IN THE COMMONWEALTH COURT OF PENNSYLVANIA

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph P. Guarrasi, J.D., : Petitioner : : v. : No. 92 M.D. 2014 : SUBMITTED: June 27, 2014 Thomas Gary Gambardella, D.J. : District Magistrate, 7-3-01 Individual : and Official Capacity and Diane E. : Gibbons, J. Common Pleas Court : Judge Individual and Official : Capacity, : Respondents : BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE LEADBETTER FILED: October 17, 2014 Before us for disposition in our original jurisdiction is the combined March 17, 2014 preliminary objections, motion to dismiss and request for special relief of Respondents Thomas Gary Gambardella, magisterial district judge, and the Honorable Diane E. Gibbons, Bucks County common pleas judge, to the petition for review of pro se Petitioner Joseph P. Guarrasi, J.D., who requests that this Court 1) find that Respondents intentionally violated the Wiretapping and

Electronic Surveillance Control Act (Wiretap Act); 1 2) order Respondents removal from their respective offices; and 3) award damages, punitive damages, counsel fees, litigation costs and any other relief deemed just and proper. We sustain Respondents preliminary objections and grant both their motion to dismiss the petition for review and request for special relief. 2 The present case originated with wiretapping conducted in connection with Petitioner s 2005 criminal conviction in which he was sentenced before the Court of Common Pleas of Bucks County to 6½ to 15 years of imprisonment. In Guarrasi v. Gibbons, No. 2007-07270 (Bucks County, filed September 12, 2013), aff d, No. 2769 EDA 2013 (Pa. Super. 2014), 3 the Superior Court set forth a detailed factual background and stated as follows regarding the specifics of the criminal case: 4 On March 2, 2004, based on the interceptions and other investigation, Guarrasi was arrested and charged with attempted murder, solicitation to commit murder and numerous related offenses. Subsequently, he entered a plea of nolo contendere to attempted murder and a guilty plea to multiple counts of attempted aggravated assault, attempted kidnapping, attempted unlawful 1 18 Pa. C.S. 5701-5781. 2 In March 2014, we granted Respondents requested relief, in part, entering an order staying discovery pending disposition of the above-captioned case. 3 In August 2014, Respondent provided the Superior Court s decision to this Court pursuant to Pennsylvania Rule of Appellate Procedure 2502(b), which governs counsel s responsibility when there is a change in the status of authorities cited in a party s brief. The Superior Court s unpublished memorandum decision is designated as a non-precedential decision pursuant to Superior Court I.O.P. 65.37. 4 Because Petitioner has referenced some of his other litigation in his pleadings, we may take judicial notice of those cases. See Guarrasi v. Scott, 25 A.3d 394, 397-98 n.3 (Pa. Cmwlth. 2011) (citation omitted) (where preliminary objections in the nature of a demurrer are at issue, court may take judicial notice of records in another case where plaintiff admits criminal convictions and references his other litigation). 2

restraint, attempted false imprisonment, attempted burglary and solicitation to commit insurance fraud. Guarrasi v. Gibbons, slip op. at 6 (footnotes omitted). In his petition for review, Petitioner s claims against Respondents involve purported violations of the Wiretap Act allegedly committed when Judge Gibbons served as Bucks County District Attorney and Gambardella was an assistant district attorney. Petitioner avers that Respondents intentionally violated the Wiretap Act: by unlawfully intercepting and procuring others to intercept, improperly using, and unlawfully disclosing to the public-at-large in conversation and press conferences, oral communications intercepted inside Petitioner s homes without a good faith reliance on a Court Order or other provisions of the [Wiretap Act], necessitating this Petition for Review, and their removal from office and employment, with statutory damages, pursuant to [Sections 5726, 5725 and 5701 of the Wiretap Act, 18 Pa. C.S. 5726, 5725 and 5701] et seq. Petition for Review, 1. In support, Petitioner avers as follows: 7. On or about 1/7/2004 through 4/27/2004, [Respondents] did intentionally encourage and procure Lisa M. Fryling ( Fryling ) and Michael Samios ( Samios ) to intercept wire, electronic or oral communications between Petitioner et al., and Informants Fryling and Samios, inside Petitioner s homes, offices and busisnesses [sic]. 8. On or about 1/7/2004, [Respondents] did, with the assistance of Fryling and Samios, did [sic] surreptitiously intercept wire, electronic oral communications, from inside Petitioner s homes, offices, and busisnesses [sic]. 9. On or about 1/7/2004 through 11/1/2013, [Respondents] did, intentionally use or endeavored to use the contents of the wire, electronic or oral 3

