J. Winig v. The Office of the D.A. of Philadelphia ( 2023 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Winig, :
Appellant :
:
v. : No. 1423 C.D. 2021
: Argued: November 14, 2022
The Office of the District Attorney :
of Philadelphia, Lawrence S. Krasner, :
Esquire, Branwen McNabb, Esquire, :
Michelle Michelson, Esquire, :
William Burrows, Esquire and :
Helen Park, Esquire :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge (P.)
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: February 24, 2023
Jason Winig (Winig) appeals the June 21, 2021 order of the Court of
Common Pleas of Philadelphia County (trial court) sustaining the Office of the
District Attorney of Philadelphia’s, Lawrence S. Krasner’s, Branwen McNabb’s,
Michelle Michelson’s, William Burrows’s, and Helen Park’s (collectively,
Prosecutors) preliminary objections (Prosecutors’ POs) to Winig’s Amended
Complaint (Complaint). In Winig’s Complaint, he sought damages against
Prosecutors for alleged violations of Pennsylvania’s Wiretapping and Electronic
Surveillance Control Act, 18 Pa. C.S. §§ 5701-5782 (Wiretap Act), and an invasion
of privacy claim. In Prosecutors’ POs, Prosecutors asserted Winig’s claims were
barred by prosecutorial and high public official immunity. Additionally,
Prosecutors contended Winig’s invasion of privacy claim was barred by the statute
of limitations.1 For the following reasons, we affirm the trial court’s order.
BACKGROUND
From January 2011 until August 2019, Winig and Jessica Braverman
(Interceptor) were married. Reproduced Record (R.R.) at 21a. During their
marriage, Interceptor recorded various conversations between Interceptor and
Winig without Winig’s knowledge or consent (Recordings). Id. In March 2018,
Interceptor reported Winig for domestic violence to the Philadelphia Police
Department. Id. In support of her report, Interceptor provided the Recordings to
the police and, ultimately, Prosecutors. Id. at 22a. Based on the evidence in the
Recordings, Prosecutors authorized Winig’s arrest. Id. at 22a-23a. Winig’s arrest
resulted in the case of Commonwealth v. Winig, docketed at No. CP-XX-XXXXXXX-
2018, which was ultimately nolle prossed, before the trial court (Criminal Action).
In his Complaint, Winig outlined the various instances in which Prosecutors
used or disclosed excerpts from the Recordings between July 2018 and January
2019. They were as follows: Prosecutors referenced and quoted the Recordings
during the preliminary hearing in the Criminal Action. R.R. at 24a. Prosecutors
referenced and quoted the Recordings in their response to Winig’s motion to quash
the return of transcript and in the hearing that followed in the Criminal Action. Id.
Prosecutors referenced and quoted the Recordings in their response to Winig’s
1
In its June 21, 2021 order, the trial court dismissed Winig’s Complaint on Prosecutors’ POs
asserting prosecutorial and high public official immunity only, and it did not address
Prosecutors’ PO regarding the statute of limitations. However, the trial court addressed the
statute of limitations in its Pa.R.A.P. 1925(a) Opinion.
2
motion to compel the surrender of Winig’s phone and in the hearing that followed
in the Criminal Action. Id. Prosecutors referenced and quoted the Recordings in
their motion to admit evidence of other acts and in the hearing that followed in the
Criminal Action. Id. at 25a. Prosecutors referenced and quoted the Recordings in
their response to Winig’s pretrial motions and in the hearing that followed in the
Criminal Action. Id.
In April 2019, the trial court issued findings of fact and determined, as a
matter of law, that Interceptor’s Recordings were created in violation of the
Wiretap Act. Id. at 26a. The trial court prohibited Prosecutors from using the
Recordings as evidence against Winig at the trial in the Criminal Action. Id. After
the trial court’s ruling, Prosecutors withdrew the criminal charges against Winig.
Id.
