“Any Person” Includes High Public Officials: Justice Dougherty’s Dissent on the Waiver of Official Immunity under Pennsylvania’s Wiretap Act

“Any Person” Includes High Public Officials: Justice Dougherty’s Dissent on the Waiver of Official Immunity under Pennsylvania’s Wiretap Act

I. Introduction

This commentary examines Justice Kevin Dougherty’s dissenting opinion in Jason Winig v. Office of the District Attorney of Philadelphia, et al., No. 32 EAP 2023, decided by the Supreme Court of Pennsylvania (Eastern District) on November 19, 2025. The case arises under Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act”), 18 Pa.C.S. §§ 5701 et seq., and focuses on a narrow but crucial question:

  • Does Section 5725 of the Wiretap Act — which creates a civil cause of action for unlawful interceptions — merely waive sovereign immunity, or does it also waive official immunity, including the absolute immunity accorded to “high public officials” such as district attorneys?

The majority of the Court, in an opinion by Justice Brobson, held that Section 5725(b) waives only sovereign immunity, leaving other common-law and statutory immunities — notably high public official immunity — intact. On that basis, the majority concluded that the civil claim against the prosecutorial defendants was barred.

Justice Dougherty, joining in result with the other dissenters (Justices Mundy and McCaffery) but writing separately, argues that the majority’s reading

  • contradicts the actual statutory text,
  • produces “absurd” and irrational consequences, and
  • undermines the remedial and privacy-protective purpose of the Wiretap Act.

He advances a detailed theory of statutory interpretation under which Section 5725:

  1. authorizes a civil action against “any person” who violates the Act, and
  2. explicitly waives immunity for “the Commonwealth and any of its officers, officials or employees”, which he reads as a specific, text-based waiver not only of sovereign immunity but also of official immunity (including high public official immunity).

From this perspective, the statutory scheme is designed to ensure that no class of government actors — including high-ranking prosecutors — is categorically insulated from civil liability for intentional violations of the Wiretap Act.

This commentary analyzes that dissent in depth: its statutory and doctrinal background, its use of precedent, its interpretive method, and its potential implications for Pennsylvania public-entity and public-official liability, particularly in the realm of electronic surveillance and privacy.

II. Background and Procedural Context

A. The Parties

The appellant, Jason Winig, brought a civil action under Section 5725(a) of the Wiretap Act, alleging that his wire, electronic, or oral communications were intercepted, disclosed, or used in violation of the Act. He sued:

  • The Office of the District Attorney of Philadelphia (“DA’s Office”); and
  • Individual prosecutors: Lawrence S. Krasner, Esq., Branwen McNabb, Esq., Michelle Michelson, Esq., William Burrows, Esq., and Helen Park, Esq.

These “prosecutorial parties” invoked various immunities in response, including high public official immunity and prosecutorial immunity. The lower courts disposed of the case based on immunity, not on the merits of the alleged wiretap violations.

B. Statutory Provision at Issue: Section 5725 of the Wiretap Act

Section 5725 of the Wiretap Act creates a civil cause of action and contains an explicit immunity-waiver provision:

  • Section 5725(a): Cause of action
    “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; and shall be entitled to recover from any such person…”
  • Section 5725(b): Waiver of sovereign immunity
    “To the extent that the Commonwealth and any of its officers, officials or employees would be shielded from liability under this section by the doctrine of sovereign immunity, such immunity is hereby waived for the purposes of this section.”

Other relevant definitions and provisions of the Wiretap Act include:

  • Section 5702: Definitions of “person” and “aggrieved person,” with a proviso that these definitions apply “unless the context clearly indicates otherwise.”
  • Sections 5713, 5713.1, 5726: Provisions expressly addressing law enforcement officers, public officials, and public employees, including:
    • Good-faith defenses for law enforcement officers, and
    • Removal-from-office remedies for intentional violations by “any investigative or law enforcement officer, public official or public employee.”

