DeBlasio v. Pignoli

OPINION BY

Judge SIMPSON.

Robert DeBlasio and Deborah McFadden (Plaintiffs), former detainees, appeal an order of the Montgomery County Court of Common Pleas (trial court) that dismissed their complaint against the Borough of West Conshohocken and the Borough’s Police Department. Plaintiffs aver Joseph Pignoli, the Borough’s Mayor, Joseph G. Clayborne, the Borough’s Chief of Police, and Joseph Pignoli, Jr., a Borough Council Member (collectively, Defendants) invaded their privacy by negligently permitting the monitoring of the police department’s holding cells from the mayor’s home. We affirm the trial court’s dismissal of Plaintiffs’ complaint.

In November 2002, the police detained Plaintiffs in its holding cells. Video cameras monitored the cells. Plaintiffs later discovered the mayor uses the cameras to monitor detainees from his home.

Consequently, Plaintiffs filed a second amended complaint,1 averring:

9. The Plaintiffs’ [sic] acknowledge the purpose of the video surveillance with the police facility to insure [sic] the safety of those incarcerated and the duty of the police personnel to carry out such tasks in a professional manner.
13. [Defendants] violated the privacy of [Plaintiffs], in establishing, maintaining and/or neglecting to disconnect the surveillance monitors at the personal home of [the mayor].
14. In such a violation of privacy, [Plaintiffs] suffered humiliation, injuries and damages.
17. Defendants jointly conspired to install and/or maintain and/or permit the home monitoring system, abusing the official positions they held to perpetrate the invasion of those incarcerated at the facility.
*82418. At the very least, some of the Defendants were negligent in the performance of their duties in not having discovered the set up or having been made aware of it, not having reported the same.
21. [Defendants] acted in bad faith in establishing and maintaining surveillance cameras in the cells of [Plaintiffs].
22. [Defendants] conspired to disparage and humiliate [Plaintiffs] by invading their privacy at the home of [Mayor].

Reproduced Record at 14a-16a.

In response, the borough and the police department filed preliminary objections in the nature of a demurrer. They argued Plaintiffs’ second amended complaint failed to state a cause of action for any privacy tort or a claim for conspiracy. In addition, they asserted Plaintiffs’ complaint was barred by what is commonly called the Political Subdivision Tort Claims Act (Act), 42 Pa.C.S. §§ 8541-42.

Ultimately, the trial court determined Plaintiffs too generally pled an invasion of privacy claim, and even if properly pled, the theory failed because Plaintiffs did not have an expectation of privacy while in the holding cells. The trial court dismissed the conspiracy claim because Plaintiffs failed to plead the alleged unlawful act of invasion of privacy. The trial court further concluded the borough and the police department were immune from negligence liability under the Act.

On appeal to this Court,2 Plaintiffs argue the mayor’s monitoring constitutes an invasion of privacy that publicized private facts of a type highly offensive to a reasonable person. Without citation to authority, Plaintiffs argue the monitoring is offensive because it is conducted from outside the police department, specifically, the mayor’s home. Plaintiffs further aver Defendants conspired to invade their privacy.

An action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life, and (4) publicity placing the person in a false light. Marks v. Bell Tel. Co. of Pa., 460 Pa. 73, 331 A.2d 424 (1975). Plaintiffs seem to mix and match these torts, but the only theory applicable to their second amended complaint is intrusion upon seclusion.3 As explained in the Pennsylvania Standard Jury Instructions:

One who intentionally intrudes, physically or otherwise, on the solitude or *825seclusion of another person, or the person’s private affairs or concerns, is responsible to the person for the harm suffered as a result of this invasion of privacy if a similar intrusion upon the solitude or seclusion or private affairs and concerns of a reasonable person would be highly offensive to that reasonable person.
Conduct that is highly offensive to a reasonable person is conduct that a reasonable person, in similar circumstances, would find very objectionable or that a reasonable person in similar circumstances could be expected to take with serious offense.

Pa. SSJI (Civ. 13.12) (emphasis added). A defendant is liable for intrusion upon seclusion only when he intrudes into a private place, or otherwise invades a private seclusion about a plaintiffs person or affairs. Harris by Harris v. Easton Publ’g Co., 335 Pa.Super. 141, 483 A.2d 1377 (1984).

Here, Plaintiffs aver the mayor could monitor them from his home while they were detained in holding cells equipped with surveillance cameras. However, regardless of the location of the viewer, the place being viewed was not private. Stated otherwise, a cell is a place where a detainee’s privacy is lost. Hudson v. Palmer, 468 U.S. 517, 526, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell”); Johnson v. Desmond, 441 Pa.Super. 632, 658 A.2d 375 (1995) (inmate had no reasonable expectation of privacy in his prison cell entitling him to protection of Fourth Amendment); Thomas v. Holtz, 707 A.2d 569 (Pa.Cmwlth.1998) (Pellegrini, Kelley, JJ., & Narick, S.J.) (prisoner has no reasonable expectation of privacy in his prison cell entitling him to protection against unreasonable searches; imprisonment carries with it the loss of many rights as being necessary to accommodate the institutional objective of prison facilities); see Samson v. California, — U.S. -, -, 126 S.Ct. 2193, 2197, 165 L.Ed.2d 250 (2006) (prisoners have no reasonable expectation of privacy); Willis v. Artuz, 301 F.3d 65 (2d Cir.2002) (an inmate does not have a legitimate expectation of privacy in his prison cell); Booth v. King, 346 F.Supp.2d 751 (E.D.Pa.2004) (same); Commonwealth v. Rathfon, 705 A.2d 448 (Pa.Super.1997); Commonwealth v. Boyd, 397 Pa.Super. 468, 580 A.2d 393 (1990) (same); Commonwealth, Dep’t of Pub. Welfare, Fairview State Hosp. v. Kallinger, 134 Pa.Cmwlth. 415, 580 A.2d 887 (1990) (Pellegrini, J.) (same). Thus, Plaintiffs’ intentional intrusion upon “cell seclusion” claim fails, and the trial court properly dismissed the invasion of privacy claim.

