J-A10034-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANTHONY SARACCO                            :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL SWEENEY AND DENA                   :
    SWEENEY                                    :
                                               :   No. 2473 EDA 2019
                       Appellant               :

               Appeal from the Order Entered August 9, 2019
      In the Court of Common Pleas of Delaware County Civil Division at
                         No(s): CV-2018-007839


BEFORE: BOWES, J., SHOGAN, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.:                             FILED JUNE 23, 2020

       Michael and Dena Sweeney (the Sweeneys) appeal from the order

entered in the Court of Common Pleas of Delaware County (trial court)

granting the motion for a permanent injunction filed by Anthony Saracco

(Saracco) and directing the Sweeneys to remove and/or redirect the visual

and audio recording devices on their property that face Saracco’s property.

We vacate the trial court’s order as it relates to the award of attorney’s fees

only1 and affirm it in all other respects.

____________________________________________


1 At the hearing before the trial court, Saracco’s counsel stated that they were
there only for injunctive relief and not to handle attorney’s fees that were to
be handled in arbitration. In its Rule 1925 opinion, the trial court asks this
Court to remand the issue of attorney’s fees and costs for arbitration. (See


*Retired Senior Judge assigned to the Superior Court.
J-A10034-20


                                               I.

       The parties are adjacent property owners in Parkside, Pennsylvania,

with driveways located between the two properties. They have been involved

in a long-standing dispute, causing, since approximately 2013, the Parkside

Borough Police Department to respond to calls at their properties over 100

times.

       Involved in this appeal is the Sweeneys’ installation of security cameras

and audio recording devices, many of which point to Saracco’s home. This

caused Saracco to file a civil action contending that the installation of those

devices constituted an invasion of privacy2 and a violation of the Wiretapping

and Electronic Surveillance Control Act, 18 Pa.C.S. § 5701-82 (Wiretap Act),


____________________________________________


Trial Ct. Op., at 11). Remand renders the Sweeneys’ challenge to the trial
court’s award of attorney’s fees to Saracco moot. The Sweeneys acknowledge
this by abandoning this issue in their brief. Accordingly, we will remand the
issue of attorney’s fees in accordance with the trial court’s request.

2  “An action for invasion of privacy is comprised of four distinct torts: (1)
intrusion upon seclusion, (2) appropriation of name or likeness, (3)
publicity given to private life and (4) publicity placing the person in a false
light. Marks v. Bell Tel. Co. of Pa., 331 A.2d 424 (Pa. 1975).” Harris by
Harris v. Easton Publishing Co., 483 A.2d 1377, 1383 (Pa. Super. 1984).
The tort pled here is “intrusion upon seclusion”. Section 652B of the Second
Restatement of Torts states:

       One who intentionally intrudes, physically or otherwise, upon the
       solitude or seclusion of another or his private affairs or concerns,
       is subject to liability to the other for invasion of his privacy, if the
       intrusion would be highly offensive to a reasonable person.




                                           -2-
J-A10034-20


and he sought both damages and injunctive relief.3 Pertinently, Section 5725

of the Wiretap Act provides in relevant part:

       Any person whose wire, electronic or oral 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 or procures any other person to intercept,
       disclose or use, such communication. . .

18 Pa.C.S. § 5725(a) (emphasis added).

       At the hearing before the trial court limited to the request for injunctive

relief, Michael Sweeney was called both as on cross by Saracco and later in

his defense.     Cumulatively, his testimony established that he installed the

cameras in May 2009 to protect himself from being falsely accused of

vandalism, to protect his property from being vandalized, and to protect his

family from vulgar speech. He testified that Saracco used racial slurs and

sexually suggestive speech towards him and his wife and that Saracco directed

derogatory terms to his handicapped son.4 Due to their disputes, Sweeney

testified that he and his wife appeared in 2013 before a District Judge who

issued a no-contact order between the parties and, after Saracco violated that

order, he was imprisoned and was made to surrender his firearms.