C. Lower Court Rulings and the Supreme Court’s Majority Holding (as Portrayed in the Dissent)

From the dissent’s description, the procedural trajectory is:

  1. The Court of Common Pleas of Philadelphia County dismissed or rejected Winig’s Section 5725 claim against the DA’s Office and individual prosecutors on immunity grounds (focusing on high public official immunity).
  2. The Commonwealth Court affirmed, expressly holding that high public official immunity barred Winig’s civil cause of action under the Wiretap Act. It did not reach prosecutorial immunity.
  3. The Supreme Court majority (Justice Brobson) affirmed, holding that:
    • Section 5725(b) clearly and exclusively waives sovereign immunity, and does not waive high public official immunity or other non-sovereign immunities;
    • The DA’s Office is not a “person” subject to suit under Section 5725(a); and
    • High public official immunity remains available as an affirmative defense to the individual prosecutorial defendants in a civil Wiretap Act claim.

Justice Dougherty agrees with his dissenting colleagues that this reading produces “an absurd result” — in particular, a regime in which the General Assembly purported to waive immunity but, in practical terms, leaves many public actors functionally insulated from civil liability under the Wiretap Act.

III. Summary of Justice Dougherty’s Dissent

Justice Dougherty’s dissent offers a compact but conceptually rich alternative reading of Section 5725, built around several key propositions:

  1. Multiple overlapping immunity regimes exist in Pennsylvania — including sovereign immunity, governmental immunity, official immunity (absolute and qualified), and prosecutorial immunity. These immunities arise from both statute and common law.
  2. The Pennsylvania Constitution (art. I, § 11) and 1 Pa.C.S. § 2310 establish sovereign and official immunity as default rules, but expressly allow the General Assembly to “specifically waive” those immunities by statute.
  3. Section 5725(b) explicitly waives immunity for “the Commonwealth and any of its officers, officials or employees.” The deliberate inclusion of “officers” in addition to “officials or employees,” contrasted with the usual sovereign-immunity formulations, indicates an intent to waive more than just sovereign immunity narrowly understood.
  4. The phrase “any person” in Section 5725(a) — much like “no person” in the Mental Health and Intellectual Disability Act provision construed in Freach v. Commonwealth — must be read as sweeping in all public officials (high and low) as well as private actors. The dissent argues that:
    • “Any person” is a technical phrase with a broad, almost universal reach; and
    • In context, it is not confined by the narrower statutory definition of “person” in Section 5702.
  5. The Wiretap Act’s definitional section itself states that the statutory definitions apply “unless the context clearly indicates otherwise.” The dissent contends that:
    • The specific structure of Section 5725 — authorizing a claim against “any person,” then waiving immunity for “the Commonwealth and any of its officers, officials or employees” — clearly indicates a broader context in which “any person” must include those actors.
  6. The majority’s reading creates irrational and impractical gaps:
    • It makes it unclear who, if anyone, among Commonwealth actors is actually reachable under Section 5725(a);
    • It tends to exclude the Commonwealth itself and various public entities (e.g., a DA’s Office) from the category of “person” subject to the cause of action; and
    • It would, perversely, expose only low-level Commonwealth employees — but not local officials or high state officials — to civil liability for Wiretap Act violations.
  7. Statutory interpretation principles (such as avoiding surplusage, giving effect to every word, considering the mischief to be remedied, and construing waivers with specificity but not requiring “magic words”) support a reading under which:
    • Section 5725(b) clearly and specifically waives official immunity (including high public official immunity), in addition to sovereign immunity; but
    • The dissent does not go so far as to say that the legislature waived all forms of immunity (e.g., governmental immunity, prosecutorial immunity) under the Wiretap Act.
  8. Accordingly, Justice Dougherty would:
    • Reverse the Commonwealth Court’s holding that high public official immunity bars Winig’s suit under Section 5725(a); and
    • Remand to allow that court to consider, in the first instance, whether prosecutorial immunity nonetheless bars the specific claims.

In essence, the dissent sketches an alternative regime in which high public officials — including district attorneys and their assistants — can be civilly liable under the Wiretap Act, notwithstanding their common-law official immunity, because the legislature specifically and textually waived that immunity in Section 5725(b).

