Pennsylvania Common Law

  1. Invasion of Privacy Torts

    1. Introduction

      Pennsylvania has both a statutory right to publicity and common law rights to privacy. The four forms of privacy recognized in Pennsylvania are defined under Sections 625B through 652E of the Restatement (Second) of Torts. They are: intrusion upon seclusion, appropriation of name or likeness, publicity given to private life, and publicity placing a person in a false light. Though some of these claims require actual publication of a matter that intrudes upon a plaintiff’s privacy, some do not. This permits a WMC victim to pursue, for instance, claims based on the collection of private information before publication or distribution. Common law privacy claims have been successfully pursued based on the publication of nude images without a plaintiff’s consent.

      There is uncertainty in Pennsylvania courts as to whether Pennsylvania’s codified privacy statutes have absorbed the common law claims of privacy, but courts are still recognizing both common law and statutory claims.1

    2. Elements

      1. (1) Intrusion Upon Seclusion

          (a) One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns; and

          (b) The intrusion would be highly offensive to a reasonable person. 2

            (1) Note: “The form of invasion of privacy covered by this Section does not depend upon any publicity given to the person whose interest is invaded or to his affairs. It consists solely of an intentional interference with his interest in solitude or seclusion, either as to his person or as to his private affairs or concerns, of a kind that would be highly offensive to a reasonable man.

            (2) The invasion may be by physical intrusion into a place in which the plaintiff has secluded himself, as when the defendant forces his way into the plaintiff’s room in a hotel or insists over the plaintiff’s objection in entering his home. It may also be by the use of the defendant's senses, with or without mechanical aids, to oversee or overhear the plaintiff’s private affairs, as by looking into his upstairs windows with binoculars or tapping his telephone wires. It may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents. The intrusion itself makes the defendant subject to liability, even though there is no publication or other use of any kind of the photograph or information outlined.

            (3) The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs. Thus there is no liability for the examination of a public record concerning the plaintiff, or of documents that the plaintiff is required to keep and make available for public inspection. Nor is there liability for observing him or even taking his photograph while he is walking on the public highway, since he is not then in seclusion, and his appearance is public and open to the public eye. Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or lack of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.

            (4) There is likewise no liability unless the interference with the plaintiff’s seclusion is a substantial one, of a kind that would be highly offensive to the ordinary reasonable man, as the result of conduct to which the reasonable man would strongly object. Thus there is no liability for knocking at the plaintiff’s door, or calling him to the telephone on one occasion or even two or three, to demand payment of a debt. It is only when the telephone calls are repeated with such persistence and frequency as to amount to a course of hounding the plaintiff, that becomes a substantial burden to his existence, that his privacy is invaded.”3

        (2) Appropriation of Name or Likeness

          (a) One who appropriates to his own use or benefit the name or likeness of another.4

            (1) Note this privacy tort does not require the use for commercial purposes. The use of another’s name or likeness for personal purposes or benefits suffices.

        (3) Publicity Given to Private Life

          (a) Defendant gives publicity to a matter that concerns the private life of another;

          (b) The matter is publicized;

          (c) The publication is in a manner that would be “highly offensive” to a reasonable person; and

          (d) The matter is not one of legitimate public concern.5

        (4) Publicity Placing Person In False Light

          (a) Defendant gives publicity to a matter concerning another that places the other before the public in a false light;

          (b) The false light in which the other was placed would be highly offensive to a reasonable person; and

          (c) The defendant had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.6

            (1) Note this claim is also applied in a similar analysis as a claim of defamation. It is not necessary for the false light to be defamatory, though it often is the case that defamation claims can also be encompassed by a False Light claim.

