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)).