          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert C. McCulligan,                   :
                        Petitioner      :
                                        :
                  v.                    :   No. 670 M.D. 2014
                                        :   SUBMITTED: July 24, 2015
Pennsylvania State Police and,          :
Charles Steinmetz, PSP State            :
Trooper, Individual and Official        :
Capacity and, Michael J. Minanno,       :
PSP State Trooper, Individual and       :
Official Capacity and, Anthony J.       :
Spagnoletti, Montgomery County          :
Detective, Individual and Official      :
Capacity and, Walter Zdunowski,         :
Montgomery County Detective,            :
Individual and Official Capacity and,   :
Erick Echevarria, Montgomery            :
County Detective, Individual and        :
Official Capacity,                      :
                          Respondents   :



BEFORE:     HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE JAMES GARDNER COLINS, Senior Judge



OPINION BY
JUDGE LEADBETTER                            FILED: September 10, 2015


            Before us for disposition in our original jurisdiction are the
preliminary objections of 1) the Pennsylvania State Police (PSP) and PSP Troopers
Charles Steinmetz and Michael J. Minanno (PSP Respondents); and 2)
Montgomery County detectives Anthony J. Spagnoletti, Walter Zdunowski, and
Erick Echevarria (Montgomery County Respondents), to the petition for review
filed by pro se Petitioner Robert C. McCulligan.          McCulligan alleges that
Respondents intentionally violated the Wiretapping and Electronic Surveillance
Control Act (Wiretap Act)1 during the course of their October 2003 to January
2004 investigation leading to his incarceration.         We sustain Respondents’
preliminary objections and dismiss McCulligan’s petition for review.
               In December 2014, McCulligan filed his petition averring that
Respondents, without his consent, intercepted oral communications from inside his
home and other places where he could reasonably expect privacy and unlawfully
disseminated them to the public via the media and to persons other than
investigative or law enforcement officers. Petition for Review, ¶¶ 10 and 36. He
alleges that Respondents did so without good faith reliance on a court order,
without the statutorily required Class B certification, without keeping written
records of the intercepted communications, and without maintaining and sealing
the records of those communications. Id. ¶¶ 15, 16, 30 and 32. Accordingly,
McCulligan requests that this Court 1) order a hearing to verify his allegations that
Respondents violated the Wiretap Act and concealed their violations; 2) order the
removal of Respondents from their respective offices and employment pursuant to
Section 5726 of the Wiretap Act, 18 Pa. C.S. § 5726; and 3) award damages,
punitive damages, counsel fees, litigation costs and any other relief deemed just
and proper pursuant to Section 5725 of the Wiretap Act, 18 Pa. C.S. § 5725.
               In April 2015, Respondents filed their respective preliminary
objections to the petition, both maintaining that it should be dismissed due to
McCulligan’s failure to sufficiently allege all of the material facts upon which his

   1
       18 Pa. C.S. §§ 5701-5781, as amended.



                                               2
cause of action was based with the requisite specificity in compliance with Rule
1019(a) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1019(a). In
addition, PSP Respondents contend that McCulligan’s civil cause of action for
statutory money damages under Section 5725 of the Wiretap Act is barred by the
two-year statute of limitations for civil penalties found in Section 5524(5) of the
Judicial Code, as amended, 42 Pa. C.S. § 5524(5). Further, they maintain that
there is no cause of action against an agency under the Wiretap Act in that the
remedies available under Sections 5725 and 5726 lie solely against individuals.
             The Montgomery County Respondents independently maintain that
McCulligan’s claim under Section 5725 of the Wiretap Act should be dismissed
for lack of subject matter jurisdiction pursuant to Rule 1028(a)(1) of the
Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 1028(a)(1), and by virtue of
the fact that the county detectives are not officers of the Commonwealth
government under Section 761(a) of the Judicial Code, 42 Pa. C.S. § 761(a).
Further, contending that state troopers similarly are not officers of the
Commonwealth government, the Montgomery County Respondents assert that
McCulligan’s inclusion of PSP and the two troopers does not bring his claim for
damages within our original jurisdiction because such a claim falls within an
exception to this Court’s original jurisdiction.     In support, they cite Section
761(a)(1)(v) of the Judicial Code, 42 Pa. C.S. § 761(a)(1)(v) and Boettger v.
Miklich, 481 A.2d 972 (Pa. Cmwlth. 1984).           In addition, they maintain that
McCulligan’s inclusion of an action under Section 5726 of the Wiretap Act does
not vest this Court with ancillary jurisdiction over his Section 5725 action. Finally,
where applicable, the Montgomery County Respondents seek to adopt and




