argument that there were no that the the beeps were added after the fact that when there is no special iraq authorities on these there were not know so again and i think that's critical because they may have thought they may have thought that it was had to be for  only but we know they are mr holmes is probably right given the evidence that was presented course we don't know for sure because there were no special well that's true but we again don't know whether it was issues were both preserved good and as a matter of law on the we understand your position ok thank you very much good case was very well argued we thank you and we will take the matter u