communication, or evidence therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication of the Petitioner s, including the filing of Court documents, not under seal, containing selected portions of the information obtained through the interception of Petitioner s wire, electronic or oral communications. 10. On or about 1/7/2004 through 11/1/2013, including at a press conference on 3/3/2004, [Respondents] did, intentionally disclose or endeavor to disclose to other persons, including the public-at-large, the contents of the wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication of Petitioner s. 11. [Respondents] did intentionally disclose or endeavore [sic] to disclose to the public-at-large the contents of the wire, electronic or oral communication of the Petitioner s, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication of Petitioner s, without a good faith reliance on a court order or other provisions of the [Wiretap Act]. 12. [Respondents] did, intentionally intercept, use, or disclose, the wire, electronic oral communications of Petitioner s, without a good faith reliance on a court order or other provisions of the [Wiretap Act]. 13. On 3/3/2004, [Respondents] did have or participate in a press conference in which the contents of the recorded intercepted communications of Petitioner, were disclosed to the public-at-large, by [Respondent] Gambardella and/or [Respondent] Gibbons. 14. [Respondents], did engage in an agreement with each other, and with others, including others in the District [A]ttorney s Office of Bucks County, to disclose 4

the contents of the wire, electronic or oral communications of the Petitioner, knowing the information was obtained through intercept, to the public-at-large, in press conferences, including the 3/3/2004 press conference, and with filings not under seal. 15. [Respondents] did intercept, use, and disclose, wire, electronic or oral communications, of the Petitioner, with his clients, protected by the attorneyclient privilage [sic], without a good faith reliance on a court order of the provisions of the [Wiretap Act]. 16. [Respondents] did not have consent from informants Fryling or Samios, nor from Petitioner, to disclose the intercepted communications to the public-atlarge in press conferences. Petition for Review, 7-16. asserting conclusions of law and expressions of opinion. 5 We disregard those portions of the averments In response, Respondents filed preliminary objections, a motion to dismiss and a request for special relief. Specifically, they request that this Court 1) dismiss the petition for review with prejudice; and 2) enter an order barring Petitioner from filing any future pro se litigation against the same or related respondents and raising the same or related claims without leave of court. 5 When considering preliminary objections, this Court must accept as true all well-pled facts that are material and all inferences reasonably deducible from the facts. However, the courts are not required to accept as true any unwarranted factual inferences, conclusions of law or expressions of opinion. For preliminary objections to be sustained, it must appear with certainty that the law will permit no recovery. Any doubt must be resolved in favor of the non-moving party. Guarrasi v. Scott, 25 A.3d at 400 n.5 (citation omitted). 5

Count I In Count I of their combined filing, which Respondents characterize as a motion to dismiss, they assert that the petition for review is frivolous in that the issues already have been determined against Petitioner both in this Court and in common pleas in separate actions against the same or related parties and raising the same or related claims. In support, Respondents cite Pennsylvania Rule of Civil Procedure No. 233.1, which, in pertinent part, provides as follows: 6 (a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that (1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and (2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding. In addition, Respondents maintain that the petition for review should also be dismissed under the doctrine of collateral estoppel, which precludes relitigation of an issue determined in a previous action if: (1) the issue decided in the prior case is identical to the one presented in the later action; (2) there was a final adjudication on the merits; (3) the party against whom the plea is asserted was 6 Regarding the applicability of the Pennsylvania Rules of Civil Procedure to the abovecaptioned matter, Pennsylvania Rule of Appellate Procedure 1517 provides as follows: Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied. 6