    3. Cases

      1. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525 (E.D. Pa. 1982)

        • Procedural Posture: Plaintiff appealed from summary judgment in favor of defendant on claims of libel and false light.
        • Law: Invasion of privacy (false light, publication of private facts), libel
        • (c) Facts: Plaintiff agreed to model nude in a bathtub for defendant, a professional photographer. When plaintiff asked defendant what his intentions were for use of the photo, defendant responded he planned to publish a book. Plaintiff did not respond. Several years later defendant sought to have this photo, among others, published in The Village Voice, a weekly newspaper. Defendant successfully published several photographs in the Voice, including plaintiff’s, with a caption underneath plaintiff’s photo indicating plaintiff’s name and “Model.” Plaintiff learned of the publication and filed a claim for invasion of privacy, including false light and publicity given to private facts, and a claim for libel.
        • Outcome: The court upheld the entry of judgment for defendant on the plaintiff’s claim for libel, noting the photograph of defendant was neither obscene nor suggestive of sexual promiscuity, and thus did not fall into the categories of defamation per se. The court similarly ruled on the false light claim, finding no “falsity” to the photograph of plaintiff bathing, and thus no indication that a reasonable person would be offended by similarly being photographed. The court did find that the plaintiff could proceed with her claims for publication of private facts, noting, “publication of a nude photograph of a private individual would normally meet the standards” of Restatement (Second) § 625D. As publication in the Voice exceeded the scope of consent plaintiff gave for use in defendant’s book, the defendant was precluded from relief on that claim. Additionally, the court found the photograph was not “newsworthy” and served no “legitimate purpose of disseminating news, and needlessly exposes aspects of the plaintiff’s private life to the public.”
        • Special Notes: the case concerned the dismissal of plaintiff’s claims on defendant’s motion for summary judgment. Thus, the court merely reversed the entry of judgment against plaintiff’s private facts claim, which would allow it to proceed to trial.
      2. Mallory v. S & S Publishers , 168 F. Supp. 3d 760, 769 (E.D. Pa. 2016)

        • Procedural Posture: Defendant moved to dismiss Plaintiff’s claims.
        • Law: defamation, invasion of privacy (false light)
        • Facts: Plaintiff brought suit against a former lover who had included descriptions of their relationship in a biography, and the biographer’s publishing company. Plaintiff claimed portions of the biography that included descriptions of the plaintiff as a “star seducer,” describing their relationship as “100 percent sexual,” and as a person who exchanged sexual activity for money, were defamatory, defamatory per se, and painted plaintiff in a false light.
        • Outcome: Plaintiffs alleged that defendants had stated “Plaintiff was essentially a venal whore whose relationship with [Defendant] was solely for money and professional advancement,” and that this was “not only untrue but additionally places Plaintiff in a false light when her own achievements as well as loving relationship with [Defendant] have been pleaded.” The court took these allegations as true, and denied dismissal of the false light claims. The court noted plaintiff sufficiently pled that the defendants made false statements that could be found highly offensive to a reasonable person. (For rulings on defamation claims, see below.)
    4. Practice Pointers

    • Defenses to claims of invasion of privacy under Pennsylvania law include the plaintiff giving consent to the invasive actions, or that the statements/activities being depicted are newsworthy.7

    • The statute of limitations for an invasion of privacy claim is one year.8 Claims interpreted by the court to concern a plaintiff’s right to property, such as claims of right to publicity, may be subject to a two year statute of limitation governing “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.9

    1. See Facenda v. NFL Films, Inc., 488 F. Supp. 2d 491, 513 (E.D. Pa. 2007) (finding 42 Pa. Cons. Stat. § 8316 has absorbed the tort of misappropriation of identity); but see Lewis v. Marriott Int’l, Inc., 527 F. Supp. 2d 422, 429 (E.D. Pa. 2007) (hesitating to do same). 

    2. Restatement (Second) of Torts § 652B (1977). 

    3. Restatement (Second) of Torts § 652B (1977). 

    4. Restatement (Second) of Torts § 625C (1977). 

    5. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 529 (E.D. Pa. 1982); see also Restatement (Second) of Torts § 652D (1977). 

    6. Fogel v. Forbes, Inc., 500 F. Supp. 1081, 1088 (E.D. Pa. 1980); see also Restatement (Second) of Torts § 652E (1977). 

    7. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 530 (E.D. Pa. 1982) (finding a picture printed in a magazine of plaintiff in a bathtub without her consent did not serve a “legitimate purpose of disseminating news”); but see Corabi v. Curtis Pub. Co., 273 A.2d 899, 918 (Pa. 1971). 

