The opinion
[J-47-2024] [MO: Brobson, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
JASON WINIG, : No. 32 EAP 2023
:
Appellant : Appeal from the Order of the
: Commonwealth Court entered on
: February 24, 2023, at No. 1423 CD
v. : 2021, affirming the Order of the
: Court of Common Pleas of
: Philadelphia County, Civil Division,
THE OFFICE OF THE DISTRICT : entered on June 21, 2021, at No.
ATTORNEY OF PHILADELPHIA, : 200600251.
LAWRENCE S. KRASNER, ESQUIRE, :
BRANWEN MCNABB, ESQUIRE, : ARGUED: September 10, 2024
MICHELLE MICHELSON, ESQUIRE, :
WILLIAM BURROWS, ESQUIRE AND :
HELEN PARK, ESQUIRE, :
:
Appellees :
DISSENTING OPINION
JUSTICE MUNDY DECIDED: November 19, 2025
The Majority holds that the failure of the Legislature to explicitly waive the
affirmative defense of high public official immunity shields prosecutors from civil suits
seeking monetary damages for their alleged violations of the Wiretapping and Electronic
Surveillance Control Act (“Wiretap Act” or “Act”), 18 Pa.C.S. §§ 5701-5782, that occurred
while they were acting within the scope of their official duties. Majority Op. at 2. However,
a thorough examination of the complete language of the Wiretap Act, as well as its
surrounding legislative history, reveals that the General Assembly intended to allow suits
to proceed against “any person” for the reasons that follow. 18 Pa.C.S. § 5725(a)
(emphasis added). Accordingly, I dissent.
As explained by this Court in Commonwealth v. Blystone, 549 A.2d 81, 86 (Pa.
1988), the Wiretap Act “strikes a [careful] balance between citizens’ legitimate expectation
of privacy and the needs of law enforcement officials to combat crime[,]” as a result of
which, “the General Assembly has provided [important] safeguards to protect the
[personal] liberties of the citizens of the Commonwealth.” Id. To protect individual privacy
rights, the Act “contain[s] strict guidelines as to how and when electronic surveillance
methods shall be permitted.” Boettger v. Miklich, 633 A.2d 1146, 1148 (Pa. 1993).
Section 5725(a) of the Wiretap Act creates a cause of action for aggrieved
individuals to seek monetary damages from “any person” who violates the Wiretap Act.
18 Pa.C.S. § 5725(a). The Wiretap Act defines a “person” as “[a]ny employee or agent
of the United States or any state or political subdivision thereof, and any individual,
partnership, association, joint stock company, trust or corporation.” 18 Pa.C.S. § 5702.
Therefore, as the Majority acknowledges, prosecutors “qualify as ‘person[s]’ under the
Wiretap Act, both as individuals as well as employees of Philadelphia, a political
subdivision of the Commonwealth of Pennsylvania[]” and “technically fit within the broad
category of ‘persons’ that may face suit pursuant to Section 5725(a).” Majority Op. at 15.
Section 5725(b) goes on to waive “the doctrine of sovereign immunity” by stating
that “to the extent that the Commonwealth and any of its officers, officials[,] or employees
would be shielded from liability . . . such immunity is hereby waived for the purposes of
this section.” 18 Pa.C.S. § 5725(b). Therefore, the Wiretap Act subjects “any person”
who violates the Act to civil liability for their actions.
In reaching the conclusion that the General Assembly intended by its silence to not
waive the affirmative defense of high public official immunity, the Majority engages in a
statutory interpretation analysis. When courts engage in textual interpretation, they can,
and should, consider the context of surrounding statutes, case law, and legislative history.
[J-47-2024] [MO: Brobson, J.] - 2
See, e.g., Mimi Investors, LLC v. Tufano, 297 A.3d 1272, 1289 (Pa. 2023) (Mundy, J.,
concurring) (“[A]ny textual interpretation . . . can take into account such factors as the
context in which the words appear, historical considerations, dictionary definitions . . . ,
and the reasoning of other courts and commentators[.]” (emphasis omitted)).
When examining the context of surrounding statutes and legislative history, it is
evident that the intent of the legislature was to waive all forms of immunity protecting the
Commonwealth and its officials, and allow suits to proceed for violations of the Wiretap
Act. First, the current codification of high prosecutorial immunity was not in effect when
the Wiretap Act was passed. Second, the legislature clearly intended to waive all forms
of sovereign immunity existing at the time. Based on this history, to conclude that
individuals in law enforcement have immunity in a cause of action where the statute
explicitly states, “to the extent that the Commonwealth and any of its officers, officials or
employees would be shielded from liability . . . such immunity is hereby waived for the
purposes of this section[,]” 18 Pa.C.S. § 5725(b) (emphasis added), would be an absurd
result.
A brief recitation of the legislative history surrounding the enactment of the Wiretap
Act is instructive. In 1973, this Court abolished the common law defense of governmental
immunity, see Ayala v. Phila. Bd. of Pub. Ed., 305 A.2d 877, 881-83 (Pa. 1973), and in
1978, this Court similarly eliminated the doctrine of sovereign immunity regarding claims
against Commonwealth entities, see Mayle v. Pa. Dep’t of Highways, 388 A.2d 709, 720
(Pa. 1978). In response to these decisions, in September of 1978, the General Assembly
enacted P.L. 778, No. 152 (“Act 152”), reinstating the doctrine of sovereign immunity. 42
Pa.C.S. § 5110 reenacted at 42 Pa.C.S. § 8522. Then, on October 4, 1978, one week
after the effective date of Act 152, the same General Assembly enacted the Wiretap Act,
including the “waiver of sovereign immunity” provision. See 18 Pa.C.S. § 5725(b). When
[J-47-2024] [MO: Brobson, J.] - 3
the Act went into effect, the statutory sovereign immunities now codified in Pennsylvania’s
Tort Claims Acts did not exist. It was not until October 5, 1980 — two years after the
Wiretap Act became effective — that the General Assembly enacted what are commonly
referred to as the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541-8564
(“PSTCA”), and the Sovereign Immunity Act, 42 Pa.C.S. §§ 8521-8528 (“SIA”).