IV. Analysis

A. The Landscape of Immunities in Pennsylvania Law

1. Constitutional and Statutory Sovereign Immunity

Article I, Section 11 of the Pennsylvania Constitution declares: “Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”

The General Assembly operationalized this principle in 1 Pa.C.S. § 2310, expressly providing that:

  • The 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 where the General Assembly has “specifically waive[d] the immunity.”

The principal general waiver statute is the Sovereign Immunity Act, 42 Pa.C.S. § 8522, which:

  • Waives sovereign immunity in ten enumerated categories (e.g., vehicle liability, medical-professional liability),
  • For “Commonwealth parties,” defined as a Commonwealth agency and its employees acting within the scope of employment.

Other targeted waivers appear in:

  • 62 Pa.C.S. § 1702(b) (Commonwealth Procurement Code), and
  • 18 Pa.C.S. § 5725(b) (the Wiretap Act’s civil cause of action).

2. Governmental Immunity of Local Agencies

Local agencies (counties, municipalities, school districts, etc.) do not share the Commonwealth’s sovereign immunity, but they are cloaked in statutory governmental immunity under the Political Subdivision Tort Claims Act (PSTCA), 42 Pa.C.S. § 8541 et seq. Section 8541 generally provides immunity from damages for injuries caused by acts of the local agency or its employees, subject to limited exceptions in § 8542 (e.g., vehicle, real property defects).

Parallel provisions (42 Pa.C.S. §§ 8545–8546) limit the liability of local agency employees and restore to them various common-law defenses, including those resembling official immunity.

3. Common-law Official Immunity and High Public Official Immunity

Overlaying the statutory schemes is a body of common-law official immunity, discussed in cases such as:

  • Freach v. Commonwealth, 370 A.2d 1163 (Pa. 1977);
  • Reese v. Danforth, 406 A.2d 735 (Pa. 1979);
  • Lindner v. Mollan, 677 A.2d 1194 (Pa. 1996); and
  • DuBree v. Commonwealth, 393 A.2d 293 (Pa. 1978).

Two levels are generally recognized:

  1. High public officials: Certain officials with significant policy-making authority enjoy absolute immunity for actions taken within the scope of their duties. The test articulated in Montgomery v. City of Philadelphia, 140 A.2d 100 (Pa. 1958), looks to:
    • the nature of the official’s duties,
    • the importance of the office, and
    • the presence of policy-making functions.
  2. Other public officers and employees: Many receive a more limited, qualified immunity — its availability depends on circumstances such as the function performed and good faith.

Some individuals in public service are not “public officers” at all for immunity purposes (they are “mere public employees”), depending on whether their role encompasses independent public duties that are part of the sovereignty of the state. Reese emphasizes that it is the nature of the office, powers, and responsibilities that matters, not simply public funding or statutory authorization.

Crucially, in Doe v. Franklin County, 174 A.3d 593 (Pa. 2017), the Court reiterated that this common-law privilege of official immunity has not been abrogated by the legislature except where statutory waivers clearly apply.

4. Prosecutorial Immunity

Separate from “high public official” immunity, prosecutors frequently invoke prosecutorial immunity, which is function-based and typically absolute for activities “intimately associated with the judicial phase of the criminal process” (e.g. deciding whether to prosecute, presenting evidence). Although Justice Dougherty does not fully analyze prosecutorial immunity (because the Commonwealth Court did not reach it), he acknowledges that it remains an “outstanding issue” that should be considered on remand if high public official immunity is deemed waived under the Wiretap Act.

B. Precedents Cited and How They Shape the Dissent

Justice Dougherty’s reasoning is heavily precedent-driven. The key cases serve both as doctrinal anchors and as interpretive analogues.

1. Freach v. Commonwealth, 370 A.2d 1163 (Pa. 1977)

In Freach, the plaintiffs brought claims under the Mental Health and Intellectual Disability Act of 1966. The relevant statutory provision (Section 603, 50 P.S. § 4603) said:

“No person … shall be held civilly or criminally liable for any diagnosis, opinion, report or anything done pursuant to the provisions of this act if he acted in good faith and not falsely, corruptly, maliciously, or without reasonable cause.”