    8. Pa. Cons. Stat. § 5523(1). 

    9. Pa. Cons. Stat. § 5524(7). 

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  2. Violation of Right of Publicity

    1. Introduction

    2. Similar to a statutory claim based on a violation of a right of publicity, a common law claim can also be asserted if a WMC victim’s name or likeness is used for the defendant’s commercial gain.

    3. Elements

      1. (1) Misappropriation of Publicity

          (a) Defendant appropriates a valuable name or likeness,

          (b) Without authorization,

          (c) To Defendant’s commercial advantage.1

    4. Practice Pointers

      Claims interpreted by the court as concerning a plaintiff’s right to property, such as claims of right to publicity, may be subject to a two year statute of limitation governing “[a]ny other action or proceeding to recover damages for injury to person or property which is founded on negligent, intentional, or otherwise tortious conduct.”2

    1. Lewis v. Marriott Int’l, Inc., 527 F. Supp. 2d 422, 428 (E.D. Pa. 2007). 

    2. Pa. Cons. Stat. § 5524(7). 

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  3. Defamation

    1. Introduction

        Pennsylvania follows the Restatement (Second) of Torts in defining whether a communication is capable of being defamatory. There are two types of defamation under Pennsylvania law, requiring different levels of proof: defamation per se, and the remaining claims for defamatory statements that do not fall into a per se category.

        Per se defamation under the Restatement (First) of Torts § 569 (1938), adopted by Pennsylvania, is when a “publication is of such a character as to make the publisher liable for defamation although no special harm results therefrom, unless it is shown to the satisfaction of the trier of fact that the defamatory matter is true or that the defamer was privileged to publish it.” Under Pennsylvania law,” defamation per se can be either words imputing (1) criminal offense, (2) loathsome disease, (3) business misconduct, or (4) serious sexual misconduct.” 1

        A statement that is classified as defamatory per se shifts the burden of proof to the defendant to either prove the truth of the statement or to admit that it is false and establish that the statement is privileged. If the defendant is unable to prove either defense, the plaintiff is entitled to at least nominal damages.

        Statements that are actionable per se are false “imputations affecting another’s business, trade, profession, or office,”2 and “[l]ibelous imputation of immorality.” 3 The latter is defined as an accusation “in libelous form . . . of any sexual misconduct irrespective of whether the misconduct constitutes a criminal offense or whether it harms the other in his business, trade or profession. Thus it is actionable per se to accuse by a libelous publication either a man or woman of adultery or fornication or to accuse another of keeping a house of ill fame or frequenting such a house. Any abnormal sex conduct or tendency comes within the rule stated in this Section whether or not the same constitutes a crime. So too, it is libelous to charge another with insulting proposals to members of the opposite sex, or any kind of lascivious or grossly immodest conduct.” 4

        If a statement is not defamatory per se, a plaintiff must show “special harm” to recover. 5

    2. Elements

        (1) The defamatory character of the communication;

        (2) Its publication by the defendant;

        (3) Its application to the plaintiff;

        (4) The understanding by the recipient of its defamatory meaning;

        (5) The understanding by the recipient of it as intended to be applied to the plaintiff;

        (6) Special harm resulting to the plaintiff from its publication; and

        (7) Abuse of a conditionally privileged occasion.6

      A communication is defamatory if it:

        (1) Tends to harm the reputation of another as to lower him in the estimation of the community; or

        (2) Tends to deter third persons from associating or dealing with him.7

    3. Cases

      1. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 769 (E.D. Pa. 2016)

