Keppley v. School District of Twin Valley

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority affirms the order of the Court of Common Pleas of Berks County (trial court) denying the motion for class certification filed by Morgan Keppley (Keppley). For the following reasons, I would vacate and remand.

Keppley filed a complaint against the School District of Twin Valley (School District) and others responsible for the installation of audio surveillance equipment on school buses (the Defendants). The complaint sets forth a class action which alleges that the Defendants violated the Wiretapping and Electronic Surveillance Control Act (Act), 18 Pa.C.S. §§ 5701-5775, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), 18 U.S.C. § 2511, and 42 U.S.C. § 1983. Keppley sought class certification for all persons who rode in school buses containing surveillance equipment from March 6, 1996, to August 16, 2001.

I. Section 5725 of the Act

The trial court denied class certification, concluding that, under the Act, a proper class definition would be: persons who rode the school buses and whose oral communications actually were intercepted by surveillance equipment. (Trial et.’s Conclusions of Law, No. 15.) The majority states that, under Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519 (1998), the trial court was incorrect and that, under the Act, Keppley could bring a civil suit for damages against the Defendants for attempted interception of her oral communications. (See Majority op. at 8.) I disagree.

Section 5703 of the Act essentially states that a person is guilty of a felony of the third degree if the person: (1) intentionally intercepts, endeavors to intercept or procures any other person to intercept or endeavor to intercept any oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any oral communication having reason to know that the information was obtained through the interception of an oral communication; or (3) intentionally uses or endeavors to use the contents of an oral communication having reason to know that the information was obtained through the interception of an oral communication. 18 Pa.C.S. § 5703. Section 5702 of the Act defines “oral communication” as “[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 Pa.C.S. § 5702.

Section 5725(a) of the Act states that “[a]ny person whose ... oral communication is intercepted, disclosed or used in violation of this chapter shall have a civil cause of action [for damages] against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication....” 18 Pa.C.S. § 5725(a) (emphasis added). In addition, section 5726 of the Act allows an aggrieved person to bring an action against a public official or public employee seeking removal from employment on the *1178grounds that the official or employee intentionally violated the Act. 18 Pa.C.S. § 5726. To summarize, if anyone actually intercepts a person’s oral communication, the person may file a civil action seeking damages. If a public official or public employee endeavors to intercept a person’s oral communication, the person may file an action seeking removal from employment.

In Agnew, a police officer sought the removal of a police chief from employment under section 5726 of the Act after the police chief used an intercom to monitor the squad room. Thus, the police chief could have been removed from employment if the police chief violated the Act, i.e., endeavored to intercept the police officer’s oral communications. See 18 Pa.C.S. §§ 5703 & 5726. Here, however, Keppley is not seeking to remove the Defendants from their employment under section 5726 of the Act. Rather, Keppley is seeking damages under section 5725 of the Act. As indicated above, section 5725 authorizes a person to file a civil action for damages only if the person’s oral communication “is intercepted, disclosed or used.” 18 Pa.C.S. § 5725 (emphasis added).

Unlike the majority, I would conclude that the trial court correctly decided that, to the extent Keppley is pursuing a class action under section 5725 of the Act, Kepp-ley’s proposed class definition, encompassing all persons who rode on buses with surveillance equipment, was overly broad. Keppley needed to seek class certification for all persons who rode on school buses and whose oral communications actually were intercepted.1 Moreover, I agree with the trial court that Keppley failed to present sufficient evidence to justify class certification for persons whose oral communications actually were intercepted.

II. Count XXY — Civil Conspiracy

Although I believe the trial court was correct in its interpretation of section 5725 of the Act, I am troubled by the fact that the trial court failed to address Keppley’s civil conspiracy claim in Count XXV. Section 5725 of the Act does not authorize a civil claim for damages based on a civil conspiracy theory. Thus, the civil conspiracy claim is separate from, and in addition to, the claims brought under section 5725 of the Act.2

Count XXV alleges that the' Defendants engaged in a civil conspiracy to violate the Act by forming a scheme to intercept, disclose and use the contents of the oral communications of persons riding on school buses. To prove a civil conspiracy, it must be shown that two or more persons combined or agreed, with intent, to do an unlawful act. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979). Thus, the claim is that the Defendants, at a minimum, endeavored to intercept, disclose and use the oral communications of all persons who rode the school buses.3