____________________________________________


3 The Sweeneys also filed a counterclaim for invasion of privacy and injunctive
relief.

4 Dena Sweeney testified about Saracco’s derogatory language directed
towards her and her son. She testified that Saracco has followed and harassed
her family and has even affected their places of work.


                                           -3-
J-A10034-20


      He testified that his surveillance system now consists of six functioning

cameras on the property, four of which faced Saracco’s property, an audio

recording device on the side of his home that faces Saracco’s house installed

in 2O13, and a DVR system with a 30-day retention period. The surveillance

cameras on Saracco’s side of the Sweeneys’ property are directed at Saracco’s

side door, his front porch, garage, back deck and back yard. He also testified

that he posted a sign outside of his home alerting people of both video and

audio recording.

      He admitted, though, that the audio recording devices could have picked

up conversations from Saracco’s front yard and his enclosed porch, and that

his recording device also recorded unsuspecting occupants of Saracco’s

property.   After admitting that his audio recording devices have recorded

sound up to three to four houses away from his own home, Michael Sweeny,

in response to questions, testified:

      Q: And over the course of those years, since 2009 and then 2013
      with the audio recording, it’s fair to say that you have recorded
      Mr. Saracco on his driveway and adjacent to the side of his house,
      is that correct?

      A: Correct.

      Q: You've -- there have been recordings of him in his back yard,
      correct?

      A: Correct.

      Q: Recordings of him on his deck?

      A: Correct.


                                       -4-
J-A10034-20


      Q: Recordings of him under his deck?

      A: Correct.

      Q: Recordings of him on -- in his door to his home?

      A: In his doorway, correct.

      Q: . . . You made recordings of Mr. Saracco while he’s been on his
      enclosed front porch, correct?

      A: Yes.

      Q: Has it [the audio recording devices] in your experience, picked
      up somebody having a normal conversation in Mr. Saracco’s front
      yard?

      A: Sure, yes.

(Reproduced Record (R.R.) 161a).

      Saracco testified that he and the Sweeneys had a contentious

relationship that began in 2009 after purported vandalism to his vehicle. He

further testified that subsequent incidents were initiated by the Sweeneys. He

testified that when he was in his garage, the Sweeneys rotated the camera

that is on the fence post to point into his garage so that they can observe him.

Because two of the cameras on the side of the Sweeneys’ property are

positioned so they are or can be pointed into a window, he testified that he

put up heavy curtains on the window and tinted his windows to maintain his

privacy. He stated that the visual and audio security directed towards his

home has affected his socializing.    He used to have friends come over to

socialize, but they do not come over anymore because they do not want to be

recorded. He testified that he put a roof and a barn door on his deck so that

                                     -5-
J-A10034-20


he could have some privacy.           As to the security cameras he installed, he

testified that he made a deliberate effort to ensure that his cameras were

facing his own property. He admitted that he used inappropriate language

but only in response to comments made by the Sweeneys to him.

       Finding a violation under the Wiretap Act because the audio devices

recorded conversations that took place on Saracco’s property, the trial court

issued the permanent injunction,5 providing in relevant part:6

       1. [The Sweeneys] shall remove all audio recording devices from
       the Property located at 136 Chelton Road, Parkside, Pennsylvania
       that face Mr. Saracco’s property, including his garage;
____________________________________________


5 To prevail on a claim for a permanent injunction, the plaintiff must establish
a clear right to relief, that there is an urgent necessity to avoid an injury that
cannot be compensated for by damages, and that greater injury will result
from refusing rather than granting the relief requested. See Kuznik v.
Westmoreland Cty. Bd. of Comm'rs, 902 A.2d 476, 489 (Pa. 2006).
“Where the essential prerequisites of an injunction are satisfied, the court
must narrowly tailor its remedy to abate the injury.” Matenkoski v. Greer,
213 A.3d 1018, 1027 (Pa. Super. 2019) (citation omitted). “An injunction
should be as definite, clear and precise in its terms as possible, so that there
may be no reason or excuse for misunderstanding or disobeying it.” Id.
(citation omitted). “When practicable, an injunction should plainly indicate to
the defendant all of the acts which he is restrained from doing, without calling
upon him for inferences or conclusions about which persons may well differ.”
Id. (citation omitted).

