J-A20030-22

2023 PA Super 3

OLIVIA G. CHILES 

Appellant

v.

CHRISTOPHER E. MILLER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 45 EDA 2022

Appeal from the Judgment Entered December 3, 2021

In the Court of Common Pleas of Chester County 

Civil Division at No: 2019-09795-TT

BEFORE: STABILE, J., McCAFFERY, J., and PELLEGRINI, J.*

OPINION BY STABILE, J.: FILED JANUARY 6, 2023

Appellant, Olivia G. Chiles (“Chiles”), appeals from the order entered in 

the Court of Common Pleas of Chester County on December 3, 2021, granting 

summary judgment in favor of Appellee, Christopher E. Miller (“Miller”). In 

this action seeking damages for disclosures of intercepted communications 

under 18 Pa.C.S.A. § 5725,1 Appellant argues that the trial court committed 

error of law by granting summary judgment, because Miller’s disclosures 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 Pursuant to 18 Pa.C.S.A. § 5725(a), any person whose wire, electronic, or 

oral communication is disclosed in violation of the Wiretap Act has a civil cause 

of action against any person who discloses such communication, and is 

entitled to recover damages from that person, including actual damages, 

punitive damages, and reasonable attorney's fees and costs incurred. 
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violated the Wiretapping and Electronic Surveillance Control Act (“the Wiretap 

Act”), 18 Pa.C.S.A. § 5701 et seq. Following review, we reverse and remand. 

In Karoly v. Mancuso, 65 A.3d 301, 303-04 (Pa. 2013), our Supreme 

Court explained:

[The Wiretap Act] is designed to protect individual privacy while 

also giving law enforcement authorities a tool to combat crime. 

The statute generally prohibits intercepting, using, or disclosing 

private communications except pursuant to specified procedures. 

. . . The Act does, however, allow county correctional 

facilities to monitor and record inmate phone calls without 

any specific prior authorization, so long as inmates are notified 

in writing and anyone calling into the facility is also told that his 

call may be monitored and recorded. See 18 Pa.C.S. § 5704(14). 

Such facilities may divulge the recordings only as necessary 

to safeguard the facility, in response to a court order, or in the 

prosecution or investigation of a crime. See id. 

§ 5704(14)(i)(C). 

Id. at 303-04 (emphasis added) (footnote omitted).

The trial court set forth the basis for granting summary judgment in a 

footnote to its December 3, 2021 order, stating:

[Chiles’] complaint alleges a violation of [the Wiretap Act]. 

[Miller], who at the time of the incident was an Assistant District 

Attorney for Chester County, bases the instant motion on 18 

Pa.C.S.A. § 5704(14)(i)(C) which provides that it shall not be 

unlawful for an investigative or law enforcement officer to divulge 

an oral communication or electronic communication from or to an 

inmate in a facility if, inter alia[,] it is necessary in the prosecution 

or investigation of any crime. In the instant motion, [Miller] 

makes the following arguments. [Chiles] was arrested and 

ultimately convicted of arson and endangering person and 

property for intentionally setting fire to property owned by the 

parents of her estranged husband. [Miller] was the Assistant 

District Attorney assigned to the case. While [Chiles] was awaiting 

trial and in preparation therefore, [Miller] lawfully obtained 

recordings of phone calls made by and to [Chiles] in prison. Those 

recordings lead [Miller] to believe that [Chiles] was planning to 
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fraudulently hide assets from her husband in their divorce 

proceedings as well as from his parents’ insurance company. 

[Miller] then “took action to investigate those matters[.”] He also 

contacted counsel for the husband’s parents and provided him 

with the relevant recordings. He apparently also provided the 

relevant recordings to husband’s divorce lawyer. [Miller] argues 

that his actions come within the above-mentioned exclusion to the 

[Wiretap Act]. 

In response, [Chiles] argues that [Miller’s] actions violated 18 

Pa.C.S.A. § 5717 which makes it lawful for any investigative or 

law enforcement officer to disclose the contents of any wire, 

electronic or oral communication obtained under that section to 

another investigative or law enforcement officer. However, 

[Miller’s] disclosures were not made under this section. To the 

extent [Chiles] is arguing that [Miller] was not conducting an 

investigation into [Chiles’] alleged financial crimes while 

prosecuting her for arson, [Chiles] has provided no support for 

that allegation.