*1179This means that, although the class definition proposed by Keppley was inappropriate for the claims brought under section 5725 of the Act, the class definition was appropriate for the civil conspiracy claim in Count XXV. I submit that the trial court abused its discretion in failing to consider whether to certify the class with respect to Count XXV.4

III. Class Certification

As indicated above, the majority concludes that Keppley’s class definition is appropriate with respect to all claims, including claims brought under section 5725 of the Act. I conclude, however, that Kepp-ley’s class definition is appropriate only with respect to the civil conspiracy claim in Count XXV. The majority ultimately determines that the trial court properly denied Keppley’s motion for class certification with respect to the section 5725 and Title III claims, but I submit that, because of the trial court’s failure to consider the proposed class definition, the trial court did not make sufficient findings of fact or conclusions of law as to whether class certification should be granted or denied with respect to the state claim in Count XXV.5

In Pennsylvania, the burden of establishing the prerequisites for class certification is not a heavy one; the proponent need only present sufficient evidence to make out a prima facie case for class certification.6 Baldassari v. Suburban Casble TV Co., Inc., 808 A.2d 184 (Pa.Super.2002), appeal denied, 573 Pa. 694, 825 A.2d 1259 (2003). It is the strong and oft-repeated policy of this Commonwealth that, in applying the rules for class certifi*1180cation, a court should make decisions liberally and in favor of maintaining a class action. Id. Thus, in a doubtful case, any error should be committed in favor of allowing the class action. Janicik v. Prudential Insurance Company of America, 305 Pa.Super. 120, 451 A.2d 451 (1982).

Nevertheless, trial courts are vested with broad discretion in making class certification decisions, and a court’s denial of class certification will not be disturbed on appeal unless the court neglected to consider the requirements of the rules or unless the court abused its discretion in applying the rules. Baldassari. As stated above, the trial court in this case neglected to consider the requirements of the rules with respect to the civil conspiracy claim in Count XXV.

A.Numerosity

Pa. R.C.P. No. 1702(1) states that a class member may sue on behalf of all members of a class if the class is so numerous that joinder of all members is impracticable. The majority concludes that Keppley satisfied the numerosity requirement under the Pennsylvania rules governing class certification. (Majority op. at 10.) Because I agree, I will not address the matter further.

B.Commonality

Pa. R.C.P. No. 1702(2) states that a class member may sue on behalf of all members of a class if there are questions of law or fact common to the class. Common questions generally will exist if the class members’ legal grievance arises out of the same practice or course of conduct on the part of the class opponent. Janicik. Here, in the civil conspiracy claim, the legal grievance of the class members arises out of the alleged conspiracy of the Defendants to intercept the class members’ conversations, even those that were private. All questions of law and fact related to this legal grievance are common to the class members.

The majority concluded that, with respect to the section 5725 claims, it would be necessary to have each individual person testify regarding his or her expectations of privacy on the school buses. (Majority op. at 11-13.) However, the individual expectations of privacy would be irrelevant in the civil conspiracy claim because such a claim rests solely on the intentions of the Defendants. In other words, even if the persons on the buses had no expectation of privacy in their conversations, the Defendants would be liable to the class if they endeavored to intercept the private conversations of persons riding the buses.

C.Typicality

Pa. R.C.P. No. 1702(3) states that a class member may sue on behalf of all members of a class if the claims of the representative party are typical of the claims of the class. The majority concludes that Kepp-ley met this requirement under the Pennsylvania rules governing class certification. (See majority op. at 14.) I agree and will not discuss it further.

D.Fair and Adequate Representation

Pa. R.C.P. No. 1702(4) states that a class member may sue on behalf of all members of a class if the representative party will fairly and adequately assert and protect the interests of the class. Pa. R.C.P. No. 1709 requires the court to consider: (1) whether the attorney for the representative party will adequately represent the interests of the class; (2) whether the representative party has a conflict of interest in the maintenance of the class action; and (3) whether the representative party has or can acquire adequate financial resources to assure that the interests of the class will not be harmed.