                                          3
incorporate by reference the arguments made and authorities cited in PSP
Respondents’ brief.
            In ruling upon preliminary objections in the nature of a demurrer, we
must accept as true all well-pled facts and all reasonable inferences deducible
therefrom, and we must determine whether the facts pled are legally sufficient to
permit the action to continue. Altoona Housing Auth. v. City of Altoona, 785 A.2d
1047, 1050 (Pa. Cmwlth. 2001).        We are not required, however, to accept
conclusions of law or expressions of opinion. Pa. Div., Horsemen’s Benevolent &
Protective Ass’n, Inc. v. Mountainview Thoroughbred Racing Ass’n, 855 A.2d 957,
961 (Pa. Cmwlth. 2004). In that a demurrer results in the dismissal of a suit, it
should be sustained only in cases that are clear and free from doubt and only where
it appears with certainty that the law permits no recovery under the allegations
made. Id. We first turn to the Montgomery County Respondents’ assertion that,
although this Court has original jurisdiction over the removal provision found in
Section 5726 of the Wiretap Act, we do not have it over the damages provision
found in Section 5725.
            In pertinent part, Section 5726(a) of the Wiretap Act expressly
provides:
                   (a) Cause of Action. ̶ Any 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.
18 Pa. C.S. § 5726(a) (emphasis added). In contrast, Section 5725(a) provides:
                   (a) Cause of Action. ̶ Any person whose wire,
            electronic or oral communication is intercepted, disclosed
            or used in violation of this chapter shall have a civil

                                        4
               cause of action 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).
               Notwithstanding the basic tenet of statutory construction that the
omission of language from a provision and inclusion of it in a similar provision is
indicative of a different legislative intent,2 McCulligan argues that we have
ancillary jurisdiction over his civil damages claim because we have jurisdiction
over his claim seeking removal. Although we have found no direct authority
indicating that the issue of jurisdiction has been definitively determined, we have
observed as follows regarding the inclusion of jurisdictional language in Section
5726 and its omission in Section 5725:
               Significantly, [Section 5726(a)] expressly provides that
               an aggrieved person shall bring [his or her equitable
               cause of] action in the Commonwealth Court, although
               the immediately preceding section, which creates a civil
               action for money damages, 18 Pa. C.S. § 5725, provides
               no such language vesting this court with jurisdiction.
               Fundamental in statutory construction is the rule that,
               where a section of a statute contains a given provision,
               the omission of that provision from a similar section is
               significant to show a different intention existed.
Boettger, 481 A.2d at 975 n.2 (emphasis added) (citations omitted). See also
Birdseye v. Driscoll, 534 A.2d 548, 550 n.2 (Pa. Cmwlth. 1987) (a removal case
noting the distinction made in Boettger “between actions for damages under
Section 5725 and an equitable cause of action for removal created by Section 5726,
which contains express language vesting this Court with original jurisdiction”) and
Welch v. Palka, (Pa. Cmwlth., No. 274 M.D. 2008, filed November 29, 2010), slip
op. at 8 n.4, aff’d, 40 A.3d 1185 (Pa. 2012) (single-judge opinion reiterating the

   2
       Section 1921 of the Statutory Construction Act of 1972, 1 Pa. C.S. § 1921.



                                                5
distinction made in Boettger and noting: “[I]n the absence of specific language
stating otherwise, this Court is arguably not vested with jurisdiction to hear claims
made under either Sections 5741 or 5747 [of the Wiretap Act, as amended, 18 Pa.
C.S. §§ 5741 and 5747].”).3            Accordingly, where the legislature specifically
afforded jurisdiction to this Court in Sections 5726 and 5728 of the Wiretap Act,
18 Pa. C.S. §§ 5726 and 5728,4 for example, the absence of such language in other
provisions indicates its intent not to afford this Court jurisdiction over other
provisions even in situations where ancillary jurisdiction arguably could apply.
               In any event, even if we were to conclude that it would be appropriate
to transfer the damage claim to the court of common pleas, that would be an
unnecessary waste of judicial resources here, because McCulligan’s action under
Section 5725 of the Wiretap Act is barred by the statute of limitations found in
Section 5524(7) of the Judicial Code, as amended, 42 Pa. C.S. § 5524(7).5 In

