Karoly v. Mancuso

CONCURRING AND DISSENTING OPINION

Justice EAKIN.

.1 agree with the majority that the restrictions contained in § 5714(b) are not implicated by the underlying events. I agree Detective Kerchner’s disclosure of the recorded conversations to the district attorney’s office was proper under § 5717(a), and that ADA Mancuso’s use of the conversation to have appellant disqualified was proper under § 5717(a.l). As a general proposition, I agree the “use” permitted under subsection (a.l) is broader than the “disclosure” permitted under subsection (a), and that “any such use should be as consistent as is practicable with Section 5717(a)’s narrow restrictions on disclosure — that is, the disclosure should not exceed that which is essential to the effective use.” See Majority Op., at 312.

*316This general limiting of disclosure is necessarily aspirational, however, as what is “practicable” is necessarily a subjective term.1 The consequences for not accomplishing the least possible disclosure should accordingly reflect some proportionality between act and consequence; only the most serious intentional breach should result in the punitive result of removal from office. We must remember the present matter is not a request for civil damages or suppression of evidence, but a complaint seeking to remove the ADA and police officer from their employment, a drastic and radical remedy. Such a remedy should be reserved for egregious and purposeful violations, not a finding that the use was proper but in hindsight, a better procedure could have lessened the disclosure.

Nothing in the Wiretap Act required ADA Mancuso to file his motion or brief under seal. The legislature obviously knew such material would be used in court documents making it a matter of public record. The legislature also understood how to require a sealed filing, as it provided for sealing of records in other portions of the Act. See 18 Pa.C.S. § 5714(b) (sealing of records).2 As the legislature did not provide for a sealed filing under this section, the failure to request sealing does not comprise an intentional violation. A request to seal might indeed have limited disclosure, but that does not make any other course of action an intentional violation.

The remedy sought here is so far out of line with the empirical motivations behind disclosure that it is disproportionate to the point of being inapplicable. It is not insignificant that the conversations disclosed did not prejudice either accused — the use and resulting disclosure involved protecting their rights to independent counsel and real conflict of interest concerns, a motivation not born of intent to violate the law.

“The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). As a general rule, the best indication of the General Assembly’s intent in enacting a statute may be found in its plain language. Martin v. Commonwealth, Department of Transportation, Bureau of Driver Licensing, 588 Pa. 429, 905 A.2d 438, 443 (2006).

In this regard, “it is not for the courts to add, by interpretation, to a statute, a requirement which the legislature did not see fit to include.” Commonwealth v. Rieck Investment Corp., 419 Pa. 52, 213 A.2d 277, 282 (1965). Consequently, “[a]s a matter of statutory interpretation, although one is admonished to listen attentively to what a statute says; one must also listen attentively to what it does not say.” Kmonk-Sullivan v. State Farm Mutual Automobile Insurance Co., 567 Pa. 514, 788 A.2d 955, 962 (2001) (internal quotations omitted); see also Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001) (“[A] court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope.”).

*317Commonwealth v. Johnson, 611 Pa. 381, 26 A.3d 1078, 1090 (2011); see also Majority-Op., at 314 (citing 1 Pa.C.S. § 1921(b)) (“statute’s clear language may not be disregarded to pursue its ‘spirit’ ”). Under § 5726, the court must “conclude that such officer, official or employee has in fact intentionally violated the provisions of this chapter,” 18 Pa.C.S. § 5726(a) (emphasis added), and it is a defense if “the actor acted in good faith reliance on a court order of the provisions of the chapter.” Id., § 5726(b). As the Commonwealth Court made no finding of an intentional violation, reviewing the question of good faith is unnecessary. That is, assuming provisions of the statute were violated, there needs to be a finding the violation was intentional before good faith becomes an issue — it is a basic premise of law that until there is proof by the moving party of the facts it alleges, there is no need to reach the issue of a defense. Appellant alleges an intentional violation of the relevant Act — until there is evidence that the disclosure here was. intentionally beyond the practicable limits, examining good faith is unnecessary.

The majority also directs the Commonwealth Court to reassess whether appel-lees revealed confidential attorney-client discussions. As the conversation at issue was not subject to the attorney-client privilege, discussion of the phrase “an attorney” seems unnecessary in light of the manifest legislative intent. The statutory language reads, in full, “[s]o as to safeguard the attorney-client privilege, the county correctional facility shall not intercept, record, monitor or divulge any conversation between an inmate and an attorney.” 18 Pa.C.S. § 5704(14)(ii) (emphasis added).

Certainly the legislature did not mean anything said to any attorney is protected — there is no indication the legislature wished to create a new and limitless privilege for all things said to anyone with a law degree. If such was its radical purpose, the legislature would (1) have said so expressly, and (2) not enunciated such a discrete purpose, that of safeguarding the existing privilege. Thus, the appropriate inquiry is whether the conversation between appellant and Goldstein was subject to the attorney-client privilege, which it was not. The Commonwealth Court noted:

[T]he record clearly reflects that Gold-stein was represented by another attorney, Erie Dowdle, during her bail revocation hearing, only a day or two before the conversation at issue and, in the conversation itself, [appellant] repeatedly and clearly states that he cannot represent, or be seen to direct the representation of, Goldstein.

Karoly v. Mancuso, No. 622 M.D. 2005, unpublished memorandum at 15 (Pa.Cmwlth. filed April 3, 2012).

Based on appellant’s own declarations he was not Goldstein’s attorney, the conversation was not subject to the attorney-client privilege. See In re Investigating Grand Jury, 887 A.2d 257, 259 (Pa.Super.2005) (“[L]egal matters discussed between an attorney and someone seeking legal advice are privileged unless it is clear that there is no lawyer-client relationship and it is just a casual conversation.”). Even if appellant could somehow be considered Goldstein’s attorney at that time, it is well established that “[a] communication between attorney and client made in the presence of a third person is not privileged.” In re Estate of Beisgen, 387 Pa. 425, 128 A.2d 52, 54 (1956) (quoting In re Estate of Burr, 381 Pa. 547, 113 A.2d 712, 714 (1955)).3

*318Based on the foregoing, I would affirm the decision of the Commonwealth Court, and therefore am constrained to offer this respectful dissent.

Justice McCAFFERY joins this concurring and dissenting opinion.

. The ambiguity in the word is most famously expressed in General Robert E. Lee’s orders to General Ewell at the Battle of Gettysburg— Ewell was to take Culp’s Hill "if practicable” without bringing on a general engagement. As a general engagement had surrounded him for several hours, it is undoubtedly the "if practicable” clause that gave Ewell sanction not to attack the hill, to Lee’s great disappointment.

. As discussed by the majority, the requirements of § 5714(b) are not applicable to this case. Majority Op., at 309.

. The co-defendant or common-interest privilege would not apply here and would there*318fore not create an exception to the waiver because: (1) as appellant admits in his brief, Slayton and Goldstein are not co-defendants, Brief of Appellant, at 7; and (2) Slayton and Goldstein do not share a common legal interest, in that one’s innocence will not be of strategic benefit to the other in determining his or her innocence. See In Re: Condemnation by City of Philadelphia, 981 A.2d 391, 396-99 (Pa.Cmwlth.2009) (“Evidence M parties supported each other’s separate efforts by sharing information and/or legal strategy is not evidence that the two shared a common legal interest.’’) (emphasis in original).