Remington v. Remington

• Decision Date: 05 May 1975
• Docket Number: 74-2124.,Civ. A. No. 74-2123
• Citation: 393 F. Supp. 898
• Parties: Clifford G. REMINGTON and James Conwell Welsh, Esq. v. Kamila F. REMINGTON et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

393 F. Supp. 898

Clifford G. REMINGTON and James Conwell Welsh, Esq. v. Kamila F. REMINGTON et al.

Civ. A. Nos. 74-2123, 74-2124.

United States District Court, E. D. Pennsylvania.

May 5, 1975.

James E. Beasley, Philadelphia, Pa., for plaintiffs.

Thomas R. White, Jr., Philadelphia, Pa., John F. Christie, III, Richard K. Masterson, Norristown, Pa., George P. Williams, III, J. Grant McCabe, III, Philadelphia, Pa., Paul C. Vangrossi, Norristown, Pa., for defendants.

MEMORANDUM AND ORDER

BECHTLE, District Judge.

Section 2520 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2520, provides, in pertinent part, as follows:

"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. . . ."

Presently before the Court are two related cases brought under the above statute and the Pennsylvania anti-wire tapping law, 18 P.S. § 3742.¹ Seeking civil damages as provided in both the Federal and state statutes, Clifford G. Remington and James Conwell Welsh, Esq., have each instituted an individual action against the named defendants, alleging essentially that an electronic wiretapping device was installed upon the telephone line providing service to plaintiff Remington in his home at 311 Keithwood Road, Wynnewood, Pennsylvania, for the purpose of intercepting and recording his private telephone communications. The two complaints further allege that the defendants listened to and used the recordings of plaintiff Remington's conversations with his attorney (plaintiff James Conwell Welsh, Esq.) and other persons without his consent. Defendant Kamila Remington has moved the Court to dismiss Count I of the complaints for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6).²

The precise issue raised by the defendant's motion to dismiss is whether under § 2520 a husband may recover damages from his wife who, in concert with others, unlawfully intercepts, records, and thereafter discloses his private telephone communications. In ruling upon a motion to dismiss, all well-pleaded factual averments and every inference fairly deductible therefrom must be considered in the light most favorable to the plaintiff. Miller v. American Telephone & Telegraph Company, 507 F.2d 759, 761 (3rd Cir. 1974). With the above well-established legal principle in mind, the Court notes the operative allegations of plaintiffs' complaints.

During the month of January, 1970, defendants Thomas Kenny, individually and doing business as the Kenny Detective Agency, Kamila Remington and George Remington conspired to install and caused to be installed an electronic wiretapping device upon the telephone line used by plaintiff Clifford Remington in his home at 311 Keithwood Road in Wynnewood, Pennsylvania. The purpose of installing the wiretap device was to eavesdrop upon and intercept the husband's private telephone conversations with his attorney and numerous other persons who contacted or were contacted by the husband over the telephone line in question here. The device remained in place and functioned continuously from January, 1970, until May 12, 1972, when it was discovered and removed by the husband. As to defendants Obermayer, Rebmann, Maxwell & Hippel and High, Swartz, Roberts & Seidel, the complaints allege these law firms, through their respective partners, became aware of the existence of the wiretap and thereafter willfully and maliciously listened to and used the electronic recordings of the husband's telephone conversations without his consent, including the husband's communications with his attorney James Conwell Welsh, plaintiff in Civil Action No. 74-2124.

In support of the motion to dismiss Count I, defendant/wife contends that Congress did not intend § 2520 to be applicable "to that which transpires between a husband and wife during the course of their marriage within the marital home."³ The principal argument advanced by the defendant is that absent an unmistakable indication of applicability in the legislative history § 2520 should not be construed so as to control or regulate the use of wiretapping devices within the marital domain. Defendant cites the case of Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), as authority for the proposition that the subject statute does not provide a husband with a Federal cause of action against his wife who has caused to be installed a wiretap on the telephone line providing service to the husband's home. The Simpson case involved the installation by the husband of a wiretap to the telephone lines located within the marital home for the purpose of intercepting and recording conversations between his wife and another man. After compiling what he considered to be sufficient evidence of the wife's infidelity, the husband played the tapes for a lawyer, on whose advice the wife agreed to an uncontested divorce. The wife then brought an action for damages under § 2520, the statute under consideration here. Based upon an exhaustive and inconclusive review of the legislative history, the Fifth Circuit affirmed the lower court's dismissal of the action, holding that the "statute is not sufficiently definite and specific to create a federal cause of action for the redress of the wife's grievances against her former husband." 490 F.2d at 810.

While the court in Simpson refused to apply § 2520 to the situation where a husband uses electronic equipment to intercept the telephone conversations of his wife, the court expressly limited its decision to the specific facts of that case. In limiting the decision to the particular facts and circumstances of the case before it, the court pointed out that neither a public official nor any private person other than the husband was involved in the interception and that the locus in quo did not extend beyond the marital home of the parties. Moreover, the Simpson court noted:

". . . a third-party intrusion into the marital home, even if instigated by one spouse, is an offense against a spouse's privacy of a much greater magnitude than is personal surveillance by the other spouse." 490 F.2d at 809.

In light of the factual allegations set forth in the plaintiff/husband's complaint, defendant's reliance upon Simpson is unavailing. If proven, the facts of this case are significantly distinguishable from those upon which the decision in Simpson was based. The plaintiff in the instant case has alleged the involvement of a private detective agency and a third party in the installation of the wiretap and the subsequent use of the recordings by two law firms without the knowledge or consent of the plaintiffs. Furthermore, during oral argument heard on the defendant's motion to dismiss, it was revealed to the Court that the recordings had been transported to Florida and introduced as evidence in a Florida State Court proceeding. While Congress apparently did not intend to provide a Federal remedy for persons aggrieved by the personal acts of their spouses committed within the marital home, the Court is unable to conclude as a matter of law that the gross invasion of an individual's privacy by private detective agencies, law firms and other unknown persons, whether instigated by a spouse or not, is not included within the statutory proscription.

Finally, the Court finds support for the conclusion that § 2520 is applicable to the facts of this case by virtue of the inclusiveness of the statutory language. Section 2520 provides, in relevant part, that "any person" whose wire communication is intercepted or used...