Kratz v. Kratz

• Decision Date: 23 August 1979
• Docket Number: Civ. A. No. 78-795.
• Parties: Mildred Frances Sands KRATZ and Walter Roehrs, Jr. v. Lowell F. KRATZ and Fred T. Cadmus, III.
• Court: U.S. District Court — Eastern District of Pennsylvania

477 F. Supp. 463

Mildred Frances Sands KRATZ and Walter Roehrs, Jr. v. Lowell F. KRATZ and Fred T. Cadmus, III.

Civ. A. No. 78-795.

United States District Court, E. D. Pennsylvania.

August 23, 1979.

COPYRIGHT MATERIAL OMITTED

Lawrence Sager, Pottstown, Pa., for Mildred Kratz.

Arthur R. Shuman, Jr., Philadelphia, Pa., for Walter Roehrs, Jr.

William H. Mitman, Jr., West Chester, Pa., for Lowell Kratz.

Albert S. Shaw, Jr., Philadelphia, Pa., for Fred Cadmus.

OPINION

JOSEPH S. LORD, III, Chief Judge.

This is a suit to recover damages caused by the allegedly illegal interception of the plaintiffs' telephone communications by the defendants. The defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, and the plaintiffs have moved for summary judgment as to liability. For the following reasons, we will deny both motions.

I. FACTS:¹

The plaintiff Mildred Kratz, and the defendant Lowell Kratz, were married in 1947. In 1975, Mildred filed for divorce, and though she and Lowell were estranged, they continued to live in the same house.²

Sometime in early 1976, Lowell began to suspect that Mildred was not giving him his telephone messages. He also became suspicious of his wife's extra-marital activities. He therefore asked his attorney, defendant Fred Cadmus, whether it would be legal for him to place a wiretap on his family phone.³

Cadmus claims to have researched the applicable Pennsylvania and federal electronic surveillance statutes, and to have discovered the cases of Commonwealth v. Goldberg, 208 Pa.Super. 513, 224 A.2d 91 (1966), and Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974). From these cases Cadmus concluded that Lowell's proposed wiretapping would be legal under both Pennsylvania and federal law, and he so advised his client.⁴

Lowell hired one William Fitch to install the tap in February 1976. The tap was voice-activated, and recorded all incoming and outgoing calls. The tap intercepted Mildred's calls, and Lowell made notes of all his wife's conversations which he felt relevant to the divorce proceedings; he reported these conversations to Cadmus at least every other week.

From the wiretap, the defendants learned, among other things, that Mildred Kratz was involved in an extra-marital relationship with the plaintiff Walter Roehrs, and that the plaintiffs were planning to spend a week in London together. The defendants hired a private detective to follow the plaintiffs to London. As a result of what the defendants learned from the wiretap about the plaintiffs' relationship, Cadmus filed, on Lowell's behalf, a counter-suit for divorce.⁵

After the tap had been in place for several months, Lowell concluded that he had gathered enough information from the interceptions, and wanted to remove the tap from his phone. Cadmus advised him to leave the tap on so that they could gather more information about Mildred's "activities" to use in the divorce proceedings.

In July 1976, Mildred experienced difficulties with the phone and called the telephone company for repairs. The phone company's repair people discovered the tap and reported it to the police.⁶ Mildred Kratz and Walter Roehrs then each sued Lowell Kratz and Fred Cadmus for damages caused by the interception of their telephone communications;⁷ the two cases have been consolidated.⁸

II. THE DEFENDANTS' MOTION TO DISMISS:

A. Introduction

The plaintiffs have brought this suit pursuant to Title III of the Omnibus Crime Control and Safe Streets Act of 1968, ("Title III"), 18 U.S.C. §§ 2510-2520. Specifically, they allege that the defendants have violated 18 U.S.C. § 2511(1)(a) which decrees that:

"(1) Except as otherwise specifically provided in this chapter any person who—

(a) willfully intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire or oral communication; . . shall be fined not more than $10,000 or imprisoned not more than 5 years or both."

(emphasis added).⁹ The plaintiffs' cause of action is provided by 18 U.S.C. § 2520, which in pertinent part states that:

"Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) 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 communications, and (2) be entitled to recover from any such person —

(a) actual damages but not less than liquidated damages computed at the rate of $100 a day for each day of violation or $1,000, whichever is higher;

(b) punitive damages; and

(c) a reasonable attorney's fee and other litigation costs reasonably incurred."