The Commonwealth Court had held that prosecutors were protected by high public official immunity. The Supreme Court reversed, holding that Section 603 itself set the standard of liability. The phrase “no person” was interpreted to:

  • include all Commonwealth and governmental officials, whether high or low, and private persons; and
  • supersede common-law official immunity for actions governed by that statutory good-faith standard.

Importantly, the Court reasoned that the negative implication of “no person” was that any person could be held liable if they acted falsely, corruptly, maliciously, or without reasonable cause. Thus, the statute both granted a limited immunity and, by implication, displaced broader common-law immunities.

Justice Dougherty uses Freach as a direct analogue:

  • There, “no person” was “broad enough to include all officials of the Commonwealth and its governmental components whether ‘high’ or otherwise, as well as private persons.”
  • Here, he argues, “any person” in Section 5725(a) should be understood as the mirror image of “no person,” similarly broad in scope and capable of encompassing high public officials.

He further notes that the Court reaffirmed this reading of Section 603 in Heifetz v. Philadelphia State Hospital, 393 A.2d 1160 (Pa. 1978), even after sovereign immunity had been abolished and then revived by statute, signaling that Freach’s approach to statutory displacement of common-law official immunity remained valid.

2. Doe v. Franklin County, 174 A.3d 593 (Pa. 2017)

Doe underscored two principles:

  1. Common-law official immunity remains intact except when specifically waived by statute.
  2. Waiver provisions are to be strictly construed, and the “best indication” of legislative intent is the plain statutory language.

The majority relies heavily on this strict construction principle. Justice Dougherty accepts the premise but contends that Section 5725 meets the requirement: its structure and wording, properly construed, demonstrate a specific and explicit intent to waive official immunity alongside sovereign immunity.

3. Golden Gate Nat’l Senior Care LLC, 194 A.3d 1010 (Pa. 2018)

In Golden Gate, the Court interpreted a provision of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) that allowed civil penalties to be set “in favor of the person in interest.” Although the UTPCPL defined “person” in a way that did not include the Commonwealth, the Court held that the Commonwealth qualified as a “person in interest” under Section 4.1, emphasizing:

  • If the legislature had intended to limit the remedy to the defined category of “person,” it would have used that defined term; instead, it used the broader phrase “person in interest.”
  • Courts must avoid surplusage and presume that different words carry different meanings.

Justice Dougherty uses Golden Gate to justify treating “any person” in Section 5725(a) as a distinct, broader term than the defined term “person” in Section 5702:

  • Had the General Assembly intended to incorporate the narrower definition of “person,” it would have simply written “aggrieved person” or “person.”
  • Instead, it repeatedly used “any person” and “any such person,” signaling a deliberate departure from defined terms and justifying a correspondingly broad interpretation.

4. Dresser Industries, Inc. v. Department of Environmental Resources, 604 A.2d 1177 (Pa. Cmwlth. 1992)

Dresser is cited to rebut the idea that a waiver must always declare “immunity is waived” in those exact words. The Commonwealth Court recognized that while waivers must be specific, they are “not confined to the specific words ‘immunity is waived.’”

Justice Dougherty pairs this with U.S. Supreme Court examples (discussed below) to argue against the majority’s implied demand for “magic words” evidencing waiver.

5. U.S. Supreme Court Cases: F.A.A. v. Cooper and Lac du Flambeau Band v. Coughlin

Justice Dougherty cites two U.S. Supreme Court decisions to emphasize how courts should apply the “clear statement” rule for sovereign immunity:

  • F.A.A. v. Cooper, 566 U.S. 284 (2012): The Court described the sovereign-immunity canon as a tool of statutory interpretation, not a trump card that displaces all other interpretive methods. The scope of the waiver must be “clearly discernable” from the statutory text “in light of traditional interpretive tools.”
  • Lac du Flambeau Band v. Coughlin, 599 U.S. 382 (2023): Reiterated that the clear-statement requirement does not impose a “magic words” requirement; instead, courts ask whether Congress’s decision to abrogate immunity is clearly discernible after applying ordinary interpretive techniques.