the party or in privity with a party in the prior case; (4) the party or person in privity with the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceedings; and (5) the determination in the prior proceedings was essential to the judgment. See C.D.G., Inc. v. Workers Comp. Appeal Bd. (McAllister), 702 A.2d 873, 875 (Pa. Cmwlth. 1997). We conclude that the petition should be dismissed under both Rule 233.1 and the doctrine of collateral estoppel. In Petitioner s prior case against Gambardella as an assistant district attorney and the two county detectives involved in the criminal investigation, see Guarrasi, J.D. v. Carroll, (Pa. Cmwlth., No. 604 M.D. 2009, filed December 6, 2011), aff d, 66 A.3d 250 (Pa. 2013), 7 Petitioner sought to have this Court remove the detectives from their positions due to alleged similar violations of the Wiretap Act. (Before trial, Petitioner s action against Gambardella was dismissed.) Following a bench trial, the Honorable Keith B. Quigley entered an October 2011 verdict and subsequent judgment in favor of the two detectives. Upon Petitioner s notice of appeal to the Supreme Court, Judge Quigley in a subsequent opinion concluded that Petitioner failed to preserve any issues for appellate review but noted that none of the evidence requires a finding that Respondents abused their status by violating the provisions of the [Wiretap] Act in any respect and all credibility issues in support of that conclusion certainly favor Respondents. Guarrasi v. Carroll, slip op. at 3. In Petitioner s prior civil action filed in common pleas against Judge Gibbons, Guarrasi v. Gibbons, Petitioner sought to have her censored, suspended and expelled from the office of district attorney due to alleged misconduct while in 7 The opinion is appended to Respondents May 2014 amended brief. 7

office for issues related to the wiretapping. In its opinion affirming common pleas entry of summary judgment in favor of Judge Gibbons and against Guarrasi, the Superior Court noted that Section 1405 of the Second Class County Code (Code), 8 16 P.S. 1405, does not apply to district attorneys of second class A counties. In addition, the Court affirmed the dismissal of Petitioner s action as moot under Section 4405 of the Code, 16 P.S. 4405, noting that Judge Gibbons resigned as district attorney at the end of 2007. 9 Further, notwithstanding its conclusion that the action was moot, the Court agreed with the conclusion that Judge Gibbons was entitled to judgment as a matter of law under collateral estoppel principles, stating as follows: In [Petitioner s] lawsuit against Chief Deputy Gambardella and the two detectives, the Commonwealth Court held after a one-day trial that there were no Wiretap Act violations committed in connection with [Petitioner s] criminal case. The Supreme Court affirmed this decision. Consequently, under collateral estoppel principles, [Petitioner] is precluded from arguing in the present case that there were any Wiretap Act violations. 8 Act of July 28, 1953, P.L. 723, as amended. In pertinent part, Section 1405 provides as follows: [I]f such district attorney shall be guilty of wilful and gross negligence in the execution of the duties of his office, he shall be guilty of a misdemeanor in office, and, on conviction thereof, be sentenced to pay a fine not exceeding one thousand dollars and to undergo imprisonment not exceeding one year, and his office shall be declared vacant. 9 Noting that Guarrasi in his amended complaint seemed to request a declaration that Judge Gibbons be ineligible to hold the office of District Attorney as well as any other office in Pennsylvania, the Court noted as follows: Nothing in section 4405 indicates that this sweeping remedy is available as a result of a District Attorney s alleged misconduct. Section 4405 permits removal of an individual from the office of District Attorney for misconduct, but not from any other office. Guarrasi v. Gibbons, slip op. at 13-14 n.26. 8