After Prosecutors withdrew the criminal charges, Winig filed his Complaint
alleging Prosecutors knew or should have known the Recordings were obtained in
violation of the Wiretap Act and that their use and disclosure of the contents of the
Recordings were in violation of the Wiretap Act. Id. Winig asserted Prosecutors
were not immune from liability because the Wiretap Act expressly waives
sovereign immunity. Id. at 23a. Winig claimed that because of Prosecutors’
intentional use of the Recordings, he suffered damages including embarrassment,
humiliation, injury to his right to privacy, and harm to his reputation. Id.
Additionally, Winig claimed that Prosecutors’ use of the Recordings was an
invasion of his right to privacy as Prosecutors “intentionally intruded upon the
solitude or seclusion of [Winig, and], his private affairs and concerns” and such
intrusion “would be highly offensive to a reasonable person.” Id. at 29a.
3
In response, Prosecutors filed Prosecutors’ POs in the nature of a demurrer
asserting Prosecutors were entitled to absolute prosecutorial immunity, high public
official immunity, and litigation privilege. R.R. at 39a. Additionally, Prosecutors
demurred alleging Winig’s Complaint failed to plead sufficient facts to state a
cause of action under the Wiretap Act or for invasion of privacy. Id. at 40a.
Finally, Prosecutors asserted Winig’s claim alleging invasion of privacy was
barred by the one-year statute of limitations. Id. at 41a.
In June 2021, the trial court sustained Prosecutors’ POs on the grounds of
prosecutorial and high public official immunity and dismissed Winig’s Complaint.
Trial Ct. Order, June 21, 2021. In its Pa.R.A.P. 1925(a) Opinion, the trial court
acknowledged the Wiretap Act waives sovereign immunity for purposes of civil
claims, but concluded there is a “significant distinction between sovereign
immunity, the subject matter of Section 5725(b) of the Wiretap Act, [18 Pa. C.S. §
5725(b),] and high public official and prosecutorial immunity, a separate and
distinct category of immunity.” Trial Ct. Opinion, December 21, 2021, at 2. The
trial court noted that “[h]igh public official immunity is a ‘long-standing category
of common law immunity that acts as an absolute bar to protect high public
officials from lawsuits arising out of actions taken in the course of their official
duties and within the scope of their authority.’ Doe v. Franklin [Cnty.], 174 A.3d
593, 603 (Pa. 2017).” Id. at 5. The trial court concluded a plain reading of Section
5725(b) of the Wiretap Act confirms the legislature intended to bar sovereign
immunity and did not intend to abrogate high public official or prosecutorial
immunity. Id.
Additionally, the trial court overruled Winig’s POs to Prosecutors’ POs
concluding that while an affirmative defense is generally to be pled in a new
4
matter, it may be raised in POs where it is established on the face of the complaint.
Id. The trial court noted that a civil suit alleging invasion of privacy has a one-year
statute of limitations. Id. The trial court concluded that because Prosecutors used
the Recordings in various hearings and filings between July 2018 and January
2019, the latest date Winig’s alleged injury would have commenced was January
2019. Id. Because Winig did not commence his civil action until June 2020, the
trial court determined his invasion of privacy claim was untimely. Id. Winig filed
this appeal.
ARGUMENTS ON APPEAL
On appeal, Winig argues the trial court erred in sustaining Prosecutors’ POs
in the nature of a demurrer based upon prosecutorial and high public official
immunity when Section 5725(b) of the Wiretap Act expressly abrogates those
immunities. Winig’s Br. at 4. Winig contends the trial court erred in limiting the
scope of the term sovereign immunity in Section 5725(b) of the Wiretap Act
because it rendered the waiver provision meaningless. Id. Finally, Winig argues
the trial court erred in dismissing his Complaint when facts may have been
developed in discovery to establish Prosecutors’ conduct was so egregious that
they exceeded the scope of their official duties and abused their prosecutorial
discretion. Id.