        • Procedural Posture: Defendant moved to dismiss Plaintiff’s claims for defamation and invasion of privacy.
        • Law: defamation, invasion of privacy (false light)
        • Facts: Plaintiff brought suit against a former lover who had included descriptions of their relationship in a biography, and the biographer’s publishing company. Plaintiff claimed portions of the biography that included descriptions of the plaintiff as a “star seducer,” describing their relationship as “100 percent sexual,” and as a person who exchanged sexual activity for money, were defamatory, defamatory per se, and painted plaintiff in a false light.
        • Outcome: Considering the allegations in a light most favorable to the plaintiff, the court found the statements referring to plaintiff as a person that “picked up” men, referring to her as a “star seducer,” and inferences that plaintiff was a “venal harlot” were reasonably capable of a defamatory meaning. The court dismissed as not reasonably defamatory content alluding to plaintiff’s interest in the defendant’s wealth, as well as the relationship being “100 sexual,” as the context of the novel surrounding those statements contained content discussing non-sexual aspects of their relationship that could not be found as “grievously fractur[ing]” plaintiff’s standing in the community. This content included plaintiff’s receipt of a stipend from defendant. The court also allowed a separate claim of defamation per se to proceed relating to plaintiff’s depiction as someone who exchanged sex for money, finding it could constitute “serious sexual misconduct” under Pennsylvania law. (For ruling on False Light, see above.)
      2. D’Errico v. DeFazio, 763 A.2d 424, 434 (Pa. Super. Ct. 2000)

        • Procedural Posture: Plaintiffs appealed from a grant of defendant’s motion for summary judgment.
        • Law: prima facie tort, defamation
        • Facts: Plaintiffs alleged defamation and prima facie tort, among claims of official oppression and assault, against defendant, a Chief Sheriff Deputy, who was engaged to accompany plaintiffs from their former place of employment upon their termination. Plaintiffs claimed the presence of the officer in escorting them caused them humiliation and fear. They claimed by using the officers, the defendant was portraying to the public that the plaintiffs were lawbreakers, and thus stated a defamatory falsehood.
        • Outcome: In addition to holidng that Pennsylvania does not recognize a claim for prima facie tort, the court found in favor of the defendant on the defamation claim. The court distinguished the case of slander from humiliating conduct that is intended to convey a defamatory message, and the communication in the case at hand. The court found that latter—escorting the plaintiffs from their former employment—did not attempt to convey a defamatory statement.
    4. Practice Pointer

      In determining the defamatory character of the language, the court “must consider the full context of the article to determine the effect the article is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” 8

    1. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 775 (E.D. Pa. 2016) (citing Synygy, Inc. v. Scott–Levin, Inc., 51 F.Supp.2d 570, 580 (E.D.Pa.1999), aff’d sub nom., Synygy, Inc. v. Scott–Levin, 229 F.3d 1139 (3d Cir. 2000)). 

    2. Restatement (First) of Torts § 569 comment (e) (1938). 

    3. Restatement (First) of Torts § 569 comment (f) (1938). 

    4. Restatement (First) of Torts § 569 comment (f) (1938). 

    5. Restatement (First) of Torts § 614 (1938). 

    6. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 766–67 (E.D. Pa. 2016). 

    7. McCabe v. Vill. Voice, Inc., 550 F. Supp. 525, 528 (E.D. Pa. 1982) (this determination is a question of law made by the court); this standard is also defined in 42 Pa. Cons. Stat. § 8343(a), “Burden of Proof in an Action for Damages.” 

    8. Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 768 (E.D. Pa. 2016) (quoting Tucker v. Phila. Daily News, 577 Pa. 598, 848 A.2d 113, 124 (2004)). 

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  4. Conversion

    1. Introduction

    2. It is possible that a WMC plaintiff may bring an action for conversion if the video or photograph at issue is the property of the plaintiff and is appropriated, or used, by the defendant without the plaintiff’s consent. The equitable relief obtained may grant the plaintiff the right to possess and control the image, while denying defendant any continuing use.