The basis of the defendants' motion to dismiss is their claim that Congress, in enacting Title III, did not intend to prohibit one spouse from intercepting the wire communications of the other spouse in their own home. However, the plain and explicit language of Title III effectively refutes the defendants' argument. The clear and unambiguous meaning of § 2511(1)(a) is to prohibit the interception of all wire communications by any person except as specifically provided by Congress. And § 2520 plainly provides a cause of action to any person who is the victim of a § 2511(1)(a) violation.

In addition, the statute defines "person" as "any employee, or agent of the United States or any State or political subdivision thereof, and any individual, partnership, association, joint stock company, trust, or corporation." 18 U.S.C. § 2510(6) (emphasis added). This definition unquestionably includes the defendants. And since none of the exceptions to the proscriptions of § 2511(1)(a) is relevant to this case, see 18 U.S.C. §§ 2511(2) and (3), the statute clearly is applicable. Furthermore, when Congress has enacted a statute in such unambiguously inclusive language, and has listed specifically the exceptions to that statute's prohibitions, the only rational conclusion which a court can draw is that the statute means what it says, and prohibits all interceptions of wire communications, by any person, unless otherwise expressly provided.

Nevertheless, say the defendants, although the comprehensive and unambiguous language of Title III renders it applicable to the instant case, the statute is in fact inapplicable because there is no specific indication in its legislative history that Congress intended it to apply to cases such as ours. We would summarily dismiss such a fallacious approach to statutory interpretation had it not been the one adopted by the Fifth Circuit Court of Appeals in Simpson v. Simpson, 490 F.2d 803 (5th Cir.), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974).

In that case, the defendant husband, "harboring uncertainties as to his wife's faithfulness," attached a wiretapping device to his family phone, and intercepted his wife's telephone conversations. He used the information learned from this surveillance to obtain an uncontested divorce. His wife then sued him for damages under 18 U.S.C. § 2520. The Fifth Circuit, in a unanimous opinion written by then-Judge (and now former Attorney General) Griffin Bell, affirmed the lower court's dismissal of the suit and held that Title III does not proscribe the interception by one spouse of the other's telephone communications in the marital home. Because the defendants rely heavily upon Simpson and because we feel compelled to disagree with and reject that opinion, a somewhat detailed analysis of the holding is appropriate.

B. Simpson v. Simpson

(1) Resort to legislative history.

Judge Bell began his opinion by recognizing that the "naked language of Title III, by virtue of its inclusiveness, reaches this case." 490 F.2d at 805. Despite such language, he refused to "extend" Title III to the Simpson facts absent a positive expression of congressional intent (in the legislative history) to include such cases within the ambit of the statute. Judge Bell's reluctance stemmmed from his perception of Title III as creating a novel "federal remedy for persons aggrieved by the personal acts of their spouses within the marital home" and as providing "severe" remedies for such acts. Id. at 805-806.

Judge Bell therefore embarked upon a "voyage to seek congressional intent for the `naked' language of section 2520 by reviewing the legislative history, hearings, and debate. . . ." Comment, Interspousal Electronic Surveillance Immunity, 7 U. of Tol.L.Rev. 185, 200 (1975) hereinafter cited as Interspousal Surveillance. His travels through the legislative history of Title III convinced him that "Congress has not, in the statute, committee reports, legislative hearings, or reported debates indicated either its positive intent to reach so far into the marital home or an awareness that it might be doing so." 490 F.2d at 805. Judge Bell summarized his "search of the legislative materials" as "long, exhaustive, and inconclusive" with respect to Congress's intention to include "interspousal wiretapping"¹⁰ within the proscriptions of Title III. Therefore, he held that Title III was not "sufficiently definite and specific to create a federal cause of action for the redress of appellant's grievances against her former husband." Id. at 810.

It is difficult to imagine a statutory prohibition more "definite and specific" than that of § 2511(1)(a). Even assuming, arguendo, that Judge Bell's reading of Title III's legislative history was correct, the result reached in Simpson was erroneous, and a product of Judge Bell's most unusual and improper method of statutory analysis. In Simpson, Judge Bell seized upon an admittedly "inconclusive" legislative history as a reason for holding a statute inapplicable to a situation clearly encompassed by that statute's plain and unambiguous language. As a result, Judge Bell created, of his own accord, an exception to Title III not found in the...