No one questions the ability of Kepp-ley’s attorney to adequately represent the *1181interests of the class, and no one suggests that Keppley has a conflict of interest in the maintenance of the class action. The only question is whether Keppley has or can acquire adequate financial resources to assure that the interests of the class will not be harmed. However, the trial court made no findings of fact or conclusions of law relating to Keppley’s financial resources.7 Thus, it is not possible for me to reach a conclusion on this issue.8

E. Fair and Efficient Method

Pa. R.C.P. No. 1702(5) states that a class member may sue on behalf of all members of a class if a class action provides a fair and efficient method for adjudication of the controversy. Pa. R.C.P. No. 1708 lists multiple factors that must be considered in determining whether a class action provides a fan- and efficient method for adjudication. However, the trial court made no findings of fact or conclusions of law relating to these factors. Thus, it is not possible for me to reach a conclusion on this issue.

Because the trial court did not consider whether class certification is appropriate with respect to the civil conspiracy claim in Count XXV and because the trial court did not make necessary findings of fact and conclusions of law relating to the rules governing certification of the proposed class, I would vacate and remand.

.With respect to Keppley's federal claims under Title III, I note that 18 U.S.C. § 2520(a) permits a civil action for damages only where a person's oral communication "is intercepted, disclosed, or intentionally used.” Thus, as with the state claims under section 5725 of the Act, Keppley’s federal claims under Title III require a class definition encompassing all persons who rode the school buses and whose oral communications actually were intercepted.

. Likewise, with respect to the federal claims under Title III, 18 U.S.C. § 2520 does not authorize a civil action for damages based on a civil conspiracy theory.

. I note that Keppley presented the following evidence in support of class certification, but the trial court made no findings of fact or conclusions of law based on this evidence.

Jeffrey Simmons, District Operations Director, testified that the School District decid*1179ed to obtain the surveillance systems for school buses after a fight occurred between a school bus driver and a student. (R.R. at 1187a, 1198a.) I would reasonably infer that, if such an incident were to occur in the future, the School District would like to know what words were exchanged between the bus driver and the student prior to the fight, and the School District would not care if the conversation was private. In fact, with respect to oral communications between students and bus drivers, it appears from a video tape contained in the record that the surveillance system is capable of intercepting any words spoken to a bus driver, or near a bus driver, by a student boarding or exiting a bus. (S.R.R. at lb.) This is obviously because the microphone for the surveillance system is in the front of the bus near the bus driver. (R.R. at 1619a.)

Lyle Bliss, a retired high school principal, testified that he would request that a tape -be made of a school bus run after receiving reports that students were using obscene language on the bus. (R.R. at 1676a.) Certainly, then, if a student used obscene language in speaking privately to the bus driver, the School District expected the surveillance system to record the obscene language so that the tape could be used to justify disciplining the student. In fact, the record contains questionnaires completed either by students or parents indicating that the School District has disciplined students for cursing on the bus, (R.R. at 426a), for making inappropriate comments about the bus driver, (R.R. at 474a), and for using foul language, (R.R. at 476a). Moreover, in each instance, the School District played the tape from the particular bus for the student or parents to justify the discipline. (R.R. at 426a, 474a, 476a.)

. The majority does not specifically address the civil conspiracy claim in Count XXV.

. I note that the rules governing class certification in federal court differ from those in Pennsylvania. See Rule 23 of the Federal Rules of Civil Procedure; Pa. R.C.P. Nos. 1702, 1708, 1709, Explanatory Comment— 1977 (comparing and contrasting Pennsylvania rules and federal Rule 23). Here, I submit only that the trial court failed to make adequate findings and conclusions with respect to the state civil conspiracy claim.

. I note that the merits of the class action cannot be considered at the class certification stage of the proceedings. Pa. R.C.P. No. 1707, Explanatory Comment — 1977. Because the class certification hearing occurs after the close of the pleadings, the court must have disposed of any demurrers attacking the substance of the complaint. Id.

. To the extent the majority concludes that Keppley lacks and cannot acquire financial resources to protect the interests of the class, the majority has made its own findings of fact.

. The trial court found that Keppley would not adequately represent the class because she lacks the "eagerness and enthusiasm” to pursue her claims. (Trial ct.’s Conclusions of Law, No. 33.) However, this is not the question before us here. The majority states that, under the federal rules governing class actions, the plaintiff must have the “incentive to represent the claims of the class vigorously.” (See majority op. at 15.) However, at this point, we are not dealing with a federal claim.