In response, Prosecutors argue the trial court correctly concluded absolute
prosecutorial immunity and high public official immunity barred Winig from
receiving damages under the Wiretap Act. Prosecutors’ Br. at 7. Specifically,
Prosecutors assert they used the Recordings within the scope of their duties to
initiate a criminal case against Winig and litigate pretrial evidentiary issues. Id. at
6. Additionally, Prosecutors indicate they had a good faith belief that the
5
Recordings did not violate the Wiretap Act when they used the Recordings in the
Criminal Action. Id.
DISCUSSION
Our review of the trial court’s orders sustaining Prosecutors’ POs and
dismissing Winig’s Complaint is limited to a determination of whether the trial
court abused its discretion or committed an error of law. In re Est. of Bartol, 846
A.2d 209 (Pa. Cmwlth. 2004). Where a preliminary objection presents a question
of law, such as objections related to issues of immunity and statutory
interpretation, the standard of review is de novo and the scope of review is plenary.
Russo v. Allegheny Cnty., 125 A.3d 113 (Pa. Cmwlth. 2015). In reviewing the
preliminary objections, we consider as true “all well[-]pleaded relevant and
material facts.” McGriff v. Pa. Bd. of Prob. & Parole, 809 A.2d 455, 458 (Pa.
Cmwlth. 2002). Preliminary objections shall only be sustained “when they are free
and clear from doubt.” Id.We consider Prosecutors’ POs. In Prosecutors’ POs, Prosecutors assert
demurrers, under Pennsylvania Rule of Civil Procedure 1028(a)(4), Pa.R.Civ.P.
1028(a)(4),2 arguing Prosecutors are entitled to absolute prosecutorial and high
public official immunity from the actions set forth in the Complaint seeking
damages for Prosecutors’ alleged violations of the Wiretap Act and invasion of
privacy.
Under the Wiretap Act, it is unlawful for any person to (1) intentionally
intercept any wire, electronic, or oral communication; (2) intentionally disclose the
contents of any wire, electronic, or oral communication, or evidence derived from
2
Rule 1028(a)(4) provides that preliminary objections may be filed by a party to a pleading on
the grounds of legal insufficiency of the pleading. Pa.R.Civ.P. 1028(a)(4).
6
the communication, knowing the information was obtained through an
interception; or (3) intentionally use the contents of any wire, electronic, or oral
communication, or evidence obtained from the communication, knowing or having
reason to know, that the information was obtained through an interception. 18 Pa.
C.S. § 5703.
The Wiretap Act establishes a civil cause of action for violations of its
provisions. Section 5725(a) states
[a]ny person whose . . . communication is intercepted, disclosed or
used in violation of this chapter shall have a civil cause of action
against any person who intercepts, discloses or uses . . . such
communication; and shall be entitled to recover from any such person:
(1) Actual damages, but not less than liquidated damages
computed at the rate of $100 a day for each day of violation, or
$1,000, whichever is higher.
(2) Punitive damages.
(3) A reasonable attorney’s fee and other litigation costs
reasonably incurred.
18 Pa. C.S. § 5725(a) (emphasis added). Notably, “[i]t is a defense to a[ civil
action brought under the Wiretap Act] that the actor acted in good faith reliance on
a court order or the provisions of this chapter.” 18 Pa. C.S. § 5725(c).
The Wiretap Act also establishes a separate cause of action for removal from
office under Section 5726. 18 Pa. C.S. § 5726. Section 5726(a) provides that
[a]ny aggrieved person shall have the right to bring an action in
Commonwealth Court against any investigative or law enforcement
officer, public official or public employee seeking the officer’s,
official’s or employee’s removal from office or employment on the
grounds that the officer, official or employee has intentionally
violated the provisions of this chapter. If the court shall conclude that
such officer, official or employee has in fact intentionally violated the
7
provisions of this chapter, the court shall order the dismissal or
removal from office of said officer, official or employee.
Id. Section 5726(b) creates a defense to an action brought under the Wiretap Act if
the actor acted “in good faith reliance on a court order or the provisions of this
chapter.” Id.