We decline to follow the path suggested by the dissent, which relies on a federal district court case from Illinois, Huskey v. National Broadcasting Co., Inc., 632 F.Supp. 1282 (N.D.Ill.1986).4 Primarily, the prisoner in that case was not in his cell when he was videotaped for broadcast against his express wishes; rather, he was in another area of the prison, an “exercise cage.” Id. at 1285. Not surprisingly, therefore, the district court did not discuss any expectation of privacy that prisoner had in his cell. As a result of this critical distinction, the district court did not need to reconcile its decision with the 1984 decision of the U.S. Supreme Court in Hudson *826v. Palmer, which held there was no reasonable expectation of privacy in a prison cell. In contrast, this Court does not enjoy a similar luxury to avoid discussion of the long line of authority which started with Hudson v. Palmer.

As the numerous Hudson v. Palmer cases instruct, there are significant consequences in recognizing any privacy interest in a prison cell. Chief among these would be restrictions on the ability to enter, to search and to seize items and inmates from a cell. In this context, the Supreme Court’s admonition that “society is not prepared to recognize as legitimate any subjective expectation of privacy that a prisoner might have in his prison cell” is an important statement of policy to which the majority adheres. 468 U.S. at 526, 104 S.Ct. 3194 (emphasis added).

As to the conspiracy theory, the trial court properly determined Plaintiffs failed to state a claim for conspiracy. To state a civil action for conspiracy, a complaint must allege: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or unlawful purpose; (2) an overt act done to further the common purpose, and (3) actual legal damage. Pappert v. TAP Pharm. Prods. Inc., 868 A.2d 624 (Pa.Cmwlth.2005).

Here, Plaintiffs fail to plead a cause of action for invasion of privacy. As a result, Plaintiffs fail to state the underlying unlawful act required for a conspiracy claim. Thus, the trial court properly sustained the demurrer to this claim as well.5

Accordingly, the trial court is affirmed.

ORDER

AND NOW, this 12th day of March, 2007, the order of the Montgomery County Court of Common Pleas is AFFIRMED.

. Plaintiffs filed their original complaint with the trial court averring violation of privacy and of federal substantive due process and civil rights protections. As a result, the case was removed to federal court. Pursuant to a federal court order, Plaintiffs filed a second amended complaint. Because this complaint no longer alleged substantive due process and civil rights violations, the federal court remanded the case to the trial court.

. When considering the appropriateness of a ruling on preliminary objections, this Court must apply the same standard as the trial court. Unified Sportsmen of Pa. v. Pa. Game Comm’n, 903 A.2d 117 (Pa.Cmwlth.2006). Under this standard, the Court accepts as true all well-pled material facts set forth in the complaint along with all reasonably deducible inferences from those facts. Id. The question presented by a preliminary objection in the nature of a demurrer is whether, on the facts averred in the complaint, the law provides with certainty that no recovery is possible. Id. A preliminary objection must only be sustained to dismiss a complaint with prejudice if there does not appear to be any reasonable possibility that amendment of it would be successful. Id.

. Plaintiffs argue Defendants gave publicity to a matter concerning their private life. Publicity means that a matter is made public by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain fo become one of public knowledge. Harris by Harris v. Easton Publ'g Co., 335 Pa.Super. 141, 483 A.2d 1377 (1984). Here, Defendants allegedly maintained video cameras in holding cells. Plaintiffs only aver the mayor visually monitored the cells. Plaintiffs fail to aver Defendants communicated any information to anyone else; therefore, the publicity element is not met by the second amended complaint. We need not address the question of whether an adult loses "private life” status by arrest and detention.

. Huskey was not cited by the trial court, and it was not referenced by the parties. Indeed, it has never been followed in a reported opinion for the proposition that a prison inmate has reasonable seclusion expectations anywhere in a prison.

. We also easily dispose of Plaintiffs’ vague averments of negligence. Consistent with authority previously cited, both intrusion upon seclusion and conspiracy are intentional torts. Pa. SSJI (Civ. 13.12); Pappert v. TAP Pharm. Prods. Inc., 868 A.2d 624 (Pa.Cmwlth.2005). Negligent acts are insufficient for these torts. Moreover, Plaintiffs did not preserve in their Concise Statement of Matters Complained of on Appeal any issue relating to negligence averments. Reproduced Record at 71a-72a.

As a result of our holdings, we need not discuss the immunity issues.