Are law enforcement officers immune from civil suits under Section 5725 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5725?
Winig v. Off. of Dist. Att’y of Philadelphia, 2023 WL 2196604 (Pa. Cmwlth.) (unreported), allocatur granted Dec. 5, 2023, appeal docket 32 EAP 2023
Winig sought damages against the Office of the District Attorney of Philadelphia (Prosecutors) for alleged violations of Pennsylvania’s Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S. §§ 5701-5782 (Wiretap Act) based on the Prosecutors’ use of recordings taken by Winig’s wife without Winig’s consent. Commonwealth Court summarized the factual background as follows:
From January 2011 until August 2019, Winig and Jessica Braverman (Interceptor) were married. Reproduced Record (R.R.) at 21a. During their marriage, Interceptor recorded various conversations between Interceptor and Winig without Winig’s knowledge or consent (Recordings). Id. In March 2018, Interceptor reported Winig for domestic violence to the Philadelphia Police Department. Id. In support of her report, Interceptor provided the Recordings to the police and, ultimately, Prosecutors. Id. at 22a. Based on the evidence in the Recordings, Prosecutors authorized Winig’s arrest. Id. at 22a-23a. Winig’s arrest resulted in the case of Commonwealth v. Winig, docketed at No. CP-51-0004159-2018, which was ultimately nolle prossed, before the trial court (Criminal Action).
In his Complaint, Winig outlined the various instances in which Prosecutors used or disclosed excerpts from the Recordings between July 2018 and January 2019. They were as follows: Prosecutors referenced and quoted the Recordings during the preliminary hearing in the Criminal Action. R.R. at 24a. Prosecutors referenced and quoted the Recordings in their response to Winig’s motion to quash the return of transcript and in the hearing that followed in the Criminal Action. Id. Prosecutors referenced and quoted the Recordings in their response to Winig’s motion to compel the surrender of Winig’s phone and in the hearing that followed in the Criminal Action. Id. Prosecutors referenced and quoted the Recordings in their motion to admit evidence of other acts and in the hearing that followed in the Criminal Action. Id. at 25a. Prosecutors referenced and quoted the Recordings in their response to Winig’s pretrial motions and in the hearing that followed in the Criminal Action. Id.
In April 2019, the trial court issued findings of fact and determined, as a matter of law, that Interceptor’s Recordings were created in violation of the Wiretap Act. Id. at 26a. The trial court prohibited Prosecutors from using the Recordings as evidence against Winig at the trial in the Criminal Action. Id. After the trial court’s ruling, Prosecutors withdrew the criminal charges against Winig. Id.
After Prosecutors withdrew the criminal charges, Winig filed his Complaint alleging Prosecutors knew or should have known the Recordings were obtained in violation of the Wiretap Act and that their use and disclosure of the contents of the Recordings were in violation of the Wiretap Act. Id.
Slip op. at 2-3. In preliminary objections to Winig’s complaint, Prosecutors asserted Winig’s claims were barred by prosecutorial and high public official immunity. Winig countered that Prosecutors were not immune from liability because Section 5725(b) of the Wiretap Act expressly waives sovereign immunity in providing that: “[t]o the extent that the Commonwealth and any of its officers, officials or employees would be shielded from liability under this section by the doctrine of sovereign immunity, such immunity is hereby waived for the purposes of this section,” 18 Pa. C.S. § 5725(b). The trial court sustained Prosecutors’ POs on the grounds of prosecutorial and high public official immunity and dismissed Winig’s Complaint. Winig appealed to Commonwealth Court. Commonwealth Court summarized the trial court’s reasoning offered in its Pa.R.A.P. 1925(a) Opinion as follows:
the trial court acknowledged the Wiretap Act waives sovereign immunity for purposes of civil claims, but concluded there is a “significant distinction between sovereign immunity, the subject matter of Section 5725(b) of the Wiretap Act, [18 Pa. C.S. § 5725(b),] and high public official and prosecutorial immunity, a separate and distinct category of immunity.” Trial Ct. Opinion, December 21, 2021, at 2. The trial court noted that “[h]igh public official immunity is a ‘long-standing category of common law immunity that acts as an absolute bar to protect high public officials from lawsuits arising out of actions taken in the course of their official duties and within the scope of their authority.’ Doe v. Franklin [Cnty.], 174 A.3d 593, 603 (Pa. 2017).” Id. at 5. The trial court concluded a plain reading of Section 5725(b) of the Wiretap Act confirms the legislature intended to bar sovereign immunity and did not intend to abrogate high public official or prosecutorial immunity. Id.