    3. Elements

    4. The plaintiff must plead:

        (1) Defendant deprived another of their right of property in, or use or possession of, a chattel, or other interference therewith;

        (2) Without the owner’s consent;

        (3) Without lawful justification.1

    5. Cases

      1. Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d 550, 573 (W.D. Pa. 2015), appeal dismissed (Jan. 5, 2016)

        • Procedural Posture: Upon removal to federal court, defendants moved to dismiss plaintiff’s putative class action, which was based on the use of customers’ health information by third parties to illegally obtain prescription medication.
        • Law: conversion, invasion of privacy (intrusion upon seclusion), misappropriation of name
        • Facts: Plaintiff sued a group of pharmacies for their failure to identify the fraudulent use of plaintiff’s identity to obtain narcotic prescriptions from defendants’ pharmacies under plaintiff’s insurance. Plaintiff sought to represent a class of individuals whose health information was used by a third party to illicitly fill the prescriptions, and whose insurance was charged by defendant pharmacies in doing so.
        • Outcome: The court dismissed the intrusion upon seclusion claim, finding the plaintiff did not allege that the defendants improperly obtained his medical information, and thus did not improperly invade his privacy by obtaining it. The court also noted the distribution of the narcotics to unauthorized individuals would not be considered highly offensive to a reasonable person. On the misappropriation of name, the court ruled again for defendants, noting the lack of causation because the misappropriation was committed by the individual who stole plaintiff’s identity and not by the pharmacy defendants themselves. Finally, the court held that a claim for conversion of plaintiff’s identity and confidential health information could not stand, as the “property interest in medical information is an intangible right that is not customarily merged or identified with some document.”
    6. Practice Pointers

    • Pennsylvania courts do not find conversion in every case where property is deprived or destroyed. There must be a finding of appropriation—that the defendant took the property for defendant’s own use.
    • The types of property that are applicable to a conversion claim were formerly restrained to tangible property (money, certificates of stock, notes). Pennsylvania courts have expanded the claim to apply to intangible property as well, but have limited this to “the kind of intangible rights that are customarily merged in, or identified with, a particular document (for example, a deed or a stock certificate).” 2 Thus, a claim for conversion of a sexual image or video must be tied to some physical document/media, rather than the intangible right of one’s identity or reputation.
    1. Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d 550, 573 (W.D. Pa. 2015), appeal dismissed (Jan. 5, 2016). 

    2. Gabriel v. Giant Eagle, Inc., 124 F. Supp. 3d 550, 573 (W.D. Pa. 2015), appeal dismissed (Jan. 5, 2016) (citing Apparel Bus. Sys., LLC v. Tom James Co., Civ. A. No. 06–1092, 2008 WL 858754, at *18 (E.D. Pa. Mar. 28, 2008)). 

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  5. Breach of Contract/Promissory Estoppel

    1. Introduction

      A WMC victim could bring a breach of contract/promissory estoppel claim alleging the defendant with whom the plaintiff had a contract with for use of a photograph or video breached the scope of consent agreed to by the parties. Plaintiffs should be aware of releases in the contract that define the scope of distribution permitted for the materials in question. If a written contract does not control the use, a plaintiff can bring a claim for promissory estoppel, arguing the defendant has been unjustly enriched by the use of plaintiff’s image.

    2. Elements

        To prove the breach of an express contract, a plaintiff must show:

          (1) The existence of a contract, including its essential terms;

          (2) Breach of a duty imposed by the contract; and

          (3) Resulting damages.1

        To allege promissory estoppel, a plaintiff must show:

          (4) A promise;

          (5) Where the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person;

          (6) The promise does induce such action or forbearance;

          (7) Injustice can be avoided only by enforcement of the promise.2

    3. Cases

      None with applicable facts at this time.

    1. CoreStates Bank, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). 

    2. Kreutzer v. Monterey Cty. Herald Co, 560 Pa. 600, 606, 747 A.2d 358, 361 (2000) (citing Restatement (Second) of Contracts § 90). 

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  6. Intentional Infliction of Emotional Distress

    1. Introduction

      Pennsylvania courts apply Restatement (Second) of Torts § 46 to claims for intentional infliction of emotional distress (“IIED”). Pennsylvania courts strictly apply the necessary elements of an IIED claim, for instance requiring the outrageous conduct be so “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society.”1

    2. Elements

      1. (1) Extreme and outrageous conduct;

        (2) Done intentionally or recklessly;

        (3) That causes emotional distress to another;

        (4) That stress is severe.