Guarrasi v. Gibbons, slip op. at 15 (footnotes omitted). In determining that the petition for review warrants dismissal, we note that the requirements of Rule 233.1 are not as stringent as the traditional collateral estoppel requirements. Gray v. Buonopane, 53 A.3d 829, 836 (Pa. Super. 2012), appeal denied, 64 A.3d 632 (Pa. 2013). However, we conclude that the requirements of both the rule and doctrine have been met in the present case. We turn first to the criterion requiring that the claims raised here and in the prior actions be related. In the present case, Petitioner again seeks redress for wiretapping conducted during the criminal investigation leading to his conviction. Respondents succinctly note in their brief: The gravamen of [Petitioner s] complaints against the detectives, the District Attorney and her deputy, all arose from the same set of facts allegedly violating the Wiretap Act. He charged them with having unlawfully conducted the interceptions, filing the affidavits of probable cause without placing them under seal, not creating a chain of custody for money Guarrasi paid the informant, and assisting the assistant District Attorney in releasing the recorded information to the press through unsealed affidavits of probable cause. Respondents Brief at 15. Accordingly, not only are the present and prior claims related to the investigation and conviction of Petitioner, but they challenge the same conduct. As for the relationship of the parties, Rule 233.1 requires that the same or related defendants be involved. As Privity pursuant to the doctrine of collateral estoppel exists when there are [m]utual or successive relationships to the same right of property, or such an identification of interest of one person with another as to represent the same legal right. C.D.G., Inc., 702 A.2d at 875 n.4 9

(citation omitted). We found privity in C.D.G., Inc., a workers compensation case, where both the doctor and the claimant were interested in whether certain treatments were reimbursable by the employer. In other words, there was a mutuality of interests. During the relevant time period in the present case, Judge Gibbons as the district attorney, Gambardella as an assistant district attorney and the two county detectives secured evidence which, presumably, was important to Petitioner s conviction. Accordingly, not only were the parties related, but they were also in privity with one another in that they were mutually involved in the same investigation which culminated in Petitioner s conviction and incarceration. As for the criteria requiring resolution of the claims in a court proceeding and that the determination in the prior proceedings be essential to the respective judgments, the Superior Court in Guarassi v. Gibbons noted Judge Quigley s holding in Guarrasi v. Carroll that there were no Wiretap Act violations committed in connection with Petitioner s criminal case. 10 Judge Quigley made 10 As Judge Quigley noted: The only possible violation was the publication of information contained ordinarily in applications or affidavits of probable cause which were filed in the appropriate Clerk s office at a given time. While there may have been some issue of disclosure of some of the information contained therein by one of the Respondents or a person in association with Respondents prior to the actual filing, we nevertheless will not conclude that a violation of the Act occurred. Even if we did, the facts and circumstances at issue would have become public knowledge virtually contemporaneously with the disclosure, making such disclosure harmless at best. Guarrasi v. Carroll, slip op. at 2-3 n.1. The Superior Court deferred to his conclusion, noting that, isolated technical violations such as one premature disclosure of sealed information does not create grounds for removing a District Attorney from office especially when, as here, there (Footnote continued on next page ) 10

this determination after holding a one-day trial. Accordingly, pursuant to both Rule 233.1 and the doctrine of collateral estoppel, Petitioner s claims against each Respondent involving the Wiretap Act were resolved pursuant to court proceedings after a full and fair opportunity to litigate the issues in those prior proceedings. Further, of great significance in the present case, the determination in those proceedings, that there was no violation of the Wiretap Act, was essential to the final outcomes of those cases. Moreover, we reject Petitioner s argument that he is entitled to revisit the previous adverse judgments in light of the Supreme Court s decision in Karoly v. Mancuso, 65 A.3d 301 (Pa. 2013). In pertinent part, the Karoly Court held as follows regarding the prosecution s dissemination to the media of a motion containing recitation of an intercepted conversation between the defense attorney and his client: We do not agree that distribution to the media can be harmonized with the [Wiretap] Act s restrictions on disclosure, since it constitutes a level of public disclosure above and beyond that which occurs when documents are filed with the clerk of courts. Id. at 311. In addition, noting that it was not apparent why the motion and supporting brief could not have been filed under seal in the first instance, the Court stated as follows: Because members of the press are not investigative or law enforcement officers as defined in the Wiretap Act, any dissemination of the intercepted communications to the media by either Appellee [county detective and /or first assistant district attorney] would have been contrary to Section 5717(a) [of the Wiretap Act, 18 Pa. C.S. 5717(a), involving investigative disclosure or use of (continued ) is no evidence that the disclosure was in any way misleading. Guarrasi v. Gibbons, slip op. at 16. 11