Trial Court Order, 12/3/21, at n. 1 (some capitalization omitted).2 

Chiles filed a timely appeal from the trial court’s December 3, 2021 

order. Both Chiles and the trial court complied with Pa.R.A.P. 1925.

Chiles asks us to consider two issues in this appeal:

1. Did the trial court err as a matter of law in granting summary 

judgment, and disregarding settled precedent, where [Miller’s] 

deposition testimony established that his disclosures of 

intercepted communications were unlawful and violated the 

Wiretap Act?

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2 The trial court noted that Chiles’ response to the summary judgment motion 

was filed eight days late. However, “[d]espite the apparent untimeliness of 

[her] response, we will review her opposition to the instant Motion.” Trial 

Court Order, 12/3/21, at n. 1. See also Trial Court Rule 1925(a) Opinion, 

2/24/22, at 1. Accordingly, we reject Miller’s suggestion that we should find 

Chiles’ issues waived on appeal for failure to file a timely response. See 

Miller’s Brief at 6, 9-11. 
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2. Did the trial court err as a matter of law in holding that [Miller’s] 

assertion, and his testimony, that his disclosures constituted 

“investigation” was sufficient to warrant summary judgment 

where the movant’s testimony was used to establish a factual 

question on which he should properly bear the burden of proof, 

in violation of the Nanty Glo rule. Borough of Nanty-Glo v. 

American Surety Co. of New York, 309 Pa. 236, 163 A. 523 

(Pa. 1932)?

Appellant’s Brief at 4. 

In Karoly, our Supreme Court reiterated:

A motion for summary judgment will only be granted if there is no 

genuine issue concerning any material fact, and the moving party 

is entitled to judgment as a matter of law. See Pa.R.C.P.

1035.2; Wilson v. El–Daief, 600 Pa. 161, 170, 964 A.2d 354,

359 (2009). An appellate court may reverse an order granting 

summary judgment where there is an error of law or an abuse of 

discretion. See Fine v. Checcio, 582 Pa. 253, 265 n. 3, 870 A.2d

850, 857 n. 3 (2005). Because the question of whether a genuine 

issue of material fact exists is one of law, appellate review is de 

novo. See Buffalo Twp. v. Jones, 571 Pa. 637, 644 n. 4, 813

A.2d 659, 664 n. 4 (2002). In undertaking such review, the record 

is viewed in the light most favorable to the non-moving party 

(here, [a]ppellant), and all doubts as to whether a genuine issue 

exists are resolved against the moving party. See Basile v. H & 

R Block, Inc., 563 Pa. 359, 365, 761 A.2d 1115, 1118 (2000).

Id., 65 A.3d at 308-09. We first consider whether the trial court committed 

an error of law in its interpretation of the Wiretap Act so as to warrant reversal 

of the order granting summary judgment. 

With respect to the Wiretap Act, our Supreme Court has stated:

A statute, such as [the Wiretap Act], which is in derogation of a 

constitutional right, the right of privacy, must be strictly 

construed. This principle of strict construction was clearly 

enunciated by this Court in Commonwealth v. Hashem:

No violations of any provisions of the Act will be 

countenanced, nor will the failure of prosecutors to diligently 
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follow the strict requirements of the Act be lightly 

overlooked. We must remain steadfast in this determination 

because there can be no greater infringement upon an 

individual’s rights than by an indiscriminate and unchecked 

use of electronic devices. Where, in the wisdom of the 

legislature, such devices may be authorized, as in the 

present act, that use will be strictly adhered to and jealously 

enforced; for the alternative, no privacy at all, is 

unthinkable.

526 Pa. 199, 206, 584 A.2d 1378, 1382 (1991) (emphasis in 

original).

Boettger v. Miklich, 633 A.2d 1146, 1148 (Pa. 1993). 

In his motion for summary judgment, Miller argued that he is an 

investigative officer for purposes of the Wiretap Act and that Section 5704(14) 

permitted him to disclose the recordings of Chiles’ prison conversations to a 

subrogation attorney for USAA and to the divorce attorney for Chiles’ 

estranged husband because Miller “was investigating and prosecuting [Chiles] 

after she committed arson by burning down the Property.” Motion for 

Summary Judgment at ¶¶ 22- 24.

