Chiles, O. v. Miller, C.

J-A20030-22
2023 PA Super 3OLIVIA G. CHILES : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRISTOPHER E. MILLER : 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
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* 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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2The 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 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.
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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
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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 Nanty-
Glo rule. Nevertheless, we do note that the trial court rejected Chiles’ Nanto-
Glo 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’ Nanty-
Glo argument was flawed.
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