    3. Cases

      1. Emekekwue v. Offor, No. 1:11-CV-01747, 2012 WL 1715066, at *6 (M.D. Pa. May 15, 2012)

        • Procedural posture: Defendant moved to dismiss Plaintiff’s claims based on statements made by defendants suggesting that Plaintiff was responsible for his wife’s death.
        • Law: Negligent Infliction of Emotional Distress (NIED), IIED, libel
        • Facts: Plaintiff brought suit against Defendants, members of the Obosi Community Association of New York, Inc. (“OCA”) stemming from comments circulated among OCA members on an email chain regarding the Plaintiff’s application for death benefits from his ex-wife’s passing. The emails from OCA members, and other members of the public, argued against his receipt of death benefits and stated, “In conclusion, let’s call a spade a spade. [Plaintiff] took away Vanessa’s medical insurance which would have enabled her to continue her medical treatment at Johns Hopkins University where they were familiar with her cancer. She had no choice but to go to the State hospital in Pennsylvania. He was very proud of this and had no problems informing all and sundry how she would soon die. It’s pathetic that he wants to gain financially from her death. Please stop begging OCA and ODA to pay you for your ex-wife’s death. ENOUGH ALREADY.” Plaintiff brought suit, alleging the statements falsely imputed his ex-wife’s death to him, would lead a reader to believe that he attempted to extort money from the OCA, and that he bragged about facilitating her death. Plaintiff alleged that from these statements he and his family suffered such distress to cause them to seek counseling.
        • Outcome: The court, taking plaintiff’s allegations as true, denied defendant’s motion to dismiss plaintiff’s claim of defamation, finding the context of the emails sufficiently pled the libelous statements conferred a defamatory meaning that could harm plaintiff’s reputation and lower him in the estimation of the community. The court did find, however, that plaintiff’s claim of IIED failed as even if defendant distributed the email with intent to harm plaintiff, the plaintiff had not shown the action was so extreme in degree to be outrageous. Further, the court found the average person would not find the contents of the emails “atrocious and utterly intolerable in a civilized society.” Finally, the court dismissed the claim of NIED, noting the plaintiff suffered no physical injury or threat thereof, nor did the plaintiff have a special relationship with the OCA so that the OCA owed plaintiff a special duty of care.
      2. Okane v. Tropicana Entm’t, Inc., No. CIV.A. 12-6707, 2013 WL 56088, at *2 (E.D. Pa. Jan. 3, 2013)

        • Procedural Posture: Defendant moved to dismiss the amended complaint alleging NIED and IIED based on a report concerning the Plaintiff’s schizophrenic episode in a casino.
        • Law: NIED, IIED
        • Facts: Plaintiff, suffering from a schizophrenic episode, was recorded stealing two gaming chips from a roulette table in a casino by the casino’s internal security cameras. The casino ejected plaintiff from the premises and made an “ejection report” for its internal files. The casino, after a period of nearly 5 years, wrote to plaintiff restoring plaintiff’s gaming privileges and included a notification of the existence of the ejection report. Plaintiff claimed upon the receipt of the letter plaintiff suffered severe emotional distress, and the refusal of the casino to remove the record has caused plaintiff ongoing emotional distress.
        • Outcome: The court dismissed the NIED claim, finding no evidence of a “preexisting relationship[] involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.” The court noted, “[i]t is simply not foreseeable that a reasonable person would experience severe emotional damage from the maintenance of an internal security record of an event that, in fact, occurred” and the duty of care owed plaintiff by the casino did not provide the necessary relationship for a NIED claim. The court further found an absence of the “outrageous conduct” necessary for an IIED claim, particularly as the incident occurred and was truthful.
    4. Practice Pointers

      The standard necessary for an IIED claim is high—particularly for pleading that the conduct at issue is “outrageous.” Conduct deemed to meet this heightened threshold in the past includes a physician’s release of false information regarding a professional athlete’s diagnosis of a fatal disease, and the fabrication of records to implicate a plaintiff in a homicide.2

    1. Emekekwue v. Offor, No. 1:11-CV-01747, 2012 WL 1715066, at *6 (M.D. Pa. May 15, 2012) (quoting Hoy v. Angelone, 554 Pa. 134 (Pa.1998)). 