Slip op. at 4.
Commonwealth Court reasoned that while “sovereign immunity is expressly and specifically waived in Section 5725, the statute remains silent as to the waiver of any other form of immunity, including high public official immunity or prosecutorial immunity,” therefore the court was required to consider “whether the General Assembly intended to abrogate high public official immunity for prosecutors by expressly waiving sovereign immunity.” Slip op. at 12. The court held that the General Assembly did not provide a clear and unequivocal basis for civil suits against law enforcement officers, such as Prosecutors, when it enacted Section 5725 of the Wiretap Act, concluding that:
Based on a plain reading of Section 5717 and our Supreme Court’s application of it to law enforcement officers, including prosecuting attorneys, the General Assembly intended for law enforcement officers to be permitted to use information that may otherwise be in violation of the Wiretap Act, so long as it is necessary to the “proper performance of his official duties.” 18 Pa. C.S. § 5717(a.1). By carving out these acceptable use and disclosure provisions for law enforcement officers, the General Assembly specifically excluded law enforcement officers from liability under the Wiretap Act when their use or disclosure is done in the performance of their official duties.
The General Assembly did not provide a clear and unequivocal basis for civil suits against law enforcement officers, such as Prosecutors, when it enacted Section 5725 of the Wiretap Act. In fact, by separately providing for acceptable use and disclosure provisions for law enforcement officers under Section 5717, and by separately providing a remedy of removal of a law enforcement officer who intentionally violates the Wiretap Act under Section 5726, the General Assembly has evidenced an intention to treat law enforcement officers uniquely under the Wiretap Act. Our review of the Wiretap Act does not support a conclusion that the General Assembly intended to abrogate high public official immunity for law enforcement officers. Because the General Assembly did not specifically and intentionally abrogate high public official immunity, Prosecutors maintain high public official immunity and may not be held liable under Section 5725 of the Wiretap Act for their use of the Recordings within the performance of their duties prosecuting Winig in the Criminal Action. Therefore, the trial court did not abuse its discretion or commit an error of law when it sustained Prosecutors’ POs.
Slip op. at 15-16.
In so holding, the Commonwealth Court found that Pennsylvania Superior Court’s recent decision in Chiles v. Miller, 288 A.3d 913 (Pa. Super. 2023) (holding that that disclosure of inmate’s jail communications to civil attorneys was governed by the Pennsylvania Wiretap Act’s section addressing investigative disclosures to another investigative or law enforcement officer, and thus disclosure violated the Act) was inapplicable, explaining that:
while this Court may look to a decision of the Superior Court for its persuasive value, its decisions are not binding on this Court. A.S. v. Pa. State Police, 87 A.3d 914, 919 (Pa. Cmwlth. 2014), aff’d, 143 A.3d 896 (Pa. 2016). We find the facts of this case are distinguishable from the facts of Chiles as the prosecuting attorney in Chiles disclosed the contents of the intercepted communication to civil attorneys. The disclosure was not in the course of the prosecuting attorney’s official duties.
Slip op. at 16 n.3.
The Pennsylvania Supreme Court granted allocatur limited to the following issue:
Whether law enforcement officers are immune from civil suits under Section 5725 of the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. § 5725?
For more information, contact Kevin McKeon or Dennis Whitaker.