Because the PSTCA and SIA were enacted after the passage of the Wiretap Act,
the General Assembly could not, as the Majority contends, have intended to refer to our
modern conception of sovereign immunity. Instead, it is clear that the General Assembly
was referring to sovereign immunity in the common law context, which would include
governmental immunity, official immunity, high public official immunity, and prosecutorial
immunity.1
With this context, when examining the language of Act 152, the statutory
affirmation of the Commonwealth’s sovereign immunity, see 1 Pa.C.S. § 2310, it is clear
that the General Assembly intended to treat “sovereign and official immunity” as a
combined legal principle:
[T]he Commonwealth, and its officials and employees acting within the
scope of their duties, shall continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the General Assembly
shall specifically waive the immunity. When the General Assembly
specifically waives sovereign immunity, a claim against the Commonwealth
and its officials and employees [must be brought in the manner proscribed
in the relevant law.]
1 As discussed supra, when the General Assembly determined that any waiver of “the
immunity” had to be specific and explicit, it treated sovereign and high public official
immunities as one immunity for purposes of waiver. See 1 Pa.C.S. § 2310 (“[T]he
Commonwealth, and its officials and employees acting within the scope of their duties,
shall continue to enjoy sovereign and official immunity and remain immune from suit
except as the General Assembly shall specifically waive the immunity.” (emphasis
added)).
[J-47-2024] [MO: Brobson, J.] - 4
Id. (emphasis added). The General Assembly’s use of the definite article “the” when
referring to the Commonwealth’s ability to “waive the immunity” in the same sentence as
“sovereign and official immunity” demonstrates that the General Assembly intended to
treat the two immunities interchangeably. Id. (emphasis added). See also 1 Pa.C.S.
§ 1921(a) (“Every statute shall be construed, if possible, to give effect to all its
provisions.”). In other words, the General Assembly considered the immunities to be so
interrelated that it could waive both sovereign and high public official immunity by only
explicitly waiving “sovereign immunity.” This interpretation comports with the history of
the immunities because sovereign and high public official immunity are essentially two
halves of the same coin, as sovereign immunity prevents a government entity from being
sued without its consent while high public official immunity prevents government officials
from being sued without the government’s consent. See, e.g., Doe v. Franklin Cnty., 174
A.3d 593, 603 (Pa. 2017) (“[T]he principle of high public official immunity, while serving a
unique role in protecting public officials while acting in their official capacity on behalf of
the public, is grounded in the same general, overarching principle of immunity for the
public good, as derived from the English concept of sovereign immunity.” (emphasis
added)).
Further, as stated above, the same General Assembly passed Act 152 and the
Wiretap Act, meaning that the General Assembly possessed the same knowledge of
dictionary definitions, terms of art, and context, and intentionally chose to use identical
language. Therefore, it is a reasonable conclusion that the General Assembly also
intended the same construction of the term “sovereign immunity.” As Act 152 actively
uses the phrase “sovereign immunity” to refer to both sovereign and high public official
immunity, as discussed supra, the Wiretap Act, a statute passed merely a week later,
should be interpreted in the same manner.
[J-47-2024] [MO: Brobson, J.] - 5
This reading is further supported by the Wiretap Act itself, specifically by Sections
5713.1, 5717, and 5726. Taking each section in turn, Section 5713.1(c) refers to
defenses for “civil or criminal actions” against persons for violations that could only occur
via the actions of law enforcement officers in emergency hostage and barricade
situations. 18 Pa.C.S. § 5713.1. Similarly, Section 5717(a) authorizes the disclosure of
information to “the extent that such disclosure is appropriate to the proper performance
of official duties of the officer making or receiving the disclosure.” 18 Pa.C.S. § 5717(a).
Finally, Section 5726(a) creates an “action” in the Commonwealth Court for the removal
of a law enforcement officer or public official from office if the officer “intentionally” violated
provisions of the act. 18 Pa.C.S. § 5726(a).
However, under the Majority’s interpretation of the Wiretap Act, these provisions
would be rendered mere surplusage and would lead to absurd results if high public official
immunity exists in the Act, given that the immunity protects public officials who were acting
“within the scope of their official duties.” See 1 Pa.C.S. § 2310. For example, the defense
outlined in Section 5713.1(c) would be unnecessary, given that conducting wiretaps in an
official capacity would be well “within the scope of the[ officers’] official duties.” Further,
Section 5717(a)’s authorization to disclose information discovered in wiretaps would no
longer be necessary because all persons defined as law enforcement officers under the
Act would be immune from suit under high public official immunity. Finally, officials would
not need the good faith defense articulated in Section 5726(b) because those actions
would be prevented under high public official immunity. In other words, it does not make
sense for these provisions to exist if the officers cannot be held liable because of high
public official immunity. Thus, the Statutory Construction Act’s requirement for this Court
to avoid “absurd, impossible to execut[e] or unreasonable” interpretations should be
[J-47-2024] [MO: Brobson, J.] - 6
controlling, which supports the conclusion that the affirmative defense of high public
official immunity is waived by Section 5725(b). 1 Pa.C.S. § 1922.
For these reasons, I dissent.
Justice McCaffery joins this dissenting opinion.
[J-47-2024] [MO: Brobson, J.] - 7