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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.J

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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

facilitie s 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 C hester 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 fac ility 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 inten tionally 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 p hone calls made by and to [Chiles] in prison. Those recordings lead [Miller] to believe that [Chiles] was planning toJ

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fraudulently hide assets from her husband in their divorce proceedings as well as from his parents’ insurance company. [Miller] then “to ok 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 actio ns 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] dis closures 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

Wi retap Act?

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

was file d 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 rej ect 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

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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 o f 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 f irst 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 diligentlyJ

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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 Mi ller “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 inter cepting 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 offic er of properly

recorded 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.J

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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 offens es 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 b rief, 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 exce ptions 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) opinio n, 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.

,

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

5704(14)(i)(C) relates to the disclosure of communications by prisonJ

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authorities in county correctional facilities, as is borne out from the language

of Section 5704(14), which provides:

I t 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 f acility 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 themJ

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

re ckless 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 inves tigative

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 ofJ

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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 disclosur es 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 [Mille r] 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

neit her 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. Neverth eless, 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 t he 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 subcha pter,” including Section

5704 . An officer may only use intercepted communications as necessary “t o the proper performance of his official duties.” 18J

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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 makin g 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 othe r 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 al lows 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 con versation 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 l aw enforcement officers under SectionJ

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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: 1/6/202 3

_________________ __________ ______ ____ _______

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 Nanty

Glo rule. Nevertheless, we do note that the trial court rejected Chiles’ Nanto

Glo argument, finding Mill er’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” rela ted 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’ Nanty

Glo argument was flawed.