385 F. Supp. 3d 384
E.D. Pa.2019Background
- Peruto (judge Brinkley's counsel) gave a filmed interview for a #FreeMeek documentary; after the on-camera portion ended the camera was turned off but a lavalier microphone continued recording.
- While attempting to remove the mic, Peruto made candid, disparaging off-camera remarks about his client that he did not intend for publication; those remarks were later leaked and publicized.
- Peruto sued under the Pennsylvania Wiretap Act and the Federal Wiretap Act (and pursued related replevin claims); defendants removed and moved to dismiss, which the court converted to summary judgment after authenticating the audio.
- Audio-authentication experts confirmed the recording is authentic and unedited; Peruto never asked to go “off the record” on the recording.
- Court found the material facts undisputed and granted summary judgment for defendants: (1) Peruto lacked a legally reasonable expectation of privacy under Pennsylvania law; and (2) no evidence defendants recorded with tortious intent so the Federal one-party consent rule governs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Violation of Pennsylvania Wiretap Act (illegal interception/disclosure) | Peruto: the interview had ended and he reasonably expected recording stopped; he spoke off the record | Defs: Peruto never asked to go off the record, had recording equipment present, signed a release, and his expectation was not reasonable | Court: No objectively reasonable expectation of privacy under Agnew; summary judgment for defendants |
| Federal Wiretap Act exception (interception to commit tort) | Peruto: defendants recorded to later present him in a false light (by selective editing/implication) | Defs: recording is authentic and unedited; one-party consent suffices absent tortious intent | Court: Peruto failed to show intent to commit a tort (false light); one-party consent applies; summary judgment for defendants |
| Authenticity / editing of recording | Peruto: alleged editing/deletion that created misleading impression | Defs: recording is authentic; experts confirm no editing | Court: Experts authenticated the audio; no dispute of authenticity |
| Need for further discovery | Peruto: discovery (depositions, contracts) needed to develop tort intent theory | Defs: existing record is dispositive; discovery would not cure defects in claims | Court: denied broader discovery as unnecessary; summary judgment appropriate |
Key Cases Cited
- Agnew v. Dupler, 717 A.2d 519 (Pa. 1998) (Pennsylvania Wiretap Act requires speaker to have a reasonable expectation of privacy to claim interception)
- Kelly v. Borough of Carlisle, 622 F.3d 248 (3d Cir. 2010) (discussing Agnew's requirement that expectation of non-interception aligns with expectation of privacy)
- Graboff v. Colleran Firm, 744 F.3d 128 (3d Cir. 2014) (elements of false light under Pennsylvania law)
- Celotex Corp. v. Catrett, 477 U.S. 317 (U.S. 1986) (summary judgment standard)
- Pa. State Police v. Grove, 161 A.3d 877 (Pa. 2017) (no reasonable expectation of privacy where conversations could be seen or overheard)