Buonocore v. Chesapeake & Potomac Telephone Co.

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan, and
Kinser, JJ., and Gordon, Retired Justice

DANIEL G. BUONOCORE

v. Record No. 962572 OPINION BY JUSTICE BARBARA MILANO KEENAN
October 31, 1997
THE CHESAPEAKE & POTOMAC
TELEPHONE CO. OF VIRGINIA, ET AL.

FROM THE CIRCUIT COURT OF THE CITY OF ROANOKE
Diane McQ. Strickland, Judge

In this appeal, we consider whether Code § 19.2-59 provides an

employee a cause of action against his corporate employer and its

agent who conducted a warrantless search of the employee's home.
In November 1992, Linda Sue Taylor informed David R. Cundiff,

Deputy Sheriff of Franklin County, that her former boyfriend, Daniel

G. Buonocore, possessed illegal firearms in his home. Taylor also

informed Cundiff that Buonocore had taken without authorization

certain items of personal property belonging to his employer, The

Chesapeake and Potomac Telephone Company of Virginia (C&P). 1

Cundiff related this information to Special Agent Donald L. Harris

of the United States Department of the Treasury, Bureau of Alcohol,

Tobacco and Firearms (ATF), and to James D. Thompson, assistant

manager of security for C&P.

Harris obtained a federal warrant to search Buonocore's home

for illegal firearms and invited Thompson to accompany him in the

search. Thompson went with the ATF agents and the sheriff's

deputies to Buonocore's home. Although no property belonging to C&P

was listed in the search warrant, Thompson opened some cabinet doors

and drawers in the home. When he saw several items belonging to C&P
1
C&P is now known as Bell Atlantic-Virginia, Inc.
in the cabinets, Thompson asked Buonocore where he obtained the

items. Buonocore replied, "Maybe I got [them] from work."

Buonocore then asked Thompson to identify himself and, on

learning that Thompson worked for C&P, asked Thompson to leave.

Thompson did not leave, however, because Cundiff told him that he

had a right to be present during the search. At no time did

Thompson or any representative of C&P ask Buonocore for permission

to search his home.
Buonocore filed a motion for judgment against C&P and Thompson

(collectively, C&P) alleging damages resulting from the search,

which he contends was unlawfully conducted in violation of Code

§ 19.2-59. 2 C&P moved for summary judgment on the ground that Code

§ 19.2-59 regulates the conduct of governmental authorities only

and, therefore, did not provide a basis for a cause of action

against C&P. The trial court awarded summary judgment to C&P,

stating that Code § 19.2-59 did not afford Buonocore a cause of

action against a private corporation and its employee.

On appeal, Buonocore argues that the plain language of Code

§ 19.2-59 provides him a cause of action based on C&P's illegal

search of his residence. He contends that the legislature's use of

the phrase "any other person" in describing individuals subject to

the statute's restrictions plainly demonstrates the legislature's

intent to restrict the conduct of governmental agents, private

entities, and individuals. Buonocore also asserts that Durham Bros.
and Co. v. Woodson, 155 Va. 93, 154 S.E. 485 (1930), in which we
2
In his motion for judgment, Buonocore also alleged an action for
trespass. However, that claim was dismissed without prejudice by
nonsuit in accordance with Code § 8.01-380.
interpreted a predecessor statute to Code § 19.2-59, recognized such

a cause of action against a private corporation and its employee.

We disagree with Buonocore's argument.

Initially, we consider Buonocore's contention that the trial

court erred in disposing of the case by summary judgment. A trial

court may enter summary judgment if no material fact is genuinely in

dispute. Rule 3:18. In considering such a motion, the trial court

must adopt those inferences from the facts that are most favorable

to the nonmoving party. Carson v. LeBlanc, 245 Va. 135, 139-40, 427

S.E.2d 189, 192 (1993). Here, however, Buonocore does not contend

that any material facts were disputed, or that the trial court

failed to adopt inferences from the facts that were most favorable

to him. Therefore, we find no merit in Buonocore's objection to the

trial court's use of the summary judgment procedure. See id.

