Home / Fulltext Opinions / Supreme Court of Virginia / BUONOCORE v. KEENAN THE CHESAPEAKE & POTOMAC TELEPHONE CO. OF VA, ET. AL. (59728)







October 31, 1997

Record No. 962572








Diane McQ. Strickland, Judge

Present: Carrico, C.J., Compton, Lacy, Hassell, Keenan,

Kinser, JJ., and Gordon, Retired Justice

In this appeal, we consider whether Code ? 19.2-59
provides an employee a cause of action against his corporate
employer and its agent who conducted a warrantless search of the
employee’s home.

In November 1992, Linda Sue Taylor informed David R. Cundiff,
Deputy Sheriff of Franklin County, that her former boyfriend,
Daniel G. Buonocore, possessed illegal firearms in his home.
Taylor also informed Cundiff that Buonocore had taken without
authorization certain items of personal property belonging to his
employer, The Chesapeake and Potomac Telephone Company of
Virginia (C&P).[1] Cundiff related this
information to Special Agent Donald L. Harris of the United
States Department of the Treasury, Bureau of Alcohol, Tobacco and
Firearms (ATF), and to James D. Thompson, assistant manager of
security for C&P.

Harris obtained a federal warrant to search Buonocore’s home
for illegal firearms and invited Thompson to accompany him in the
search. Thompson went with the ATF agents and the sheriff’s
deputies to Buonocore’s home. Although no property belonging to
C&P was listed in the search warrant, Thompson opened some
cabinet doors and drawers in the home. When he saw several items
belonging to C&P in the cabinets, Thompson asked Buonocore
where he obtained the items. Buonocore replied, "Maybe I got
[them] from work."

Buonocore then asked Thompson to identify himself and, on
learning that Thompson worked for C&P, asked Thompson to
leave. Thompson did not leave, however, because Cundiff told him
that he had a right to be present during the search. At no time
did Thompson or any representative of C&P ask Buonocore for
permission to search his home.

Buonocore filed a motion for judgment against C&P and
Thompson (collectively, C&P) alleging damages resulting from
the search, which he contends was unlawfully conducted in
violation of Code ? 19.2-59.[2] C&P moved for summary
judgment on the ground that Code ? 19.2-59 regulates the
conduct of governmental authorities only and, therefore, did not
provide a basis for a cause of action against C&P. The trial
court awarded summary judgment to C&P, stating that Code
? 19.2-59 did not afford Buonocore a cause of action
against a private corporation and its employee.

On appeal, Buonocore argues that the plain language of Code
? 19.2-59 provides him a cause of action based on C&P’s
illegal search of his residence. He contends that the
legislature’s use of the phrase "any other person" in
describing individuals subject to the statute’s restrictions
plainly demonstrates the legislature’s intent to restrict the
conduct of governmental agents, private entities, and
individuals. Buonocore also asserts that Durham Bros. and Co.
v. Woodson
, 155 Va. 93, 154 S.E. 485 (1930), in which we
interpreted a predecessor statute to Code ? 19.2-59,
recognized such a cause of action against a private corporation
and its employee. We disagree with Buonocore’s argument.

Initially, we consider Buonocore’s contention that the trial
court erred in disposing of the case by summary judgment. A trial
court may enter summary judgment if no material fact is genuinely
in dispute. Rule 3:18. In considering such a motion, the trial
court must adopt those inferences from the facts that are most
favorable to the nonmoving party. Carson v. LeBlanc, 245
Va. 135, 139-40, 427 S.E.2d 189, 192 (1993). Here, however,
Buonocore does not contend that any material facts were disputed,
or that the trial court failed to adopt inferences from the facts
that were most favorable to him. Therefore, we find no merit in
Buonocore’s objection to the trial court’s use of the summary
judgment procedure. See id.