contents of wire, electronic or oral communications or derivative evidence]. Id. at 312 (footnote omitted). In response, Respondents maintain that Karoly is distinguishable on both the facts and any relevant policy considerations. In addition, they argue that it is inapplicable in light of their vested rights to the finality of judgments, issue preclusion and freedom from redundant pro se litigation under Rule 233.1. See Kuchinic v. McCrory, 222 A.2d 897, 900 (Pa. 1966) ( [u]nless vested rights are affected, a court s interpretation of a statute is considered to have been the law from its enactment date, despite contrary intervening holdings ). In consideration of Respondents arguments and the fact that both Judge Quigley, as affirmed by the Supreme Court, and the Superior Court determined that there were no violations of the Wiretap Act, 11 we conclude that Karoly does not affect our ruling in the above-captioned case. We turn now to the preliminary objections. Count II In Count II of their combined filing, which Respondents characterize as preliminary objections, they cite Pennsylvania Rule of Civil Procedure No. 1028(a)(1) in asserting that this Court lacks jurisdiction to grant the relief requested because as judicial officers, Respondents are subject to removal only by the Supreme Court of Pennsylvania. They further assert that Petitioner failed to make averments with the requisite specificity in accordance with Pennsylvania Rule of Civil Procedure No. 1019 in that he failed to aver any specific time or place when disclosure of intercepted materials allegedly occurred after March 6, 2004, in the absence of which the statute of limitations has expired on the face of 11 See supra, n.10. 12

the petition. Respondents Preliminary Objections, 23. Notwithstanding any jurisdictional or statute of limitations issues, we conclude that there is no basis for Petitioner s requested relief. Petitioner is requesting that we order Respondents removal from office or employment pursuant to Section 5726 of the Wiretap Act governing actions for removal from office or employment for intentional violations. In addition, he is requesting statutory damages under Section 5725 for unlawful interception, disclosure or use of wire, electronic or oral communication. As described above, at least two courts have already determined that there were no violations of the Wiretap Act. Petitioner, therefore, is collaterally estopped from continuously attempting to relitigate this issue by naming related respondents/defendants in their ever-evolving capacities in different courts and in different contexts. Accordingly, we sustain Respondents preliminary objections, grant their motion to dismiss the petition for review with prejudice and grant their request for special relief. Specifically with regard to Respondents request for special relief, we hold that, absent court approval, Petitioner is precluded from filing the same or related claims which he raised in prior actions against the same or related respondents/defendants, either in their former capacities, their current capacities or individually. BONNIE BRIGANCE LEADBETTER, Judge 13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA Joseph P. Guarrasi, J.D., : Petitioner : : v. : No. 92 M.D. 2014 : Thomas Gary Gambardella, D.J. : District Magistrate, 7-3-01 Individual : and Official Capacity and Diane E. : Gibbons, J. Common Pleas Court : Judge Individual and Official : Capacity, : Respondents : O R D E R AND NOW, this 17th day of October, 2014, Respondents preliminary objections in the above-captioned matter are hereby SUSTAINED and their motion to dismiss the petition for review, with prejudice, is GRANTED. Further, we GRANT Respondents petition for special relief. Accordingly, absent court approval, Petitioner is precluded from filing the same or related claims which he raised in prior actions against the same or related respondents/defendants, either in their former capacities, their current capacities or individually. BONNIE BRIGANCE LEADBETTER, Judge