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HomeMy WebLinkAbout2014-5444 DOUGLAS WOTRING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : No. 2014-05444 : MARGARET STUSKI, and : CIVIL ACTION – LAW DANIEL HAIR as an individual and in : his official capacity as an officer for the : West Shore Regional Police and MICHAEL : HOPE as an individual and in his capacity : as an officer for the West Shore Regional : Police, : JURY TRIAL DEMANDED Defendants : : IN RE: DEFENDANT STUSKI’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE GUIDO, P.J., HESS, S.J. AND BREWBAKER, J . OPINION and ORDER OF COURT BREWBAKER, J., June 13, 2016 Plaintiff Douglas Wotring filed a Complaint against both Margaret Stuski, in her individual capacity, and Officer Daniel Hair in both his individual and official capacities for violations of the Wiretapping and Electronic Surveillance Control Act. Before the Court are Defendant Stuski’s Preliminary Objections to the Second Amended Complaint. 1 Plaintiff and Defendant Stuski previously resided together in Cumberland County. Plaintiff alleges that in 2012, Defendant Stuski accessed his private, password-protected email account and intercepted numerous emails, many of which were between Plaintiff and a third 2 party. The Complaint further alleges that Defendant Stuski disclosed these emails to the West 3 Shore Regional Police Department, specifically to Officer Daniel Hair. Officer Hair then 1 Plaintiff’s Second Amended Complaint, ¶ 8. 2 Plaintiff’s Second Amended Complaint, ¶¶ 10-11, 16 3 Plaintiff’s Second Amended Complaint, ¶¶ 15, 18. allegedly disclosed and used the emails to file a criminal complaint against Plaintiff in October 4 2012. Plaintiff filed the original Complaint on September 15, 2014. The matter was removed to federal court, where some of the counts were dismissed, with the remainder sent back to this Court. Defendant Hair and the West Shore Regional Police Department filed preliminary objections on November 15, 2015, which were partially sustained. An Amended Complaint was filed on March 18, 2016. Defendant Hair and the West Shore Regional Police Department filed preliminary objections to the First Amended Complaint on April 6, 2016. Plaintiff filed a Second Amended Complaint on April 21, 2016, against only Defendant Stuski and Officer Hair. Defendant Stuski filed Preliminary Objections to the Second Amended Complaint on May 9, 2016. Oral arguments on Defendant Stuski’s Preliminary Objections were heard on June 3, 2016. Under the Wiretapping and Electronic Surveillance Control Act, a person is guilty of a third degree felony if he or she intentionally intercepts “any wire, electronic or oral communication,” or intentionally discloses or uses a wire, electronic or oral communication “knowing or having reason to know that the information was obtained through the interception” of such a communication. 18 Pa. C.S. §5703. “Intercept” is defined in relevant part by the Wiretap Act as “\[a\]ural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.” 18 Pa. C.S. §5702. An “electronic, mechanical, or other device” is further defined as “\[a\]ny device or apparatus, including, but not limited to, an induction coil or a telecommunication identification interception device, that can be used to intercept a wire, electronic or oral communication.” Id. Disclosure and use are not defined by the statute. 4 Plaintiff’s Second Amended Complaint, ¶ 21. An individual whose communications are intercepted, disclosed, or used in violation of the Wiretap Act has a civil cause of action under Section 5725 of the Crimes Code against the person who intercepted, disclosed, or used the communications. 18 Pa. C.S. §5725 (“Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication.”). The plaintiff may recover actual and punitive damages, as well as reasonable attorney fees and costs. Id. An underlying requirement for a civil cause of action is that the defendant must have violated Section 5703. See Commonwealth v. DeBlase, 515 A.2d 564, 566 (Pa. Super. 