Privacy in the Cubicles
On March 2, the Court of Common Pleas for Monroe County issued a decision 
dismissing, on Preliminary Objections, an employment-related privacy case for failure to state a claim. In Adamski v. Johnson, 80 D. & C. 4th 69, an employee sued her employer for invasion of privacy. In a nutshell, the employee was going to have a surgery but, when her employer asked what type, the employee refused to answer. Curiosity having been aroused, the employer allegedly "asked [employee's] fellow workers what surgery she was scheduled to receive, 'using the power of the employment relationship to force, coerce and intimidate' the[] employees to disclose [the] information." The employee further alleged that, not only did the employer learn the concealed information, he also discussed it with others. Of all the nerve, right?
Naturally, litigation ensued.
Quoting the Pennsylvania Supreme Court's 1959 decision in Bennet v. Norban, 151 A.2d 476, the court first explained "[t]he gist of privacy is the sense of seclusion, the wish to be obscure and alone, and it is a trespass to abuse these personal sensibilities." Having laid the groundwork, the court moved on to the Restatement (Second) of Torts section 652B, which "most ably defines the elements of invasion of privacy" in the Commonwealth:
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 person.
According to the Superior Court, an actionable invasion may, among other things, take the "form of investigation or examination into plaintiff's private affairs." Harris v. Easton Pub. Co., 483 A.2d 1377, 1383 (1984).
In Adamski, plaintiff undoubtedly alleged an "investigation or examination" into her private affairs. The question for the court was whether that "investigation or examination" was of the type that "would be highly offensive to a reasonable person." How did the court rule? Hint: Twenty-two years ago, the Pennsylvania Supreme Court held that "information disclosed by hospital records is not the sort which would 'cause mental suffering, shame or humiliation' to a person of ordinary sensibilities." Chicarella v. Passant, 494 A.2d 1109, 1113 (1985).
If you think the court found that plaintiff failed to state a claim, you are correct. In addition to relying on the Chicarella holding concerning medical information, the court also emphasized the fact that "[t]he information [defendant] sought was information that [plaintiff] had apparently made known to others in her workplace." The court persuasively reasoned that "[i]t is unreasonable to expect that information shared with others in the office will not become known to a wider circle." Almost anyone who has ever worked in an office can painfully attest to the truth of that statement.
In deciding the case, the court focused on the substance of the information the employer discovered. I am left to wonder, though, whether it is the proper focus. The restatement itself is not much help, nebulously asking only whether the "intrusion" is highly offensive. The Superior Court, however, appears to define actionable intrusions by reference to the means of intrusion, not by reference to the substance of what is learned as a result of the intrusion. In addition to the "investigation or examination" standard, the Superior Court also finds an instrusion into privacy actionable where the intrustion is "by physical instrusion into a place where the plaintiff has secluded himself" or "by use of the defendant's senses to oversee or overhere the plaintiff's private affairs." Taken together, the Harris standards for actionable invasion of privacy appear to be exclusively concerned with means of intrusion.
Here, the court appears to have conflated the issue of "intrusion" for purposes of the tort of invasion of privacy with the altogether different question of whether the plaintiff had any protectible privacy interest in the information her employer discovered. Although an analysis of the privacy interest at stake may make sense in this case, even if only to the extent it bears on damages, the court did not favor us with an explanation as to its relevance to the issue before it, i.e., whether plaintiff sufficiently alleged an actionable intrusion.
In this case, a strict focus on means may actually matter in terms of the result. As for the means here at issue, asking someone to share information revealed by a third person is something that everyone does almost everyday and is in no way offensive in and of itself. However, the employee here was careful to allege that the employer used "the power of the employment relationship to force, coerce and intimidate." Such investigatory means might, if proven, fall within the realm of the "highly offensive," at least so far as a jury of peers is concerned. Yet, even though the court must accept plaintiff's allegations as true in this posture, the court did not address this central allegation apart from noting the defendant's alternative request for a more definite statement concerning his conduct.
In the end, there may be an appellate issue here. To be sure, a means-based analysis would probably not yield a different result if the only basis for plaintiff's allegations of force, coercion or intimidation is the simple fact that an employer/employee relationship existed between the defendant and the co-workers who shared plaintiff's secret. However, the issue here is whether plaintiff's allegations of force, coercion and intimidation are sufficient to state a claim. Inasmuch as the court left the issue wholly unaddressed, I wouldn't be surprised to see a reversal and remand.
Parting Shot: In addressing the tort of publicity (which the court bounced with a stronger legal analysis) the court quoted from comment c to Restatement (Second) of Torts section 652D. I mention it here only because I found to be rather more poetic than your typical Restatement comment:
Complete privacy does not exist in this world except in a desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community of life of which he is a part.
True. But do hermits generally live in deserts? I've always pictured them as more woodsy/mountain-type folk.