Miller argued, correctly, that Section 5704 carves out exceptions to the 

general prohibitions against intercepting and disclosing communications. Id. 

at ¶ 16. He claimed his authority to disclose communications in the instant 

case is based on Section 5704(14)(i)(C), which, according to Miller, authorizes 

disclosure by an investigative or law enforcement officer of properlyrecorded prisoner communications “only as necessary to safeguard the orderly 

operation of the facility, in response to a court order or in the prosecution or 

investigation of any crime.” Id. at ¶ 18-19 (quoting 18 Pa.C.S.A. 
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§ 5704(14)(i)(C)). Miller noted that “an investigative or law enforcement 

officer” is defined in Section 5702 as “[a]ny officer of . . . the Commonwealth 

or political subdivision thereof, who is empowered by law to conduct 

investigations of or to make arrests for offenses enumerated in this chapter 

. . ., and any attorney authorized by law to prosecute or participate in the 

prosecution of such offense.” Id. at ¶ 20 (quoting 18 Pa.C.S.A. § 5702). 

Miller preemptively dismissed Chiles’ anticipated reliance on Section 

5717, which provides that disclosures may be made only to other law 

enforcement or investigative officers. Id. at ¶ 25. Without citation to 

authority in his motion, in his supporting brief, or in his brief filed with this 

Court, Miller proposed that citation to Section 5717 was a “red herring,” and 

that he “need only rely on one exception to the Wiretap Act to justify his 

conduct, he need not prove or establish each of the numerous exceptions to 

the Wiretap Act.” Id. at ¶¶ 25-28. 

The trial court adopted Miller’s reasoning, as reflected in the footnote 

from the court’s order granting summary judgment quoted above. The trial 

court reiterated that rationale in its Rule 1925(a) opinion, finding among its 

“undisputed facts” that Section 5704(14)(i)(C) authorized Miller’s disclosure. 

Trial Court Rule 1925(a) Opinion, 2/24/22, at 3-5. However, as reflected in 

the quoted excerpt from our Supreme Court’s decision in Karoly, i.e., 

providing that “[s]uch facilities may divulge the recordings,” Section 

5704(14)(i)(C) relates to the disclosure of communications by prison 
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authorities in county correctional facilities, as is borne out from the language 

of Section 5704(14), which provides: 

It shall not be unlawful and no prior court approval shall be 

required under this chapter for:

. . .

(14) An investigative officer, a law enforcement 

officer or employees of a county correctional facility 

to intercept, record, monitor or divulge an oral 

communication, electronic communication or wire 

communication from or to an inmate in a facility under the 

following conditions:

(i) The county correctional facility shall adhere to 

the following procedures and restrictions when

intercepting, recording, monitoring or divulging an oral 

communication, electronic communication or wire 

communication from or to an inmate in a county 

correctional facility as provided for by this paragraph:

. . .

(B) Unless otherwise provided for in this 

paragraph, after intercepting or recording an 

oral communication, electronic communication 

or wire communication, only the 

superintendent, warden or a designee of 

the superintendent or warden or other 

chief administrative official or his or her 

designee, or law enforcement officers shall 

have access to that recording.

(C) The contents of an intercepted and 

recorded oral communication, electronic 

communication or wire communication 

shall be divulged only as is necessary to 

safeguard the orderly operation of the facility, 

in response to a court order or in the 

prosecution or investigation of any crime.

18 Pa.C.S.A. § 5704(14)(i)(B), (C) (emphasis added).

In the instant case, prison authorities complied with Section 

5704(14)(i)(C) when they recorded Chiles’ conversations and divulged them 
J-A20030-22

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to Miller in the course of his prosecution and investigation of the arson and 

reckless endangerment charges against Chiles. However, although the 

disclosure to Miller was governed by Section 5704(14)(i)(C), the subsequent 

disclosure from Miller was not governed by that section, but rather by Section 

5717 (Investigative disclosure or use of contents of wire, electronic or oral

communications or derivative evidence). As the Supreme Court recognized in

Karoly, after the county detective in that case acquired the intercepted

communication and properly shared it with an assistant district attorney, the

detective and assistant district attorney “were subject to independent

statutory limitations on its use and disclosure. Both use and disclosure are

closely cabined by the Act, as set forth in Section 5717[.]” Karoly, 65 A.3d

at 309.

Section 5717 provides, in pertinent part:

(a) Law enforcement personnel.--Any investigative or law 

enforcement officer who, under subsection (a.1), (b), (b.1) or 

(c), has obtained knowledge of the contents of any wire, 

electronic or oral communication, or evidence derived 

therefrom, may disclose such contents or evidence to 

another investigative or law enforcement officer to the 

extent that such disclosure is appropriate to the proper 

performance of the official duties of the officer making or receiving

the disclosure.