Justice Dougherty invokes these cases to criticize the majority’s apparent stance that any ambiguity is fatal to a claimed waiver of high public official immunity:

  • He stresses that courts must first deploy normal interpretive tools — examining structure, context, purpose, and canons like avoiding surplusage and absurdity — before concluding the statute is too ambiguous to effect a waiver.
  • Only if ambiguity persists after that process should the scale tip in favor of preserving immunity.

6. Other Pennsylvania Cases Cited

  • Lindner v. Mollan, 677 A.2d 1194 (Pa. 1996): Used by the dissent to highlight the potential for irrational disparities in immunity between state and local officials if statutes are read in certain ways (e.g., Governor vs. Mayor). Justice Dougherty invokes this as a cautionary example against interpretive outcomes that create arbitrary distinctions.
  • Commonwealth v. Spangler, 809 A.2d 234 (Pa. 2002): Cited for the proposition that the Wiretap Act’s purpose includes the protection of privacy, which supports reading Section 5725 in a way that allows robust remedies for violations, including by government officials.

C. The Dissent’s Legal Reasoning: Interpreting Section 5725

Justice Dougherty’s reasoning can be organized into several interpretive moves.

1. The Significance of “Any Person” in Section 5725(a)

The starting point is the repeated use of the phrase “any person” in Section 5725(a):

“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; and shall be entitled to recover from any such person…”

Justice Dougherty underscores several points:

  • “Any person” is not defined in Section 5702; only “person” and “aggrieved person” are.
  • When the legislature uses a more expansive term than the defined one, courts should treat that as intentional, not as surplusage.
  • Drawing on Freach, the dissent argues that “any person” is broad enough to include high public officials as potential defendants.

He also notes that Section 5702 itself states that definitions apply only “unless the context clearly indicates otherwise.” The special structure of Section 5725 — pairing “any person” with a specific waiver for “the Commonwealth and any of its officers, officials or employees” — is precisely the kind of context that “clearly indicates otherwise.”

2. Surplusage and the Redundancy Problem

The dissent emphasizes the surplusage canon:

  • If “any person” in Section 5725(a) were automatically constrained by the Section 5702 definition of “person,” which already begins with “any,” then the use of “any” in Section 5725(a) would be redundant.
  • Likewise, if the legislature did not mean to reach the Commonwealth and its officers through “any person,” then the explicit waiver of sovereign immunity for “the Commonwealth” in Section 5725(b) is mysterious; why waive immunity for an entity that is not within the scope of potential defendants?

Under standard interpretive practice, courts must assume the legislature did not intend to include meaningless words. Thus, “any person” must be doing real work — extending the cause of action beyond just the finite class captured by the formal definition of “person” and clearly including public actors.

3. The Expanded Waiver Language in Section 5725(b)

A core pillar of the dissent is the distinctive phrasing of Section 5725(b):

“To the extent that the Commonwealth and any of its officers, officials or employees would be shielded from liability under this section by the doctrine of sovereign immunity, such immunity is hereby waived for the purposes of this section.”

Compare this with the general formulation in 1 Pa.C.S. § 2310, where sovereign immunity protects:

  • “the Commonwealth” and
  • “its officials and employees acting within the scope of their duties.”

Section 5725(b) goes further by inserting the word “officers”, yielding a list:

  • “the Commonwealth and any of its officers, officials or employees.”

Justice Dougherty draws two inferences:

  1. The addition of “officers” is deliberate and meaningful: it suggests an intention to reach the category of public officers who are the typical bearers of common-law official immunity, including high public officials.
  2. Given that 1 Pa.C.S. § 2310 expressly speaks of “sovereign immunity and official immunity,” a statute that singles out “officers, officials or employees” in the context of a waiver is reasonably read as targeting official immunity as well as sovereign immunity.

In other words, the dissent views “officers” in Section 5725(b) as the textual hook indicating that the legislature meant to waive official immunity (including high public official immunity), not just the narrower doctrine of sovereign immunity.

4. The Absurd and Anomalous Consequences of the Majority’s Reading

Justice Dougherty criticizes the majority’s approach as producing irrational and practically unworkable outcomes, contrary to 1 Pa.C.S. § 1921(c)(6), which authorizes courts to consider “the consequences of a particular interpretation.”