The Wiretap Act defines “person” as “[a]ny employee, or agent of the
United States or any state or political subdivision thereof, and any individual,
partnership, association, joint stock company, trust or corporation.” 18 Pa. C.S. §
5702. The Wiretap Act separately defines “investigative or law enforcement
officer” as:
Any officer of the United States, of another state or political
subdivision thereof or of the Commonwealth or political subdivision
thereof, who is empowered by law to conduct investigations of or to
make arrests for offenses enumerated in this chapter or an equivalent
crime in another jurisdiction, and any attorney authorized by law to
prosecute or participate in the prosecution of such offense.
Id. (emphasis added).
“Oral communication” is any “oral communication uttered by a person
possessing an expectation that such communication is not subject to interception
under circumstances justifying such expectation.” Id. An “intercept” is:
Aural or other acquisition of the contents of any wire, electronic or
oral communication through the use of any electronic, mechanical or
other device. The term shall include the point at which the contents of
the communication are monitored by investigative or law enforcement
officers. The term shall not include the acquisition of the contents of a
communication made through any electronic, mechanical or other
device or telephone instrument to an investigative or law enforcement
officer, or between a person and an investigative or law enforcement
officer, where the investigative or law enforcement officer poses as an
actual person who is the intended recipient of the communication,
provided that the Attorney General, a deputy attorney general
designated in writing by the Attorney General, a district attorney or an
8
assistant district attorney designated in writing by a district attorney of
the county wherein the investigative or law enforcement officer is to
receive or make the communication has reviewed the facts and is
satisfied that the communication involves suspected criminal activities
and has given prior approval for the communication.
Id.
In Section 5717, the Wiretap Act addresses law enforcement officers’ use
and disclosure of communications under the Wiretap Act. Section 5717 states:
(a) Law enforcement personnel.--Any investigative or law
enforcement officer who, under subsection (a.1), (b), (b.1) or (c), has
obtained knowledge of the contents of any wire, electronic or oral
communication, or evidence derived therefrom, may disclose such
contents or evidence to another investigative or law enforcement
officer to the extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or receiving
the disclosure.
(a.1) Use of information.--Any investigative or law enforcement
officer who, by any means authorized by this subchapter, has obtained
knowledge of the contents of any wire, electronic or oral
communication or evidence derived therefrom may use such contents
or evidence to the extent such use is appropriate to the proper
performance of his official duties.
(b) Evidence.--Any person who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
electronic or oral communication, or evidence derived therefrom, may
disclose such contents or evidence to an investigative or law
enforcement officer and may disclose such contents or evidence while
giving testimony under oath or affirmation in any criminal proceeding
in any court of this Commonwealth or of another state or of the
United States or before any state or Federal grand jury or investigating
grand jury.
(b.1) Criminal cases.--Any person who by means authorized by
section 5704(17) (relating to exceptions to prohibition of interception
and disclosure of communications) has obtained knowledge of the
contents of any wire, electronic or oral communication, or evidence
derived therefrom, may in addition to disclosures made under
subsection (b) disclose such contents or evidence, on the condition
9
that such disclosure is made for the purpose of providing exculpatory
evidence in an open or closed criminal case.
18 Pa. C.S. § 5717 (emphasis added).
Turning to the issue of immunity, Section 5725(b) of the Wiretap Act
specifically indicates “[t]o the extent that the Commonwealth and any of its
officers, officials or employees would be shielded from liability under this section
by the doctrine of sovereign immunity, such immunity is hereby waived for the
purposes of this section.” 18 Pa. C.S. § 5725(b) (emphasis added). Thus, the
Wiretap Act expressly waives sovereign immunity.
Prosecutors concede the Wiretap Act waives sovereign immunity, but assert
they maintain high public official and prosecutorial immunity. High public official
immunity is a category of common law immunity that acts as an absolute bar to
protect high public officials from lawsuits arising out of actions taken in the course
of their official duties and within the scope of their authority. Doe v. Franklin
Cnty., 174 A.3d at 603. “Governmental immunity is an absolute defense” and is
not subject to any exception “beyond th[ose] exceptions granted by the
legislature.” Zauflik v. Pennsbury Sch. Dist., 72 A.3d 773, 797 (Pa. Cmwlth. 2013).
