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PASCALE v. CAROLINA FREIGHT CARRIERS CORP.

September 27, 1995

LAWRENCE V. PASCALE, TRACY PASCALE, KENNETH FLAHERTY and AFSANETH FLAHERTY, Plaintiffs,
v.
CAROLINA FREIGHT CARRIERS CORP. a corporate body, D.R. SMITH, DAVID DEL ROSSI, PAUL RIORDAN, ROBERT AUSTELL and JAMES CARLTON, Defendants.



The opinion of the court was delivered by: LIFLAND

 LIFLAND, District Judge

 Plaintiffs Lawrence Pascale and Kenneth Flaherty are former supervisors at defendant Carolina Freight Carrier Corporation's ("Carolina") Pine Brook, N.J. terminal. Plaintiffs Tracy Pascale and Afsaneh Flaherty are their wives. Individual defendant D.R. Smith is a Carolina manager. Both parties move for summary judgment pursuant to Fed. R. Civ. P. 56. For the reasons set forth below, the Court will grant plaintiffs' motion for summary judgment as to liability and deny defendants' motion.

 BACKGROUND

 In the spring of 1993, Carolina had a theft problem at the terminal. A supply of Victoria's Secret perfume worth $ 4,500 was stolen. Defendant Smith suspected a dock worker named Fernando Marrerro of taking the perfume. Marrerro had been receiving an unusual number of emergency calls at work. He took these calls on one of the three telephones in Carolina's dispatch office and operations room near the loading dock. These phones were generally off-limits to loading dock employees; Marrerro's calls were an exception. Ackerman Affidavit, Exhibit A at 15, 22-24, 28, 30. Smith suspected that Marrerro was using these calls to arrange the theft of goods. Smith's suspicions were not allayed when he saw Marrerro drive off one night with a flat tire, rather than open the trunk of his car in view of a supervisor. Id. at 51-53.

 Smith hired a private investigator named Richard Steepy to attach voice-activated tape recorders to defendant Carolina's phone system. On June 6, 1993, three tape recorders were installed, one for each of the three phones near the loading dock. The recorders were connected to the busboard by means of a Radio Shack wire. In this way, the recorders were connected to the phones in the dispatch and operations room. All outgoing and incoming calls to these three extensions were recorded off the busboard. Defendant Smith kept the recording equipment in his office closet. Id., Exhibit B at 4, 5, 7, 9-11, 21, 23-26, 39-40; Esposito Certification, Exhibit B. A busboard is a personal distribution center for all the phone extensions for the system. It is supplied by the telephone company and distributes the calls throughout the building to each extension.

 Defendants claim that on June 7, 1993, and on at least one other occasion, defendant Smith "spot checked" the tapes for Marrerro's voice. When Smith didn't hear Marrerro, he allegedly moved on to another portion of the tape. Defendants claim that a total of 61 conversations were intercepted and recorded, of which only six were employees' personal calls. Id., Exhibits E-I.

 The recording devices were discovered by plaintiffs in July, 1993. Pascale found them in Smith's closet while a workman was removing a carpet from Smith's office. Pascale Certification, P4. Pascale showed Flaherty the recorders; together they played back the tapes and heard themselves in conversation with their respective wives. Id. at PP5-6; Flaherty Certification, PP6, 8.

 Pascale claims that his marriage became strained as a result of the recordings, as he and his wife often discussed personal matters over the telephone. He claims that he felt compelled to quit over this "breach of trust." Pascale Certification, PP 9-10. Flaherty eventually quit too. Flaherty Certification, PP9, 12.

 On January 24, 1994, plaintiffs filed suit under Title III of the Federal Omnibus Crime Control and Safe Streets Act, 18 U.S.C. ยงยง 2510-2521, and the New Jersey Wiretapping and Electronic Surveillance Act, N.J.S.A. 2A:156A-24.

 DISCUSSION

 Summary judgment is appropriate when there is no genuine issue of material fact such that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. The burden of showing that no genuine issue of material fact exists rests initially on the moving party. Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976), cert. denied, 429 U.S. 1038, 50 L. Ed. 2d 748, 97 S. Ct. 732 (1977). "This burden. . .may be discharged by 'showing' . . .that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). All evidence submitted must be viewed in the light most favorable to the nonmoving party. Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 Once a properly supported motion for summary judgment has been made, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). No issue for trial exists unless the nonmoving party can demonstrate sufficient evidence favoring ...


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