Marks v. Bell Telephone Co. of Pennsylvania

Decision Date27 January 1975
Citation331 A.2d 424,460 Pa. 73
PartiesMarc Lincoln MARKS, Appellant, v. BELL TELEPHONE COMPANY OF PENNSYLVANIA et al.
CourtPennsylvania Supreme Court

Herman M. Rodgers, Rodgers, Marks & Perfilio, Sharon, for appellant.

Jerome J. Shestack, Michael J. Mangan, Schnader, Harrison, Segal & Lewis, Philadelphia, for Bell Telephone Co.

John J. Regule, Sharon, for City of Sharon.



ROBERTS, Justice.

Appellant brought this action in equity to enforce his rights under the Pennsylvania Anti-Wire Tap Act. 1 This proceeding raises important questions regarding the remedies available for a violation of the Act as well as the responsibilities of telephone carriers under the Act.

The events leading to this appeal began in October, 1972, when the City of Sharon, Pennsylvania, installed a telephone recording system at its police department headquarters. The system, connected to all three listed department telephone numbers, automatically recorded all calls, both incoming and outgoing, conducted on police department telephones. It was structured so that the desk officer could not disengage it if a party to the communication objected to the interception.

To render this recording system compatible with the telephone system, the city requested that the Bell Telephone Company of Pennsylvania install a device called a 'recorder connector.' This device, which is interposed between the recorder and the telephone lines, protects Bell Telephone's equipment and employees from 'voltage surges' caused by the recording system. In compliance with its tariffs, Bell installed the 'connector.' 2

On November 24, 1972, appellant, an attorney practicing in Sharon, apparently received a message asking him to call a client held in custody at police headquarters. In response to this message, appellant telephoned the police department. While speaking to the client's mother, who was also at the police station, an unusual noise on the telephone line caused appellant to suspect the police were recording the conversation. He immediately asked to speak with the officer in charge, who confirmed his suspicions. Appellant requested that the interception stop but was informed that the officer could do nothing to terminate the interception. Later that day, the client, using a police department telephone, returned appellant's call. This conversation was also monitored over appellant's objections.

Appellant repeatedly demanded that the interception and recording halt. The police department refused. On November 27, 1972, appellant contacted Bell Telephone Company requesting that it cease its participation in the interception and recording by removing the 'connector'. This demand was also refused.

On November 28, 1972, appellant filed a complaint in equity in the court of common pleas seeking 1) preliminary and permanent injunctions prohibiting the city and Bell Telephone from intercepting and recording calls made by all individuals to or from police headquarters, 2) compensatory damages of $25,000 and punitive damages of $350,000 from Bell Telephone, and 3) compensatory damages of one dollar and punitive damages of $75,000 from the city. The trial court, without hearing evidence, denied appellant's motion for a preliminary injunction. Appellant appealed to this Court and we vacated the equity court's decree and remanded for an evidentiary hearing. On remand, the court, after a hearing, again refused to issue a preliminary injunction. Appellant appealed to this Court and, because the city stated that the recorder had been and would remain disconnected pending the outcome of the litigation, we affirmed the trial court's decree. Marks v. Bell Telephone Co., 450 Pa. 542, 301 A.2d 373 (1973).

In April, 1973, after conducting further hearings, the court, relying upon our decisions in Commonwealth v. Papsyzcki, 442 Pa. 234, 275 A.2d 28 (1971), and Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966), held that Sharon's monitoring system violated the Pennsylvania Anti-Wire Tap Act. The court ordered Sharon to terminate its interception of appellant's calls but awarded no damages. The court also concluded that Bell Telephone had not violated the Act.

Appellant filed exceptions protesting, inter alia, 1) the decree in favor of Bell Telephone, 2) the court's failure to award damages, and 3) the court's failure to enjoin all use of the recording system. These exceptions were denied and this appeal ensued. 3


Appellant argues that Bell Telephone violated the Anti-Wire Tap Act by supplying the city with a 'recorder connector' which enabled the city to monitor telephone conversations and by failing to disconnect the device when informed of the illegal activities of the city. Appellant does not claim, nor could he, that Bell actually engaged in the monitoring. His contention is that Bell is liable as an aider and abettor. Our statute provides that any person who 'wilfully violates or aids, abets or procures a violation of this act' is guilty of a misdemeanor and is subject to civil damages.