The scope of high public official immunity is very broad as “[a]bsolute privilege,
as its name implies, is unlimited and exempts a high public official from all civil
suits for damages arising out of . . . actions . . . provided the . . . actions are taken
in the course of the official’s duties or powers and within the scope of his
authority, or as it is sometimes expressed, within his jurisdiction.” Durham v.
McElynn, 772 A.2d 68, 69 (Pa. 2001). The Supreme Court has “never called into
question, much less overruled, the common law doctrine of absolute privilege for
high public officials.” Lindner v. Mollan, 677 A.2d 1194, 1196 (Pa. 1996).
“[A]bsolute immunity from civil liability for high public officials is the only
10
legitimate means of removing any inhibition which might deprive the public of the
best service of its officers and agencies.” Doe v. Franklin Cnty., 174 A.3d at 603.
In Pennsylvania, high public official immunity has been held to apply to
district attorneys. The public interest requires district attorneys be able to carry out
their duties without being hampered by civil suits for actions taken in their official
capacities. Durham, 772 A.2d at 69-70. “The public would indeed suffer if the
prosecution of criminals were impeded, as would be the case if district attorneys
were not accorded absolute immunity.” Id. at 69-70. Similarly,
[a]ssistant district attorneys . . . are essential to district attorneys in
fulfilling responsibilities of their high public offices . . . in carrying
out the prosecutorial function. To subject assistant district attorneys
acting on behalf of the district attorney to liability would deter all but
the most courageous and most judgment-proof from vigorously
performing their prosecutorial functions, and would inevitably result
in criminals going unpunished.
Id. at 70 (internal citations omitted). The public has an interest in seeing assistant
district attorneys are not impeded in the performance of their important duties and
that interest “dictates that assistant district attorneys be immune from suit.” Id.
Therefore, as prosecuting attorneys, Prosecutors have high public official
immunity.
The question we must address is whether Prosecutors’ high public official
immunity has been waived for purposes of alleged Wiretap Act violations. In
considering this, we are mindful that we must construe exceptions to immunity
strictly. Doe v. Franklin Cnty., 174 A.3d at 607-08. We may find immunity has
been waived only where waiver is expressly stated by the General Assembly. Id.
The Pennsylvania Supreme Court has held that where the General Assembly does
11
not “specifically and intentionally abrogate high public official immunity[,]” a
finding of implicit abrogation is not supported by the law. Id. at 608.
Here, Section 5725(b) of the Wiretap Act specifies “[t]o the extent the
Commonwealth and any of its officers, officials or employees would be shielded
from liability under this section by the doctrine of sovereign immunity, such
immunity is hereby waived for the purposes of this section.” 18 Pa. C.S. § 5725(b)
(emphasis added). While sovereign immunity is expressly and specifically waived
in Section 5725, the statute remains silent as to the waiver of any other form of
immunity, including high public official immunity or prosecutorial immunity.
Thus, we must consider whether the General Assembly intended to abrogate high
public official immunity for prosecutors by expressly waiving sovereign immunity.
The best indication of legislative intent is the plain language of the statute.
Commonwealth v. Shiffler, 879 A.2d 185, 189 (Pa. 2005). We look to the plain
language of the Wiretap Act to determine the General Assembly’s intent regarding
its immunity waiver. See 1 Pa. C.S. § 1921(b) (“When the words of a statute are
clear and free from all ambiguity, the letter of it is not to be disregarded under the
pretext of pursuing its spirit.”).
