(concurring).
I join in parts I and II of the Court’s Opinion and in so much of part III as concerns damages for violation of the Pennsylvania anti-wiretap statute. I do not join in that portion of part III which pertains to the tort of invasion of privacy because the appellant has not pleaded a cause of action for tortious invasion of privacy. Thus, there is no basis for the trial court’s having considered the elements of that tort or for our doing so now.
The complaint is one in equity brought, allegedly, on behalf of “plaintiff and all others whose constitutional rights have been, and are being, violated by the conspiracy between the Bell Telephone Company of Pennsylvania and the City of Sharon” (Complaint, paragraphs 13 and 14, R. 20a). The wrong asserted to have been done by the defendants was the “bugging” or tapping of the tele*89phone conversation referred to in the Opinion of the Court “in violation of his [plaintiff’s] client’s constitutional rights and the statutes of the Commonwealth of Pennsylvania and the laws of the United States of America” (Complaint, paragraph 7, R. 18a). Other paragraphs of the Complaint alleged that the tapping generally of conversations at the police station was “in violation of the laws of the Commonwealth of Pennsylvania and the laws of the United States” (Complaint, paragraphs 8 and 9, R. 18a, 19a).
As the appellant has himself told the Court, he sued “as an individual seeking relief from the continued violation of his constitutional rights and the constitutional rights of the public, and also seeking injunctive relief against the defendants from their continued violation of a statute enacted for the protection of the plaintiff and all other members of the public” (Brief of appellant, pp. 17, 18).
The entire thrust of the Complaint is violation of the Pennsylvania Anti-Wire Tapping Statute and the federal constitution, from which injunctive relief is sought. While damages are also prayed for, they are not demanded for the tort of invasion of privacy. Had it been intended to assert a cause of action for the commission of that wrong, which I quite agree is recognized in Pennsylvania, there should have been a separate count setting it forth and containing a demand for relief. See Pa.R.C.P. 1020, 1041, 1501. The Complaint, as filed, does not purport to assert more than a single cause of action. I thus view the Court’s discussion of invasion of privacy as surplusage, but not detracting from the result, and I thus join in the decision of the Court.
Since, however, the Court has seen fit to consider the case as one in which a claim for the invasion of privacy is presented, I feel compelled to note my disagreement with its artificial restriction of that tort so as to exclude intrusions by means of an artificial, as distinguished *90from a human, ear. While some torts, including some forms of invasion of privacy, require publication as an element of the offense, there is no such requirement for an action for intrusion upon another’s seclusion. See W. Prosser, The Law of Torts § 117 at 814 (4th ed. 1971); Dietmann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971); Fowler v. Southern Bell Telephone Co.; 343 F.2d 150 (5th Cir. 1965); Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993 (1973).*
Thus, it has generally been held that an invasion of privacy occurs when a listening device is hidden in a room or attached to a. telephone even though the person monitoring the “bug” or “wiretap” did not convey the information he overheard to any other person. Fowler v. Southern Bell Telephone Co., supra; McDaniel v. Coca Cola Bottling Co., 60 Ga.App. 92, 2 S.E.2d 810 (1939); Rhodes v. Graham, 238 Ky. 225, 37 S.W.2d 46 (1931). Further, and contrary to what the majority opinion suggests, the Supreme Court of New Hampshire, in Hamberger v. Eastman, 106 N.H. 107, 206 A.2d 239 (1964), held specifically that the plaintiffs, a husband and wife, had stated a cause of action by averring that the defendant had installed a concealed listening device in their bedroom even though they failed to allege that “anyone listened or overheard any sounds or voices originating from the plaintiffs’ bedroom.” 206 A.2d at 242.
It is my opinion that the New Hampshire Supreme Court is correct in its holding, in Hamberger. The tort of intrusion is designed to protect an individual, not *91against what other human beings may know or think of him, but rather against the very act of interfering with his seclusion. One’s seclusion may be as much disrupted by the presence of an electronic ear in a setting where one would normally expect to be alone as it is by the presence of a human ear in that same place. Of course, whether any human being heard or may hear the recording will doubtless have considerable bearing upon the amount of damages suffered by the person whose privacy has been invaded, but the absence of the element of present or likely future human hearing of the recording should not be fatal to the plaintiff’s cause of action for intrusion upon seclusion.
Restatement (Second) of Torts § 652B (Tent.Draft No. 13, 1967), which is titled “Intrusion Upon Seclusion”, provides:
“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable man.”
The Reporter’s Note to The American Law Institute, which accompanies this section, states that “[t]his is very definitely a distinct form of the tort, which does not depend upon publicity.” (emphasis added)