We also are mindful that “courts sitting in equity hold broad powers to grant
relief that will result in an equitable resolution of a dispute.” Gutteridge v.
J3 Energy Grp., Inc., 165 A.3d 908, 916–17 (Pa. Super. 2017) (citation
omitted). “In addition, a trial court must formulate an equitable remedy that
is consistent with the relief requested.” Id. (citation omitted).

6 On appeal, the Sweeneys do not challenge the trial court’s injunction
concerning the positioning of video cameras on their property.




                                           -6-
J-A10034-20


                                       *       *   *

        4. The removal of said audio recording devices and redirecting of
        cameras shall be confirmed by an inspection by an independent
        third party to be agreed upon by the parties. The inspector shall
        provide a letter to [Saracco’s] counsel confirming the removal of
        the audio recording devices and the redirecting of the cameras.
        The costs of inspection shall be paid by [the Sweeneys];

                                       *       *   *

        6. Both parties are enjoined from redirecting their cameras at the
        other party’s property, installing any spotlights directed at the
        other party’s property, or installing any audio recording devices;
        and

        7. [The Sweeneys] are ordered to pay [Saracco’s] attorney fees
        and costs . . .

(Order, 8/09/19).

        The Sweeneys timely appealed. They and the trial court complied with

Rule 1925. See Pa.R.A.P. 1925(a)-(b).7




____________________________________________


7   Our standard of review is as follows:

        The grant or denial of a permanent injunction is a question of law.
        Regarding the trial court’s legal determination, our standard of
        review is de novo, and our scope of review is plenary. As in all
        equity matters, however, we must accept the trial court’s factual
        findings and give them the weight of a jury verdict where they are
        supported by competent evidence.

Thomas A. Robinson Family Ltd. P'ship v. Bioni, 178 A.3d 839, 843 (Pa.
Super. 2017) (citation omitted).


                                           -7-
J-A10034-20


                                         II.

       On appeal, the Sweeneys contend that the trial court erred in finding

that   the   recording   devices    facing   Saracco’s   property   captured   “oral

communications” in violation of the Wiretap Act. They maintain that what was

captured were not “oral communication[s]” within the meaning of that term

because Saracco had no reasonable expectation that the hostile, lewd

statements he made in the parties’ driveways or shouted from his property

would not be intercepted.          Because what was captured were not “oral

communications,” the Sweenys argue Saracco did not establish that there was

a violation of the Wiretap Act vitiating the trial court’s basis that he had a clear

right under the law for the grant of a permanent injunction.

       The Wiretap Act defines the term “oral communication” as “[a]ny oral

communication uttered by a person possessing an expectation that such

communication is not subject to interception under circumstances justifying

such expectation.” 18 Pa.C.S. § 5702.

             To establish a prima facie case under the Wiretap Act for
       interception of an oral communication, a claimant must
       demonstrate that: (1) he engaged in a communication; (2) he
       possessed an expectation that the communication would not be
       intercepted; (3) his expectation was justifiable under the
       circumstances; and (4) the defendant attempted to, or did
       successfully, intercept the communication, or encouraged another
       to do so.

             [I]n determining what constitutes an ‘oral communication’
       under the Wiretap Act, the proper inquiries are whether the
       speaker had a specific expectation that the contents of the
       discussion would not be intercepted, and whether that expectation
       was justifiable under the existing circumstances. In determining

                                        -8-
J-A10034-20


      whether the expectation of non-interception was justified under
      the circumstances of a particular case, it is necessary for a
      reviewing court to examine the expectation in accordance with the
      principles surrounding the right to privacy, for one cannot have an
      expectation of non-interception absent a finding of a reasonable
      expectation of privacy.      To determine the existence of an
      expectation of privacy in one’s activities, a reviewing court must
      first examine whether the person exhibited an expectation of
      privacy; and second, whether that expectation is one that society
      is prepared to recognize as reasonable.

