Judge orders wiretapping charge dismissed against Unilife whistle-blower

(York) — A York County judge has dismissed a wiretapping charge filed against former Unilife Corporation vice president and whistle-blower Talbot “Todd” Smith.

A spokesman for the York County District Attorney’s Office said that dismissal will be appealed.

Smith had been charged with intercepting communications after he recorded a conversation with his supervisor, Ramin Mojdeh, according to court documents.

Smith had been relieved of his duties on June 14, 2012 pending a meeting with Mojdeh on June 21, 2012.

In the interim, Smith, who now lives in New Jersey, filed an ethics complaint against the company and Mojdeh, using the company’s third-party reporting site.

When Smith appeared for the June 21 meeting, he saw a copy of the complaint on Mojdeh’s desk. That was when he began using the voice notes application on his iPhone. Mojdeh was unaware he was being recorded, according to court documents.

The recording was discovered after Smith filed an ethics complaint with the U.S. Securities and Exchange commission, was fired from Unilife and filed a civil suit against the company.

The wiretapping charge was bound over for trial in August 2014 and Smith’s attorney, Ed Paskey, filed a pretrial motion for relief.

Paskey argued that telephones are exempt from the commonwealth’s Wiretap Act, and, therefore, Smith’s recording of Mojdeh is not an “intercept” under the act.

Last week, Judge Maria Musti Cook agreed with Paskey’s argument and ordered the charge against Smith dismissed.

Relying on a prior Pennsylvania Supreme Court decision, Cook held that since telephones are exempt from the Wiretap Act, the commonwealth was left with “no evidence that (Smith) attempted to, or successfully intercepted the communication.”

“Judge Cook followed the case law established by the Pennsylvania Supreme Court holding that a cell phone is not a device under the Wiretap Act,” Paskey said. “Her ruling supports what we have contended from day one — Todd’s actions were not criminal.”

Asked if he could explain why phones are exempt from the Wiretap Act, Paskey said, “You will have to ask the Pennsylvania Supreme Court or Siri. My focus is on the best interest of Todd Smith.”

Kyle King, administrator for the district attorney’s office, said Wednesday, “We are filing an appeal with the Pennsylvania Superior Court. Our office feels this is an issue of public importance, which best deserves an appellate review and commentary.”

Contact Rick Lee at 717-495-1782.

Related

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Unilife responds to lawsuit in letter to shareholders

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This article comes to us through a partnership between York Daily Record and WITF.