In considering the plain language of the Wiretap Act, we look to the Wiretap
Act’s defined terms. While “person” is defined as “[a]ny employee, or agent of the
United States or any state or political subdivision thereof[,]” 18 Pa. C.S. § 5702,
the General Assembly chose to separately and specifically define “law
enforcement officer” as “[a]ny officer of the United States, of another state or
political subdivision thereof . . . who is empowered by law to conduct
investigations of or to make arrests for offenses enumerated in this chapter . . . and
any attorney authorized by law to prosecute or participate in the prosecution of
12
such offense.” Id. While law enforcement officers would fall under the definition
of “persons” under the Wiretap Act, the General Assembly chose to carve out a
separate definition to address those individuals. If the General Assembly intended
to abrogate otherwise applicable immunity for “law enforcement officers,” it could
have used the defined term in Section 5725. However, it makes no mention of law
enforcement officers in Section 5725 where it addresses civil liability.
Instead, the General Assembly provided additional sections which address
law enforcement officers under the Wiretap Act. In the next section, Section 5726,
the Wiretap Act provides a specific cause of action for a law enforcement officer’s
intentional violation of the provisions of the Wiretap Act. Section 5726 states that
an aggrieved party has the right to bring an action against an investigative or law
enforcement officer seeking the officer’s removal from office because of the
officer’s intentional violation of the Wiretap Act. 18 Pa. C.S. § 5726. Notably,
consistent with the doctrine of high public official immunity, this section makes no
mention of permitting a party to sue for damages in a suit against law enforcement
officers.
Additionally, in Section 5717, the General Assembly specified that a law
enforcement officer who obtains knowledge, by any authorized means, of the
contents of any oral communication may use the contents to the extent such use is
appropriate to the proper performance of the officer’s official duties. 18 Pa. C.S. §
5717. We look at our Pennsylvania Supreme Court’s decision in Karoly v.
Mancuso, 65 A.3d 301, 308 (Pa. 2013), in which the Court interpreted this section
of the Wiretap Act. The facts of Karoly are as follows. A defense attorney
accused a county detective and an assistant district attorney of violations of the
Wiretap Act. Id. The county detective and assistant district attorney were
13
investigating two individuals for theft and drug-related offenses. Id. One of the
individuals was defense attorney’s client, while the other was the client’s
paramour, who was incarcerated. Id. During the investigation, the client’s
incarcerated paramour called the client, who was with the defense attorney. Id.All three parties took part in the telephone conversation, which the jail recorded.
Id. As part of his investigation, the county detective obtained the recorded
telephone conversation and played it for members of the district attorney’s office.
Id. Based on the contents of the recorded conversations, the assistant district
attorney filed a motion with the court requesting defense counsel be disqualified
from representing his client. Id. The assistant district attorney’s motion and brief
included quoted excerpts from the recorded telephone conversations. Id. The
assistant district attorney did not file the motion or the subsequent brief under seal
and, therefore, both became publicly accessible. Id.In response, the defense attorney filed a complaint for removal from public
office against the county detective and the assistant district attorney alleging
multiple violations of the Wiretap Act. Id. Most notably, for our purposes, the
defense attorney contended that the assistant district attorney violated Section
5703(2) of the Wiretap Act, making it unlawful to use or disclose to another person
the contents of any intercepted communication, by disclosing the recorded
conversations in his legal filings, which were not placed under seal. Id.The Court analyzed this issue indicating:
A [law enforcement officer] may only use intercepted
communications as necessary “to the proper performance of his
official duties.” 18 Pa.C.S. § 5717(a.1). Likewise, subsection 5717(a)
provides that information obtained under subsection (a.1) or (b) may
only be disclosed to other investigative or law enforcement officers,
and only to the extent that such disclosure is appropriate to the official
14
duties of the officer making or receiving the disclosure. See 18
Pa.C.S. § 5717(a).
The close observance of these statutory restrictions is especially
important where private conversations are overheard by governmental
authorities. This Court has expressed that the Wiretap Act is to be
strictly construed to protect individual privacy rights. It is against this
background that courts should assess whether investigative and law
enforcement authorities have complied with the limitations imposed
by the [Wiretap Act], including the limitations on use and disclosure
appearing in Section 5717.