Matenkoski, supra at 1028–29 (citation omitted).

      At the outset, we disagree with the Sweeneys’ characterization that all

of the recorded statements were just Saracco’s hostile verbal attacks on them

because Saracco was recorded on his own property at times when he was not

interacting with the Sweeneys. Michael Sweeney’s own testimony established

that the recording equipment is sensitive enough to pick up sound made on

Saracco’s property, including in his backyard and on his deck, and that the

video cameras would record “anyone in the visibility of the camera.” (N.T.

Trial, at 53; see id. at 38).

      Relying on Agnew v. Dupler, 717 A.2d 519, 524 (Pa. 1998), the

Sweeneys nonetheless contend that Saracco lacked a reasonable privacy

interest in the recorded statements, even though those conversations were

not directed at them and took place on his property. In Agnew, a police

officer alleged that the police chief violated the Wiretap Act by monitoring his

squad room conversations with another officer through an intercom system.

Our   Supreme     Court   held   that   these   conversations   were   not   oral

communications under the Wiretap Law because the officer did not possess a

                                        -9-
J-A10034-20


reasonable expectation of privacy in the conversations given that the squad

door room was open, all conversations could be heard without amplification in

the chief’s office, and the chief had the light on in his office. Agnew simply

does not apply for the aforesaid reasons where those recorded did not have a

reasonable expectation of privacy while, in this case, the Sweeneys recorded

Saracco in his own home where individuals do have an expectation of privacy.8

       In Matenkoski supra, on which the Sweeneys also rely, property

owners placed their camera on a windowsill in their house and directed it

outside at the driveway and the side of the detached garage where the

neighbors were operating a commercial automobile repair and restoration

business. The neighboring property was extremely noisy and odorous and

was in violation of several provisions of the township zoning ordinance. This

Court determined that the neighbors lacked a justifiable expectation their

conversations would not be intercepted where the purpose of the audio and

camera recordings was to document the noise and activity generated by their

____________________________________________


8 The inside of one’s home is the area in which every person has the greatest
expectation of privacy and, thus, it is an area entitled to the maximum
constitutional protection. See Commonwealth v. Bricker, 666 A.2d 257,
261 (Pa. 1995) (“We have long recognized the sanctity of the home in this
Commonwealth as we have repeatedly stated that ‘[u]pon closing the door to
one’s home to the outside world, a person may legitimately expect the highest
degree of privacy known to our society.’” (quoting Commonwealth v. Brion,
652 A.2d 287, 289 (1994), in turn quoting Commonwealth v. Shaw, 383
A.2d 496, 499 (1978); Commonwealth v. Roland, 637 A.2d 269, 270
(1994)).




                                          - 10 -
J-A10034-20


commercial automobile business. Matenkoski is also distinguishable because

it involved activities that took place in an illegal business rather than their

neighbor in and around his own private home, again, where he had a

reasonable expectation of privacy.9

       As the trial court cogently explained:

              The audio and visual recordings of [Saracco] on his property
       were a violation of the Wiretap Act because he was engaging in
       oral communications and conversing with house guests while
       under surveillance. [Saracco] testified about his expectation of
       privacy in his home and how he felt violated when he became
       aware that the video camera could see inside the interior of his
       home and that the audio devices could interpret conversations he
       had on his porch. While there were signs alerting [Saracco] that
       [the Sweeneys] had video and audio surveillance, his expectation
       that the surveillance would include the outdoor and indoor parts
       of his property were not initially foreseeable. [Saracco] only later
       became aware that his property, including the interior of his home,
       back deck, front porch and his driveway, were under surveillance.