We next consider Buonocore’s assertion that Code
? 19.2-59 provides a cause of action against C&P. Code
? 19.2-59 states, in relevant part, that

[n]o officer of the law or any other person shall
search any place, thing or person, except by virtue of
and under a warrant issued by a proper officer. Any
officer or other person searching any place, thing or
person otherwise than by virtue of and under a search
warrant, shall be guilty of malfeasance in office. Any
officer or person violating the provisions of this
section shall be liable to any person aggrieved thereby
in both compensatory and punitive damages.


This section proscribes certain conduct by an "officer of
the law or any other person." However, the statute further
states that if such an individual violates this proscription,
that person "shall be guilty of malfeasance in office."
This language is ambiguous because it does not plainly reconcile
the use of the term "any other person" with the term
"malfeasance in office."

Since Code ? 19.2-59 is ambiguous, we apply settled
rules of statutory construction to determine the legislature’s
intent in its use of the language in question. USAA Cas. Ins.
Co. v. Alexander
, 248 Va. 185, 194, 445 S.E.2d 145, 150
(1994); City of Virginia Beach v. Bd. of Supervisors, 246
Va. 233, 236, 435 S.E.2d 382, 384 (1993); Wertz v. Grubbs,
245 Va. 67, 70, 425 S.E.2d 500, 501 (1993). We will not construe
a statute by singling out a particular term or phrase, but will
construe the words and terms at issue in the context of the other
language used in the statute. See City of Virginia
, 246 Va. at 236-37, 435 S.E.2d at 384; Wertz,
245 Va. at 70, 425 S.E.2d at 501; VEPCO v. Bd. of Supervisors,
226 Va. 382, 387-88, 309 S.E.2d 308, 311 (1983).

Applying these principles, we conclude that Code
? 19.2-59 does not create a cause of action against a
private entity or an individual. Considered as a whole, the
statutory language demonstrates a legislative intent to deter the
conduct of only those individuals who, by virtue of their
governmental employment, can be found guilty of malfeasance in
office. This construction is supported by the fact that, in 1978,
the legislature amended Code ? 19.2-59, removing the word
"misdemeanor" and adding in its place the term
"malfeasance in office." Thus, the amendment clarified
that the statute does not apply to private entities and
individuals because only law enforcement officers and other
governmental agents can be found guilty of malfeasance in office.

This construction also comports with the body of case law
holding that Code ? 19.2-59 affords only the same
substantive protection as that provided by the Fourth Amendment. See
Thims v. Commonwealth, 218 Va. 85, 93, 235 S.E.2d 443, 448
(1977); Carter v. Commonwealth, 209 Va. 317, 320, 163
S.E.2d 589, 592 (1968); One 1963 Chevrolet Pickup Truck v.
, 208 Va. 506, 508, 158 S.E.2d 755, 757 (1968); Zimmerman
v. Town of Bedford
, 134 Va. 787, 801-02, 115 S.E. 362, 366
(1922). The Fourth Amendment prohibition against unreasonable
searches and seizures does not apply to private individuals
acting on their own initiative. United States v. Jacobsen,
466 U.S. 109, 113 (1984); Harmon v. Commonwealth, 209 Va.
574, 577, 166 S.E.2d 232, 234 (1969).

Here, Thompson did not act at the direction of any law
enforcement officer. Since he searched the cabinets in
Buonocore’s home on his own initiative, that search was not
conduct proscribed by the Fourth Amendment or by Code
? 19.2-59. See id.

Finally, we disagree with Buonocore’s contention that Durham
, 155 Va. at 93, 154 S.E. at 485, requires that we
recognize a cause of action against C&P under Code
? 19.2-59. That case was decided before the 1978 amendment
to Code ? 19.2-59 clarified that the only persons covered
by the statute are those who can be found guilty of malfeasance
in office.

For these reasons, we will affirm the trial court’s judgment.




[1] C&P is now known as Bell
Atlantic-Virginia, Inc.

[2] In his motion for judgment,
Buonocore also alleged an action for trespass. However, that
claim was dismissed without prejudice by nonsuit in accordance
with Code ? 8.01-380.