There is little doubt [the detective] properly used the tapes of the
intercepted conversation by listening to them and playing them for
prosecuting attorneys in the [district attorney’s office]. This conduct
was consistent with his investigative function and constituted a
“disclosure . . . to another investigative or law enforcement officer” as
allowed under Section 5717(a) . . . . [The assistant district attorney’s]
subsequent use of the conversation in an effort to have [the defense
attorney] disqualified from further representing [his client] and to
compel him to reveal [his client’s] whereabouts was likewise within
the proper performance of his duties.
Karoly, 65 A.3d at 310-11.
Based on a plain reading of Section 5717 and our Supreme Court’s
application of it to law enforcement officers, including prosecuting attorneys, the
General Assembly intended for law enforcement officers to be permitted to use
information that may otherwise be in violation of the Wiretap Act, so long as it is
necessary to the “proper performance of his official duties.” 18 Pa. C.S. §
5717(a.1). By carving out these acceptable use and disclosure provisions for law
enforcement officers, the General Assembly specifically excluded law enforcement
officers from liability under the Wiretap Act when their use or disclosure is done in
the performance of their official duties.
The General Assembly did not provide a clear and unequivocal basis for
civil suits against law enforcement officers, such as Prosecutors, when it enacted
15
Section 5725 of the Wiretap Act. In fact, by separately providing for acceptable
use and disclosure provisions for law enforcement officers under Section 5717, and
by separately providing a remedy of removal of a law enforcement officer who
intentionally violates the Wiretap Act under Section 5726, the General Assembly
has evidenced an intention to treat law enforcement officers uniquely under the
Wiretap Act. Our review of the Wiretap Act does not support a conclusion that the
General Assembly intended to abrogate high public official immunity for law
enforcement officers. Because the General Assembly did not specifically and
intentionally abrogate high public official immunity, Prosecutors maintain high
public official immunity and may not be held liable under Section 5725 of the
Wiretap Act for their use of the Recordings within the performance of their duties
prosecuting Winig in the Criminal Action. Therefore, the trial court did not abuse
its discretion or commit an error of law when it sustained Prosecutors’ POs.
CONCLUSION
For the reasons addressed above, we affirm the trial court’s June 21, 2021
order sustaining Prosecutors’ POs.3
______________________________
STACY WALLACE, Judge
3
We are aware of the Pennsylvania Superior Court’s recent decision in Chiles v. Miller, ___
A.3d ___ (Pa. Super., No. 45 EDA 2022, filed January 6, 2023), and, while this Court may look
to a decision of the Superior Court for its persuasive value, its decisions are not binding on this
Court. A.S. v. Pa. State Police, 87 A.3d 914, 919 (Pa. Cmwlth. 2014), aff’d, 143 A.3d 896 (Pa.
2016). We find the facts of this case are distinguishable from the facts of Chiles as the
prosecuting attorney in Chiles disclosed the contents of the intercepted communication to civil
attorneys. The disclosure was not in the course of the prosecuting attorney’s official duties.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jason Winig, :
Appellant :
:
v. : No. 1423 C.D. 2021
:
The Office of the District Attorney :
of Philadelphia, Lawrence S. Krasner, :
Esquire, Branwen McNabb, Esquire, :
Michelle Michelson, Esquire, :
William Burrows, Esquire and :
Helen Park, Esquire :
ORDER
AND NOW, this 24th day of February 2023, the Court of Common
Pleas of Philadelphia County’s June 21, 2021 order sustaining The Office of the
District Attorney of Philadelphia’s, Lawrence S. Krasner’s, Branwen McNabb’s,
Michelle Michelson’s, William Burrows’s, and Helen Park’s (collectively,
Philadelphia District Attorney’s Office) preliminary objections is AFFIRMED.
Accordingly, the Philadelphia District Attorney’s Office’s Application for Leave
of Court to File a Response to Appellant’s Post-Submission Communication filed
January 18, 2023, is DISMISSED as moot.
______________________________
STACY WALLACE, Judge