    3
        Sections 5741 and 5747 of the Wiretap Act are located in subchapter C, pertaining to
stored wire and electronic communications and transactional records access. The Wiretap Act
defines “court” as follows: “The Superior Court. For the purposes of Subchapter C only, the
term shall mean the court of common pleas.” Section 5702 of the Wiretap Act, as amended, 18
Pa. C.S. § 5702.
     4
       In pertinent part, Section 5728 of the Wiretap Act provides: “Whenever it shall appear that
any person is engaged or is about to engage in any act which constitutes or will constitute a
felony violation of this subchapter, the Attorney General may initiate a civil action in the
Commonwealth Court to enjoin the violation.”
     5
        In response to McCulligan’s contention that Respondents’ affirmative defense of the
applicability of a statute of limitations was improperly pled and must be disregarded or stricken,
we acknowledge that such a defense typically must be raised in new matter. Where, as here,
however, that defense is clear from the pleadings, the responding party did not file preliminary
objections to the preliminary objections and delaying a ruling would serve no purpose, we
conclude that Respondents can raise the defense in their preliminary objection in the nature of a
demurrer. Petsinger v. Dep’t of Labor & Industry, Office of Vocational Rehab., 988 A.2d 748,
758 (Pa. Cmwlth. 2010). See also Faust v. Dep’t of Revenue, 592 A.2d 835, 838 n.3 (Pa.
Cmwlth. 1991) (holding that sovereign immunity may be raised in preliminary objections in the
nature of a demurrer when it is clear that delaying a ruling would serve no purpose) and Feldman
(Footnote continued on next page…)


                                                6
pertinent part, Section 5524(7) of the Judicial Code provides a two-year limitation
for “[a]ny other action or proceeding to recover damages for injury to person or
property which is founded on negligent, intentional, or otherwise tortious conduct
or any other action or proceeding sounding in trespass, including deceit, or fraud,
except an action or proceeding subject to another limitation specified in this
subchapter.” Bristow v. Clevenger et al., 80 F. Supp. 2d 421, 428 (W.D. Pa. 2000)
(court applied two-year statute of limitations found in Section 5524(7) of the
Judicial Code to an action alleging violation of Section 5725 of the Wiretap Act).6
               Moreover, as PSP Respondents maintain, because McCulligan knew
about the intercepted communications at least since December 2004, when he filed
an omnibus pre-trial motion in his criminal case seeking the suppression of
evidence resulting from search warrants and wiretap authorizations, he had two
years from that time period in which to file a civil action seeking statutory
damages under the Wiretap Act. In Bristow, 80 F. Supp. 2d at 429, the court found
that the limitations period applicable to Section 5725 of the Wiretap Act
commenced after the plaintiff learned of the alleged unlawful wiretapping. See
also Section 5747(e) of the Wiretap Act, as amended, 18 Pa. C.S. § 5747(e)

_____________________________
(continued…)
v. Hoffman, 107 A.3d 821, 829 (Pa. Cmwlth. 2014) (holding that, where it is apparent from the
face of the pleading that the cause of action does not fall within any exception to governmental
immunity, it may be raised in preliminary objections in the nature of a demurrer).
    6
      In so determining, we reject PSP Respondents’ contention that Section 5524(5) of the
Judicial Code, pertaining to civil penalty or forfeiture, applies to Section 5725 of the Wiretap
Act. In addition, we reject any implication that a six-year statute of limitations is applicable to
Section 5725 of the Wiretap Act. In Bristow, 80 F. Supp. 2d at 428, the court noted that the
Commonwealth Court in Boettger used the six-year catchall limitations period in Section 5527 of
the Judicial Code, as amended, 42 Pa. C.S. § 5527, for an action under Section 5725 of the
Wiretap Act because the legislature did not amend Section 5524 of the Judicial Code to add
subsection 7 until 1982.