Under the majority’s reading:

  • The waiver in Section 5725(b) only prevents the Commonwealth and its officers/officials/employees from asserting sovereign immunity — not from asserting high public official immunity or other forms of official immunity.
  • Yet many actors capable of violating the Wiretap Act are precisely those with official immunity (e.g., district attorneys, high-ranking law enforcement, senior state officials).
  • By contrast, lower-level Commonwealth employees — who are often not high public officials — might be more exposed to liability, while their local counterparts remain protected by governmental immunity if applicable.

This leads to a puzzling patchwork in which:

  • The Commonwealth itself may not be a “person” subject to suit under Section 5725(a),
  • The DA’s Office is, according to the majority’s own footnote, not a “person” subject to suit, and
  • Only a narrow, somewhat indeterminate band of state actors are actually exposed to civil liability under the Act.

Justice Dougherty characterizes this as requiring a “Venn diagram” to identify who can be sued, a strong signal — in his view — that the majority’s interpretation fails the test of coherence and intelligibility that sound statutory construction demands.

5. Legislative Context and the 1978 Timeline

The dissent situates Section 5725 in its historical context:

  • May 1978: The Court in Mayle v. Pennsylvania Department of Highways, 388 A.2d 709 (Pa. 1978), abolished common-law sovereign immunity.
  • September 28, 1978: The General Assembly enacted Act 152, codifying 1 Pa.C.S. § 2310 and reviving sovereign immunity (and official immunity) by statute.
  • October 4, 1978: The same General Assembly enacted the Wiretap Act, including the Section 5725(b) waiver provision.
  • October 5, 1978: This Court decided Rhines v. Herzel, 392 A.2d 298 (Pa. 1978), and Heifetz v. Philadelphia State Hospital, 393 A.2d 1160 (Pa. 1978), reaffirming Freach’s core holding about statutory displacement of common-law official immunity.

For Justice Dougherty, this cluster of developments suggests that:

  • The legislature was acutely aware of both sovereign immunity and official immunity at the time it drafted Section 5725.
  • The distinctive language of Section 5725(b) — especially its reach to “officers” — should be read in light of that awareness as a deliberate, targeted waiver of at least some forms of official immunity.

6. Limited Scope: Waiver of Official Immunity, Not “All” Immunity

Justice Dougherty explicitly distances himself from the broader position of Justice Mundy (joined by Justice McCaffery), who suggests that the legislature’s use of “sovereign immunity” in the common-law sense might encompass governmental, official, high public official, and prosecutorial immunities alike.

He takes a narrower, more incremental approach:

  • Only official immunity is at issue in this appeal, because the lower courts relied on high public official immunity.
  • Based on the textual and structural cues in Section 5725, he concludes the General Assembly specifically waived official immunity (including the high-public-official variant) for claims under that section.
  • He sees no need to decide whether governmental immunity or prosecutorial immunity are also waived:

“Only official immunity is at issue in this appeal. … Based on its unique structure, including its use of the capacious phrase ‘any person’ and its inclusion of the specific word ‘officers,’ Section 5725 of the Wiretap Act clearly and unequivocally waives official, in addition to sovereign, immunity. There is no need to decide any more than that.”

This restraint is crucial for understanding the doctrinal impact he envisions: a targeted but significant change that leaves room for prosecutors to invoke prosecutorial immunity where appropriate.

D. Relationship to Other Wiretap Act Provisions

Justice Dougherty’s reading also draws support from the broader architecture of the Wiretap Act, which:

  • Emphasizes privacy as a central purpose (Spangler),
  • Contains detailed procedures that only law enforcement can lawfully use to obtain interceptions, and
  • Specifically anticipates civil litigation against law enforcement personnel.

Examples:

  • Section 5713(b): “Expressly contemplates the filing of civil suits for damages against law enforcement officers under § 5725 for intentional violations of § 5713(a).”
  • Section 5713.1(c): Provides that good faith reliance on certain provisions:
    • Shall be a complete defense to civil or criminal actions against “any law enforcement officer or agency.”
  • Section 5726(a): Allows an aggrieved person to seek:
    • Removal from office or employment of “any investigative or law enforcement officer, public official or public employee” who intentionally violates the Act.