1986); see also 18 Pa. C.S. §5725 (“Any person whose … communication is intercepted \[or\] disclosed in violation of this chapter shall …”) (emphasis added). Examining the Complaint in the light most favorable to Plaintiff, we conclude that Plaintiff has not, and cannot, state a valid cause of action against Defendant Stuski under the Wiretap Act. Plaintiff’s allegations are that his email account was password-protected and Defendant Stuski did not have permission to access the emails. Furthermore, Plaintiff alleges that Defendant Stuski “intercepted” Plaintiff’s emails by “accessing his account without … 5 permission,” and disclosed the emails to the West Shore Regional Police. There is no allegation that Defendant Stuski intercepted Plaintiff’s emails concurrently with the emails being sent. The only allegation is that Defendant Stuski accessed or hacked the emails, meaning the emails had already been received by Plaintiff and merely were being read later by Defendant Stuski. As our Superior Court has explained, “\[i\]f an intercept did not occur during the transmission of the message, or at least simultaneous to the receipt of the message, then we must logically conclude that no intercept occurred at all.” Commonwealth v. Diego, 119 A.3d 370, 381 (Pa. Super. 2015) 5 Plaintiff’s Second Amended Complaint, ¶¶ 11, 15. (“Once an individual …message is received by the intended recipient, the communication has ended. Once the communication had ended, it is simply illogical to conclude that subsequent actions constitute intercepts within the meaning of the Wiretap Act.”). The allegations in the complaint do not support a claim that Defendant Stuski “intercepted” Plaintiff’s emails. Plaintiff’s other allegation against Defendant Stuski, that she illegally disclosed emails to the West Shore Regional Police Department, also fails. In order for a communication to be disclosed in violation of the Wiretap Act, there must first have been an interception. Section 5703(2) states that a person violates the Wiretap Act if they intentionally disclose communications “knowing or having reason to know that the information was obtained through the interception of \[a communication\].” 18 Pa. C.S. §5703(2) (emphasis added). Because we have concluded that Defendant Stuski did not intercept Plaintiff’s communications in violation of the Wiretap Act, there cannot have been an illegal disclosure. Consequently, Plaintiff cannot 6 bring a valid cause of action against Defendant Stuski under the Wiretap Act. For the above stated reasons, Defendant Stuski’s Preliminary Objections to the Second Amended Complaint will be sustained. Because we do not believe that Plaintiff can amend his complaint in such a way to support a valid cause of action, we will dismiss the complaint with prejudice and will not give Plaintiff leave to amend. 6 Defendant Hair and Chief Michael Hope of the West Shore Regional Police Department filed Preliminary Objections to the First Amended Complaint, but did not file Preliminary Objections to the Second Amended Complaint which did not name Chief Hope as a defendant. While we therefore may not dismiss the case entirely, we note that the underlying count against Defendant Hair requires a showing that Defendant Stuski intercepted the emails in question, which we have ruled she did not. Consequently, the underlying allegations against Defendant Hair are likely without merit and may be dismissed if the proper motion is filed with this Court. ORDER th AND NOW, this 13 day of June, 2016, upon consideration ofDefendant Stuski’s SUSTAINED Preliminary Objections, the Preliminary Objections are and Plaintiff’s Second Amended Complaint is dismissed against Defendant Stuski with prejudice. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Vincent M. Monfredo, Esquire nd 3300 Trindle Road, 2 Floor Camp Hill, PA 17011 For the Plaintiff Margaret M. Stuski, Esquire, Pro Se 908 W. Walnut Street Wormleysburg, PA 17043 Defendant Donald Carmelite, Esquire 100 Corporate Center Drive Suite 201 Camp Hill, PA 17011 For Defendants Hair and Hope DOUGLAS WOTRING : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : No. 2014-05444 : MARGARET STUSKI, and : CIVIL ACTION – LAW DANIEL HAIR as an individual and in : his official capacity as an officer for the : West Shore Regional Police and MICHAEL : HOPE as an individual and in his capacity : as an officer for the West Shore Regional : Police, : JURY TRIAL DEMANDED Defendants : : IN RE: DEFENDANT STUSKI’S PRELIMINARY OBJECTIONS TO PLAINTIFF’S SECOND AMENDED COMPLAINT BEFORE GUIDO, P.J., HESS, S.J., AND BREWBAKER, J. ORDER OF COURT th AND NOW, this 13 day of June, 2016, upon consideration ofDefendant Stuski’s SUSTAINED Preliminary Objections, the Preliminary Objections are and Plaintiff’s Second Amended Complaint is dismissed against Defendant Stuski with prejudice. BY THE COURT, __________________________ Jessica E. Brewbaker, J.