    2. Banyas v. Lower Bucks Hosp., 293 Pa.Super. 122, 437 A.2d 1236, 1237–38 (Pa. Super. Ct. 1981) (concerning the negligent preparation of medical records implicating plaintiff in a homicide); Chuy v. Phila. Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979) (concerning false release of an athlete’s health). 

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  7. Negligent Infliction of Emotional Distress

    1. Introduction

      The victim of a nonconsensual online publication of intimate photographs or videos may sue under the tort of negligent infliction of emotional distress (“NIED”). The claim is applicable where a defendant’s negligent publication of the material caused severe emotional distress to a plaintiff.

      Pennsylvania’s Supreme Court has adopted four theories of NIED recovery: where (1) defendants whose actions were negligent had “a contractual or fiduciary duty toward the plaintiff; (2) the plaintiff was subjected to a physical impact; (3) the plaintiff was in a zone of danger, thereby reasonably experiencing a fear of impending physical injury; or (4) the plaintiff observed a tortious injury to a close relative.”1

    2. Elements

        (1) Defendant negligently causes an actual or threatened physical impact or injury o the plaintiff or a close family member;

        (2) Causing plaintiff severe emotional distress.

    3. Cases

      1. Toney v. Chester Cty. Hosp., 614 Pa. 98, 36 A.3d 83, 84 (2011)

        • Procedural Posture: Defendants filed a motion to dismiss for failure to state a claim, which was granted by the trial court. Plaintiff appealed and the case was remanded and set for trial. Defendants filed a petition for allowance of appeal on the issue of whether a NIED could rest on a fiduciary relationship, and whether plaintiff had to allege physical impact in a NIED claim.
        • Law: NIED
        • Facts: Plaintiff sued defendant doctors and hospital following their performance of an ultrasound on plaintiff and her fetus in which they reported the test results as normal. Following the test, plaintiff gave birth to a son with “several profound physical abnormalities.” As a result, plaintiff alleged defendants negligently misrepresented the test results resulting in severe emotional trauma at the birth of her child for which she was unprepared, and which manifested itself in physical symptoms thereafter.
        • Outcome: The court found plaintiff could state a claim for NIED without alleging physical harm if the claim relied on a breach of fiduciary duty or contractual relationship. The court was evenly divided on the question of whether plaintiff had stated a claim, resulting in the affirmation of the lower court’s ruling.
      2. Emekekwue v. Offor, No. 1:11-CV-01747, 2012 WL 1715066, at *6 (M.D. Pa. May 15, 2012)

        • Procedural posture: Defendant moved to dismiss Plaintiff’s claims.
        • Law: NIED, IIED, libel
        • Facts: Plaintiff brought suit against Defendants, members of the Obosi Community Association of New York, Inc. (“OCA”) stemming from comments circulated among OCA members on an email chain regarding the Plaintiff’s application for death benefits from his ex-wife’s passing. The emails from OCA members, and other members of the public, argued against his receipt of death benefits and stated, “In conclusion, let’s call a spade a spade. [Plaintiff] took away Vanessa’s medical insurance which would have enabled her to continue her medical treatment at Johns Hopkins University where they were familiar with her cancer. She had no choice but to go to the State hospital in Pennsylvania. He was very proud of this and had no problems informing all and sundry how she would soon die. It’s pathetic that he wants to gain financially from her death. Please stop begging OCA and ODA to pay you for your ex-wife’s death. ENOUGH ALREADY.” Plaintiff brought suit, alleging the statements falsely imputed his ex-wife’s death to him, would lead a reader to believe that he attempted to extort money from the OCA, and that he bragged about facilitating her death. Plaintiff alleged that from these statements he and his family suffered such distress to cause them to seek counseling.
        • Outcome: The court dismissed the claim of NIED, noting the plaintiff suffered no physical injury or threat thereof, nor did the plaintiff have a special relationship with the OCA so that the OCA owed plaintiff a special duty of care. (For defamation and IIED, see above.)
      3. Okane v. Tropicana Entm’t, Inc., No. CIV.A. 12-6707, 2013 WL 56088, at *2 (E.D. Pa. Jan. 3, 2013)