We next consider Buonocore's assertion that Code § 19.2-59

provides a cause of action against C&P. Code § 19.2-59 states, in

relevant part, that
[n]o officer of the law or any other person shall search
any place, thing or person, except by virtue of and under
a warrant issued by a proper officer. Any officer or
other person searching any place, thing or person
otherwise than by virtue of and under a search warrant,
shall be guilty of malfeasance in office. Any officer or
person violating the provisions of this section shall be
liable to any person aggrieved thereby in both
compensatory and punitive damages.

This section proscribes certain conduct by an "officer of the

law or any other person." However, the statute further states that

if such an individual violates this proscription, that person "shall

be guilty of malfeasance in office." This language is ambiguous

because it does not plainly reconcile the use of the term "any other
person" with the term "malfeasance in office."

Since Code § 19.2-59 is ambiguous, we apply settled rules of

statutory construction to determine the legislature's intent in its

use of the language in question. USAA Cas. Ins. Co. v. Alexander,

248 Va. 185, 194, 445 S.E.2d 145, 150 (1994); City of Virginia Beach

v. Bd. of Supervisors, 246 Va. 233, 236, 435 S.E.2d 382, 384 (1993);

Wertz v. Grubbs, 245 Va. 67, 70, 425 S.E.2d 500, 501 (1993). We

will not construe a statute by singling out a particular term or

phrase, but will construe the words and terms at issue in the

context of the other language used in the statute. See City of

Virginia Beach, 246 Va. at 236-37, 435 S.E.2d at 384; Wertz, 245 Va.

at 70, 425 S.E.2d at 501; VEPCO v. Bd. of Supervisors, 226 Va. 382,

387-88, 309 S.E.2d 308, 311 (1983).

Applying these principles, we conclude that Code § 19.2-59 does

not create a cause of action against a private entity or an

individual. Considered as a whole, the statutory language

demonstrates a legislative intent to deter the conduct of only those

individuals who, by virtue of their governmental employment, can be

found guilty of malfeasance in office. This construction is

supported by the fact that, in 1978, the legislature amended Code

§ 19.2-59, removing the word "misdemeanor" and adding in its place

the term "malfeasance in office." Thus, the amendment clarified

that the statute does not apply to private entities and individuals

because only law enforcement officers and other governmental agents

can be found guilty of malfeasance in office.

This construction also comports with the body of case law

holding that Code § 19.2-59 affords only the same substantive
protection as that provided by the Fourth Amendment. See Thims v.

Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 448 (1977); Carter v.

Commonwealth, 209 Va. 317, 320, 163 S.E.2d 589, 592 (1968); One 1963

Chevrolet Pickup Truck v. Commonwealth, 208 Va. 506, 508, 158 S.E.2d

755, 757 (1968); Zimmerman v. Town of Bedford, 134 Va. 787, 801-02,

115 S.E. 362, 366 (1922). The Fourth Amendment prohibition against

unreasonable searches and seizures does not apply to private

individuals acting on their own initiative. United States v.
Jacobsen, 466 U.S. 109, 113 (1984); Harmon v. Commonwealth, 209 Va.

574, 577, 166 S.E.2d 232, 234 (1969).

Here, Thompson did not act at the direction of any law

enforcement officer. Since he searched the cabinets in Buonocore's

home on his own initiative, that search was not conduct proscribed

by the Fourth Amendment or by Code § 19.2-59. See id.

Finally, we disagree with Buonocore's contention that Durham

Bros, 155 Va. at 93, 154 S.E. at 485, requires that we recognize a

cause of action against C&P under Code § 19.2-59. That case was

decided before the 1978 amendment to Code § 19.2-59 clarified that

the only persons covered by the statute are those who can be found

guilty of malfeasance in office.

For these reasons, we will affirm the trial court's judgment.
Affirmed.