                                                7
(providing for equitable relief and money damages for unlawful access to stored
communications and specifying that, “[a] civil action under this section may not be
commenced later than two years after the date upon which the claimant first
discovered or had a reasonable opportunity to discover the violation.”).
Accordingly, in light of our determination that McCulligan’s action under Section
5725 is barred by the applicable statute of limitations, it would serve no purpose
for us to transfer that part of the case to common pleas court. Having determined
that McCulligan’s damage claim is barred by the statute of limitations, we turn to
the preliminary objections pertaining to Section 5726.
            Both sets of Respondents maintain that the petition should be
dismissed for lack of specificity. In that regard, Pennsylvania is a fact-pleading
state and Rule 1019(a) provides that “[t]he material facts on which a cause of
action or defense is based shall be stated in a concise and summary form.”
Specifically, a plaintiff is required “to plead all the facts that he must prove in
order to achieve recovery on the alleged cause of action.” Commonwealth ex rel.
Pappert v. TAP Pharm. Products, Inc., 868 A.2d 624, 636 (Pa. Cmwlth. 2005).
Legal conclusions and general allegations of wrongdoing, without the requisite
specific factual averments or support, fail to meet the pleading standard. See
Lerner v. Lerner, 954 A.2d 1229, 1235-36 (Pa. Super. 2008).
            In the present case, McCulligan needed to plead the facts necessary to
establish a cause of action for removal under Section 5726 of the Wiretap Act.
Instead, he made a series of legal conclusions, without specifying how or when the
alleged violations occurred, who committed the alleged violations, what
information was disclosed, the recipient of the information, under what
circumstances information was disclosed or what subsections of the Act were



                                         8
allegedly violated.         Further, his petition lacks averments specifying the
circumstances of the 2003 to 2004 communications at issue, such as time, place,
participants, means of communication, means of interception and consent or lack
thereof of the participants. In addition, his petition contains inconsistent averments
concerning whether a proper court order was obtained. Respondents, therefore,
were unable to discern the grounds for appropriate responses and defenses. See
Ammlung v. City of Chester, 302 A.2d 491, 498 n.36 (Pa. Super. 1973) (holding
that a plaintiff in his complaint must accurately and completely set forth the
specific basis for recovery so that a defendant knows what grounds to make his
defense.).
               Moreover, we conclude that it would be futile to afford McCulligan an
opportunity to file a more specific pleading. See Ibn-Sadiika v. Riester, 551 A.2d
1112, 1117 (Pa. Super. 1988) (holding that a plaintiff’s right to amend a complaint
is properly withheld “[w]here the initial pleading reveals that [its] defects are so
substantial that amendment is not likely to cure them, and that the prima facie
elements of the claims asserted will not be established . . . .”). As former Chief
Justice Castille stated in a concurring and dissenting statement regarding Section
5726 of the Wiretap Act: “The removal cause of action . . . [is] an extreme
sanction that has rarely if ever been deployed, [and] was clearly intended to deter
the most egregious intentional violations of personal privacy.” Welch v. Palka,
983 A.2d 209, 211 (Pa. 2009).7



    7
       In light of our disposition, we need not address PSP Respondents’ assertion that PSP
should be dismissed because there is no cause of action against an agency under the Wiretap Act.
In that regard, we note only that the language of both provisions at issue specifies actions against
individuals.



                                                 9
            Accordingly, we sustain Respondents’ preliminary objections and
dismiss McCulligan’s petition with prejudice.




                                     _____________________________________
                                     BONNIE BRIGANCE LEADBETTER,
                                     Judge




                                       10
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert C. McCulligan,                     :
                        Petitioner        :
                                          :
                  v.                      :     No. 670 M.D. 2014
                                          :
Pennsylvania State Police and,            :
Charles Steinmetz, PSP State              :
Trooper, Individual and Official          :
Capacity and, Michael J. Minanno,         :
PSP State Trooper, Individual and         :
Official Capacity and, Anthony J.         :
Spagnoletti, Montgomery County            :
Detective, Individual and Official        :
Capacity and, Walter Zdunowski,           :
Montgomery County Detective,              :
Individual and Official Capacity and,     :
Erick Echevarria, Montgomery              :
County Detective, Individual and          :
Official Capacity,                        :
                          Respondents     :


                                     ORDER


            AND NOW, this 10th day of September, 2015, the preliminary
objections of the PSP Respondents and the Montgomery County Respondents are
hereby SUSTAINED and the petition for review is DISMISSED with prejudice.




                                        _____________________________________
                                        BONNIE BRIGANCE LEADBETTER,
                                        Judge