The essential element of aiding and abetting in criminal law is the sharing of wrongful intent with the principal. In Commonwealth v. MacFadden, 448 Pa. 146, 150, 292 A.2d 358, 360 (1972), we held that

'(t)o aid or abet in the commission of a crime, one must be an active partner in the intent to commit it.'

See Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Wilson, 449 Pa. 235, 296 A.2d 719 (1972); Commonwealth v. Pierce, 437 Pa. 266, 263 A.2d 350 (1970); Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937). Although we deal here not with a criminal prosecution for a violation of the statute but a civil proceeding, the Act defines the criminal violation and civil wrong with the same words and leaves no doubt that the Legislature intended that only that conduct punishable by criminal penalties can subject the actor to civil liability.

The record is devoid of any evidence of wrongful intent on the part of Bell Telephone. Bell's sole interest in supplying the city with the 'recorder connector' was the protection of its equipment and employees from dangerous voltage surges. Disconnection of the device would not have guaranteed the termination of improper interceptions. Had the device been removed, the city could have violated Bell Telephone's tariff and connected its recording system directly to the telephone lines. We therefore cannot assign to Bell any illicit or improper intent to violate appellant's statutory rights. Without this intent, Bell Telephone was not, for purposes of this Act, an aider or abettor. We therefore affirm the court's decision to deny appellant equitable relief and damages against Bell Telephone.


After concluding that the City of Sharon's recording system violated the Pennsylvania Anti-Wire Tap Act, the chancellor enjoined the city from intercepting and recording only appellant's calls. Appellant asserts that this injunction is erroneously narrow, that the court should have enjoined all use of the recording system. We cannot agree.

In his complaint, appellant alleged that not only his rights but the rights of all individuals in the community were being violated by the city's practice of recording all calls on police department lines. He accordingly asked the court to order the police department to desist from recording the calls of all individuals. Nevertheless, in the hearing on the preliminary injunction, appellant specifically stated that this suit was not filed as a class action. 4 Later in that hearing, the trial court, apparently in an effort to clarify the procedural posture of this action, advised appellant that the court would permit an amendment to appellant's complaint changing the individual action to a class action. Appellant made no such amendment.

Appellant sought to obtain class-action-like relief without satisfying the procedural prerequisites and protections of a class action. See Pa.R.Civ.P. 2230; see also Penn Galvanizing Co. v. Philadelphia, 388 Pa. 370, 130 A.2d 511 (1957); Delle-Donne and Van Horn, Pennsylvania Class Actions: The Future in Light of Recent Restrictions on Federal Access, 78 Dick.L.Rev. 460, 497--507 (1974). Moreover, were we to permit plaintiffs in actions like this to obtain such broad relief, not only would we circumvent our class action procedure, but we would also place defendants in a very difficult position. If the plaintiffs succeeded on the merits and the relief were granted, the defendants would be bound by the broad injunction. However, should the defendants be successful in the litigation, the verdict in their favor would have no res judicata effect upon persons not a party to the suit. Evans v. Moffat, 388 Pa. 559, 131 A.2d 141 (1957). See Albert v. Lehigh Coal and Navigating Co., 431 Pa. 600, 246 A.2d 840 (1968); Weissman v. Prashker, 405 Pa. 226, 175 A.2d 63 (1961); Sollinger v. Himchak, 402 Pa. 232, 166 A.2d 531 (1961). Thus, the defendants could be subjected to a multitude of suits all based upon the same basic set of facts, all seeking the same broad relief, and all free of any final effect upon new plaintiffs, although potentially binding upon the defendants. The class action under the Rules of Civil Procedure provide a means by which a large number of persons similarly situated can be represented in a single action without the negative effects of potential multiple litigation. Because appellant failed to utilize this procedure, he is entitled to only individual relief. 5


Appellant next contends that the court erred in refusing to award him damages. Our Anti-Wire Tap Act specifically imposes liability for damages upon a finding that the statute has been violated.

'Whoever wilfully violates ....

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    ...Lewis, 527 F.Supp.2d at 429 (quoting Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974));6 see also Marks v. Bell Tel. Co. of Pa., 460 Pa. 73, 331 A.2d 424, 430 (1975). In an appropriation claim, the "use or benefit" at issue is typically a commercial use of one's name or likeness. F......
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