        • Procedural Posture: Defendant moved to dismiss the amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).
        • Law: NIED, IIED
        • Facts: Plaintiff, suffering from a schizophrenic episode, was recorded stealing two gaming chips from a roulette table in a casino by the casino’s internal security cameras. The casino ejected plaintiff from the premises and made an “ejection report” for its internal files. The casino, after a period of nearly 5 years, wrote to plaintiff restoring plaintiff’s gaming privileges and included a notification of the existence of the ejection report. Plaintiff claimed upon the receipt of the letter plaintiff suffered severe emotional distress, and the refusal of the casino to remove the record has caused plaintiff ongoing emotional distress.
        • Outcome: The court dismissed the NIED claim, finding no evidence of a “preexisting relationship[] involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach.” The court noted, “[i]t is simply not foreseeable that a reasonable person would experience severe emotional damage from the maintenance of an internal security record of an event that, in fact, occurred” and the duty of care owed plaintiff by the casino did not provide the necessary relationship for a NIED claim.
    4. Practice Pointers

      • Under Pennsylvania’s latest adopted version of the NIED claim, a plaintiff can sue a defendant for the emotional distress caused by the breach of the defendant’s fiduciary or contractual relationship with plaintiff. The Court limited the applicability of a special relationship NIED claim “to preexisting relationships involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach” where “the special relationships must encompass an implied duty to care for the plaintiff’s emotional well-being.”2 The Court declined to list the relationships that would qualify as such, but mentioned the doctor-patient relationship as eligible for inclusion.

      • The Supreme Court has expressly denied the requirement that a plaintiff prove physical injury in a NIED claim, requiring plaintiffs instead demonstrate “the genuineness of the alleged emotional distress, in part, by proving the element of causation.”3

    1. Okane v. Tropicana Entm’t, Inc., No. CIV.A. 12-6707, 2013 WL 56088, at *2 (E.D. Pa. Jan. 3, 2013) (citing Toney v. Chester Cnty. Hosp., 961 A.2d 192, 197–98 (Pa. Super. Ct. 2008), order aff’d by equally divided court, 36 A.3d 83 (Pa. 2011)). 

    2. Toney v. Chester Cty. Hosp., 614 Pa. 98, 117 (2011). 

    3. Toney v. Chester Cty. Hosp., 614 Pa. 98, 123–24 (2011) (noting “[u]nlike cases involving a physical impact, a plaintiff in a non-impact case faces a more difficult task of convincing a court of the legitimacy of the emotional distress and the causal nexus between the negligent action at issue and alleged distress.”). 

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  8. Prima Facie Tort

    1. Introduction

      The claim of prima facie tort is not recognized in Pennsylvania as a form of action, with neither the legislature nor the Supreme Court adopting it.1

    2. Elements

      Not applicable.

    3. Cases

      Not applicable.

    4. Practice Pointers

      As Pennsylvania does not recognize this tort, WMC plaintiffs should consider pursuing alternative theories of liability.

    1. D’Errico v. DeFazio, 763 A.2d 424, 434 (Pa. Super. Ct. 2000). 

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  9. Conspiracy

    1. Introduction

      If a defendant publishes or takes a sexually intimate photograph or video of a plaintiff in concert with multiple other individuals, or publishes the material in concert with multiple individuals, they may be additionally liable under a civil conspiracy claim in addition to the substantive claim(s) brought against them.

    2. Elements

        (1) Two or more persons;

        (2) Combined or agreed with intent;

        (3) To do an unlawful act or to do an otherwise lawful act by unlawful means.1

    3. Cases

      None at this time.

    1. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 211 (1979). 

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