Prima Facie Case for Interception of An Oral Communication

Is Class Action Appropriate in Addressing the Issue of Interception of Oral Communication if a Class Member Had Reasonable Expectation of Privacy ? In Agnew v. Dupler, 553 Pa. 33, 717 A.2d 519 (1998), the Supreme Court stated that in order to establish a prima facie case under the Pennsylvania Wire Tapping and Electronic Surveillance Act (Act) for interception of an oral communication, the claimant must show 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; (4) the defendant attempted to or successfully intercepted the communication, or encouraged another to do so. Attempted interception, however, is insufficient to establish liability under the Act. The class member must also have exhibited an objectively reasonable expectation of privacy under the circumstances. In Agnew, the Supreme Court stated that the proper inquires in determining what constitutes an "oral communication" under the Act include whether the speaker has a specific expectation that the contents of the discussion would not be intercepted and whether that expectation was reasonable under the existing circumstances. In reviewing whether the expectation was reasonable under the circumstances, it is necessary to examine the expectation according to 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." Id. at 40, 717 A.2d at 523. Thus, the trial court would be required to examine whether the person exhibited an expectation of privacy and whether that expectation is one that society is prepared to recognize. Id. As Agnew illustrates, there is a need for additional inquiry in deciding whether a person would be a member of the prospective class. The trial court would be required to analyze the circumstances surrounding each prospective class member's presence on the bus to determine if he or she had an objectively reasonable expectation of privacy. Only then could the trial court determine whether the proposed member had a reasonable expectation of privacy. Consequently, the efficiency expected in a class action is thwarted by the need for individualized fact finding for each prospective class member. See generally Sanneman v. Chrysler Corp., 191 F.R.D. 441 (E.D. Pa. 2000) (determining a membership in the class would essentially require a mini-hearing on the merits of each class member's case, which in itself renders a class action inappropriate for addressing the claims at issue).