       . . .    [The Sweeneys] have violated the Wiretap Law by
       intercepting [Saracco’s] communication, by maintaining audio and
       surveillance devices that have recorded [Saracco’s] interaction
       with guests and other communication.

(Trail Ct. Op., at 10-11) (record citations omitted).




____________________________________________


9 The Sweeneys’ reliance on Pennsylvania State Police v. Grove, 161 A.3d
877, 902 (Pa. 2017), is similarly misplaced because the factual circumstances
of that case are plainly inapposite. The Grove Court held that disclosure of
police motor vehicle recordings pursuant to the Right-To-Know Law does not
violate the Wiretap Act where the conversations took place in broad daylight
at the scene of an accident on a public roadway within earshot and easy view
of bystanders or passersby.

                                          - 11 -
J-A10034-20


      We agree with the trial court and conclude that Saracco has a reasonable

expectation of privacy in his conversations on his private property, the

interceptions of which were improper under the Wiretap Act.

                                       III.

                                       A.

      Even if their recording devices captured “oral communications,” the

Sweeneys challenge the trial court’s directive to “remove all audio recording

devices . . . that face Mr. Saracco’s property, including his garage.” (Order,

8/09/19, at Paragraph 1).     The Sweeneys contend that this provision is

overbroad and encompasses otherwise legal activity by eliminating their

ability to monitor half of their property. See Matenkoski, supra at 1027

(“Where the essential prerequisites of an injunction are satisfied, the court

must narrowly tailor its remedy to abate the injury.”) (citation omitted).

      Mr. Sweeney testified that the audio equipment is sensitive enough to

pick up a conversation in Saracco’s backyard and under his deck. Not only

does that equipment record Saracco’s conversations, it records any

unsuspecting third parties on Saracco’s property. Even though the Sweeneys

contend that those individuals have no expectation of privacy because there

were notice signs posted on their property of the recording devices, those

notices serve only to notify visitors to their property and does not give them

carte blanc to record individuals on the property of others. Most importantly,




                                    - 12 -
J-A10034-20


the audio equipment captures “oral communications” in violation of the

Wiretap Act.

      Given all that, the trial court properly exercised its broad power to

fashion an equitable, narrowly tailored directive to remove only those audio

devices facing Saracco’s property.

                                     B.

      The Sweeneys also contend that the trial court’s enjoining of both

parties from installing audio recording devices on their properties is overbroad

and constitutes a blanket ban on their ability to monitor those portions of their

property that do not face Saracco. Even if this were so, the parties have a

longstanding turbulent relationship and have been unable or unwilling to

resolve their conflicts. The police have been called to their properties over

100 times and multiple judges have issued no contact orders. Given these

circumstances, a blanket order would not have been overbroad.

      However, this reading of the provision as a blanket ban is inconsistent

with the remaining language of the order that required removal of only those

devices facing Saracco’s property. In its opinion, the trial court explained that

the orders addressed the audio recording devices intruding onto Saracco’s

property and directed the parties “to cease audio recording of one another.”

(Trial Ct. Op., at 9). When read in context, Paragraph 6 of the order clearly

prohibits the Sweeneys’ reinstallation of audio recording devices on the side

of their property facing Saracco.


                                     - 13 -
J-A10034-20


                                    C.

      Finally, with regard to the Sweeneys’ assertion that their obligation to

pay for the cost of the inspection “essentially forces [them] to pay for

Saracco’s compliance with the order,” such claim is baseless.      (Sweeneys’

Brief, at 13). The plain language of the order obligates the Sweeneys to pay

for an inspection to confirm their own compliance with the order and to

provide this confirmation to Saracco’s attorney. (See Order, 08/09/19, at

Paragraph 4).

      Accordingly, for the foregoing reasons, we vacate the trial court’s order

as it relates to the award of attorney’s fees only and affirm it in all other

respects.

      Order vacated in part as to attorney’s fees only. Order affirmed in all

other respects.    Case remanded for arbitration on the limited issue of

attorney’s fees. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2020




                                     - 14 -