Justice Dougherty reasons that it would be incoherent to:

  • Allow removal from office for intentional violations;
  • Provide a good-faith defense specifically tailored for law enforcement officers; yet
  • Leave many of those same actors effectively immune from civil damages liability by preserving high public official immunity.

His interpretation — that official immunity is waived in Section 5725 — harmonizes these provisions, ensuring that:

  • Law enforcement and high public officials face potential civil liability when they act outside statutory bounds,
  • While still allowing them to invoke good-faith defenses and possibly prosecutorial immunity, depending on the function performed.

E. Potential Impact and Future Significance

Because this is a dissent, it does not establish binding precedent. Nonetheless, it has several important potential effects.

1. A Roadmap for Future Litigants and Courts

The dissent provides a fully developed interpretive framework that:

  • Identifies textual features (“any person,” “officers, officials or employees”);
  • Grounds them in Pennsylvania’s immunity doctrine and statutory scheme; and
  • Integrates national-level interpretive guidance (Cooper, Coughlin) on clear-statement rules.

Future litigants challenging or defending against immunity in Wiretap Act cases — and potentially under other remedial statutes with similar wording — are likely to rely heavily on this dissenting analysis.

2. Possible Legislative Response

If the General Assembly disagrees with the majority’s narrow view of the waiver in Section 5725, Justice Dougherty’s dissent provides a clear template for statutory clarification:

  • The legislature could amend Section 5725(b) to state explicitly that official immunity (including high public official immunity) is waived for purposes of civil actions under that section.
  • Alternatively, it could adjust definitions or cross-references to remove doubt that the Commonwealth and its instrumentalities qualify as “persons” for purposes of Section 5725(a).

3. Influence on Interpretive Methodology

The dissent pushes back against a rigid, hyper-textual approach to immunity waivers that treats any ambiguity as dispositive in favor of the government. It champions a more nuanced method:

  • Use standard tools of statutory interpretation (structure, context, canons).
  • Then ask whether, in light of those tools, the waiver is “clearly discernable.”

This could affect how Pennsylvania courts approach immunity questions under a wide range of statutes that contain remedial provisions and partial waivers.

4. Accountability for High Public Officials in Surveillance Contexts

Substantively, the dissent’s vision would materially change the accountability landscape:

  • High-level prosecutors and other senior officials could face civil damages liability for intentional or unlawful interceptions under the Wiretap Act.
  • This would complement (not replace) disciplinary and removal remedies, providing a private enforcement tool in addition to public oversight.
  • At the same time, prosecutors could still invoke prosecutorial immunity where they act in core prosecutorial roles, preserving an important shield for legitimate prosecutorial decision-making.

Even as a dissent, this framework may inform internal policy-making in DA’s offices, law enforcement agencies, and other governmental units concerned about potential civil exposure under privacy statutes.

V. Complex Concepts Simplified

To make the legal concepts more accessible, this section explains them in plainer terms.

1. Sovereign Immunity

Sovereign immunity is the idea that you cannot sue the state itself (the “sovereign”) unless the legislature has specifically allowed it. In Pennsylvania:

  • The Constitution allows suits “as the Legislature may by law direct.”
  • 1 Pa.C.S. § 2310 and the Sovereign Immunity Act (42 Pa.C.S. § 8522) define and limit when the Commonwealth can be sued.

2. Governmental Immunity

Governmental immunity is similar, but applies to local governments like cities and counties. Under the Political Subdivision Tort Claims Act:

  • Local governments are generally protected from being sued for money damages.
  • There are specific exceptions (e.g., car accidents involving government vehicles, unsafe real property conditions).

3. Official Immunity and High Public Official Immunity

Official immunity protects individual public officials and employees from civil lawsuits over actions they take as part of their official duties. There are two main types:

  • High public official immunity (absolute):
    • Applies to top-level officials with significant authority (e.g., mayors, possibly district attorneys).
    • They cannot be sued for actions taken in the course of their official duties, even if those actions are alleged to be wrongful, subject to narrow exceptions.
  • Qualified official immunity:
    • Applies to many other public officers and employees.
    • They are shielded from liability unless they violate clearly established duties, act in bad faith, or exceed their authority, depending on the specific doctrine applied.