(b) Evidence.--Any person who by any means authorized by this 

chapter, has obtained knowledge of the contents of any wire, 

electronic or oral communication, or evidence derived therefrom, 

may disclose such contents or evidence to an investigative 

or law enforcement officer and may disclose such contents or 

evidence while giving testimony under oath or affirmation in any 

criminal proceeding in any court of this Commonwealth or of 
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another state or of the United States or before any state or Federal 

grand jury or investigating grand jury.

18 Pa.C.S.A. § 5717(a), (b) (emphasis added). 

Although Miller qualifies as an “investigative or law enforcement officer”

under Section 5702, his authority to disclose communications under Section

5717 is limited to disclosures to “another investigative or law enforcement

officer.” Here, the disclosures were made to two civil practitioners, one, an

attorney for USAA who was pursuing a subrogation claim, and the other, a

divorce attorney retained by Chiles’ estranged husband. The trial court noted,

“It is conceded that the civil lawyers to which [Miller] disclosed the intercepted

calls are not investigative or law enforcement officers.” Trial Court Rule

1925(a) Opinion, 2/24/22, at 3. That concession is consistent with the

statutory definition of “investigative or law enforcement officer” because

neither civil attorney is an “officer of the Commonwealth . . . empowered by 

law to conduct investigations of or to make arrests” nor an “attorney 

authorized by law to prosecute or participate in the prosecution of such 

offense.” 18 Pa.C.S.A. § 5702. Nevertheless, the trial court dismissed 

application of Section 5717 and based its ruling on application of Section 

5704(14)(i)(C). We conclude this was error.

As the Court in Karoly explained:

Subsection 5717(a.1) restricts the use that an investigative or law 

enforcement officer may make of communications obtained “by 

any means authorized by this subchapter,” including Section

5704. An officer may only use intercepted communications as 

necessary “to the proper performance of his official duties.” 18
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Pa.C.S. §5717(a.1). Likewise, subsection 5717(a) provides that 

information obtained under subsection (a.1) or (b) may only be 

disclosed to other investigative or law enforcement officers, and 

only to the extent that such disclosure is appropriate to the official 

duties of the officer making or receiving the disclosure. See 18

Pa.C.S. §5717(a).

Karoly, 65 A.3d at 310 (emphasis added) (footnote omitted). Because 

Section 5717 applies, Miller’s disclosure to the civil attorneys violated the 

Wiretap Act. 

As the Supreme Court observed in Karoly:

Section 5717(a) only expressly allows officials to disclose 

intercepted communications to other investigative or law 

enforcement officers, and only to the extent such disclosure is 

appropriate to the proper performance of official duties. See, 

e.g., [Boettger v. Miklich, 633 A.2d 1146, 1149 (Pa. 1993)] 

(finding that because Section 5717(a) only allows disclosure to 

investigative and law enforcement officers as defined in Section 

5702 of the Act, it prohibits distribution to taxing authorities); see 

also Dance v. Pa. State Police, 726 A.2d 4, 8-9 (Pa. Cmwlth. 

1999) (finding that, where a private conversation was intercepted 

to investigate possible criminal conduct by a police officer, its 

subsequent disclosure to a police internal affairs officer violated 

the Act). 

Id. 65 A.3d at 311.

 

We find the trial court committed error of law by granting summary 

judgment based on application of Section 5704(14)(i)(C). Because Section 

5717 governs here, and because Miller disclosed communications to persons 

who did not qualify as investigative or law enforcement officers under Section 
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5702, we reverse the grant of summary judgment and remand for further 

proceedings.3 

Judgment reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2023

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3 Because our disposition of Chiles’ first issue is dispositive, we need not 

address her second issue relating to issues of material fact and the NantyGlo rule. Nevertheless, we do note that the trial court rejected Chiles’ NantoGlo argument, finding Miller’s motion was not based solely on Miller’s 

deposition but rather also relied on facts from Chiles’ pleadings, her criminal 

dockets, and emails to and from her counsel. Trial Court Rule 1925(a) 

Opinion, 2/24/22, at 7. However, each of those “facts” related to the 

interception of Chiles’ conversations, not Miller’s disclosure of them. 

Disclosure, not interception, was at issue in Miller’s motion and Chiles’ 

opposition to it. Therefore, the trial court’s basis for rejecting Chiles’ NantyGlo argument was flawed.