4. Prosecutorial Immunity

Prosecutorial immunity protects prosecutors from being sued over their decision-making and courtroom work (such as deciding to charge someone, presenting a case, or negotiating plea deals). It is generally:

  • Absolute for core prosecutorial functions directly tied to the criminal trial or charging decisions;
  • Qualified or sometimes unavailable for more administrative or investigative acts.

5. “Any Person” vs. “Person” in Statutes

Many statutes include a definitions section. For example, “person” might be defined as “any individual, corporation, partnership, etc.” But:

  • When the statute uses a different phrase like “any person” or “person in interest,” that can indicate that the legislature meant something broader than the defined term.
  • Courts then ask whether the context “clearly indicates” that a broader meaning was intended, as in Golden Gate and here in the Wiretap Act.

6. Clear-Statement Rule for Waivers of Immunity

Because immunity protects the public fisc and governmental functioning, courts require a clear statement from the legislature before finding that immunity has been waived.

However, “clear” does not mean “magic words.” Courts:

  • Examine the statute’s text, structure, context, and purpose using ordinary tools of interpretation;
  • Ask whether, after doing so, the intent to waive immunity is “clearly discernable” from the statute as a whole;
  • If uncertainty remains, they resolve that uncertainty in favor of preserving immunity.

7. Why This Matters in the Wiretap Context

The Wiretap Act governs highly intrusive forms of surveillance. Allowing immunities to swallow the remedies would:

  • Make it very difficult for individuals whose communications were unlawfully intercepted to obtain redress;
  • Reduce incentives for strict compliance with statutory safeguards by those most empowered to abuse surveillance (law enforcement and high officials);
  • Potentially undermine the Act’s core purpose of protecting privacy.

Justice Dougherty’s dissent aims to prevent those outcomes by ensuring that no category of public official is absolutely insulated from civil liability when they violate the Wiretap Act, unless another clearly applicable doctrine (like prosecutorial immunity for core prosecutorial acts) justifies such insulation.

VI. Conclusion

Justice Dougherty’s dissent in Winig v. Office of the District Attorney of Philadelphia presents a powerful alternative account of how Pennsylvania’s Wiretap Act — and, more broadly, statutory waivers of immunity — should be interpreted.

Key takeaways include:

  1. Textual Breadth of “Any Person”: Drawing on Freach, the dissent treats “any person” in Section 5725(a) as wide enough to include all officials, high and low, public and private, who might unlawfully intercept communications.
  2. Expanded Waiver for “Officers, Officials or Employees”: By adding “officers” to the usual sovereign-immunity formula, Section 5725(b) signals an intent to waive official immunity (including high public official immunity), not merely sovereign immunity in a narrow sense.
  3. Contextual and Structural Interpretation: The dissent insists that courts must read Section 5725 in the context of the Wiretap Act as a whole — including its privacy-protective purpose and its express focus on law enforcement misconduct — and must avoid interpretations that generate surplusage or absurd results.
  4. Qualified, Not Total, Erosion of Immunity: Justice Dougherty stops short of saying all immunities are waived. Instead, he would only remove the barrier of official immunity, leaving room for traditional defenses, including good faith and potentially prosecutorial immunity, to be considered on remand.
  5. Methodological Significance: The dissent resists an overly rigid application of the clear-statement rule for immunity waivers and embraces a more nuanced, holistic approach, consistent with modern U.S. Supreme Court guidance.

Although not controlling, the dissent is likely to be influential — as a template for legislative amendment, as a source of arguments in future litigation, and as a statement of a more accountability-oriented approach to governmental immunity in the context of statutory privacy protections.

At its core, Justice Dougherty’s opinion asserts that when the General Assembly says that “any person” who violates the Wiretap Act may be sued, and waives immunity for “the Commonwealth and any of its officers, officials or employees,” the legislature meant what it said: no official, however high-ranking, is categorically above the law of electronic surveillance.

Case Details

Year: 2025
Court: Supreme Court of Pennsylvania

Judge(s)

Dougherty, Kevin M.

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