HomeMy WebLinkAbout01-3407 CivilHOLLY C. HOFFMAN-BAUER,
Plaintiff
VS.
HARRISON BAUER,
Defendant
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
01-3407 CIVIL
CIVIL ACTION - LAW
MEMORANDUM AND VERDICT
BEFORE HESS. J.
The above captioned matter was tried before the undersigned without a jury. After
reflecting on the testimony, we are prepared to resolve all questions of credibility in favor of the
plaintiff. Thus, we are satisfied that she has established the material facts having to do with
liability in this case.
In brief, the parties, then husband and wife, separated in April 1999. For a period of
more than a year after separation, the plaintiff would periodically visit the defendant at his
apartment in Carlisle. On at least fifteen different occasions, the defendant surreptitiously
videotaped acts of sexual intercourse between himself and his then wife. On two occasions,
these videotapes were accompanied by sound and recorded oral communications from the
plaintiff. The videotaping and the recording of the oral communications was done by the
defendant without the plaintiff' s knowledge or consent. The defendant's apartment was
subsequently searched by police in connection with an unrelated criminal matter. As a result of
the executed search warrant, the defendant was charged with other crimes and is currently in
prison in the state correctional system. The above mentioned tapes involving sexual activity
were viewed by police and other law enforcement authorities when the tapes were reviewed for
evidence of the defendant's marijuana growing activity.
01-3407 CIVIL
This civil action has been brought claiming damages for the intentional infliction of
emotional distress, invasion of privacy, and violation of the Wiretap Act. We do not believe that
the cause of action for intentional infliction of emotional distress has been made out as we do not
believe that the defendant intended that the tapes be discovered. We do believe, however, that
the plaintiff has made out a case involving the violation of the Pennsylvania Wiretap Act and
also of invasion of privacy.
The elements of the Wiretap Act, as well as the entitlements to recovery, are set out in 18
Pa.C.S.A. Section 5725 which provides in relevant part:
(a) Any person whose wire, electronic or oral
communication is intercepted, disclosed or used in
violation of this chapter shall have a civil cause of
action against any person who intercepts, discloses
or uses or procures any other person to intercept,
disclose or use, such communication; and shall be
entitled to recover from any such person:
(1) Actual damages, but not less than
liquidated damages computed at the rate of $100 a
day for each day of violation, or $1,000, whichever
is higher.
(2) Punitive damages.
(3) A reasonable attorney's fee and other
litigation costs reasonably incurred.
18 Pa.C.S.A. § 5725.
The Wiretap Act defines "oral communication" as "[a]ny oral communication uttered by
a person possessing an expectation that such communication is not subject to interception under
circumstances justifying such expectation..." 18 Pa.C.S.A. § 5702. The Wiretap Act defines
"intercept" as "[a]ural or other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or other device..." Id.
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In order for plaintiff to establish a prima facia case under the Wiretap Act, for
interception of an oral communication, she must establish: (1) that she engaged in a
communication; (2) that she possessed an expectation that the communication would not be
intercepted; (3) that her expectation was justifiable under the circumstances; and (4) that the
Defendant attempted to, or successfully intercepted the communication, or encouraged another to
do so. See Agnew v. Dupler, 553 Pa. 33,717 A.2d 519 (1998). In light of the audible evidence
found on two of the episodes of sexual encounters between plaintiff and defendant, it appears
that a prima facia case has been established.
The court in Agnew set forth the standards in determining what constitutes an oral
communication under the Wiretap Act:
[T]he proper inquiries are whether the speaker had
a specific expectation that the contents of the
discussion would not be intercepted, and whether
the expectation was justifiable under the existing
circumstances. In determining whether the
expectation of non-interception was justified under
the circumstances of a particular case, it is
necessary for a reviewing court to examine the
expectation in accordance with the principles
surrounding the right to privacy, for one cannot
have an expectation of non-interception absent a
finding of reasonable expectation of privacy. To
determine the existence of an expectation of
privacy in one's activities, a reviewing court must
first examine whether the person exhibited an
expectation of privacy; and second, whether that
expectation is one that society is prepared to
recognize as reasonable... Since the standard for
such expectation of privacy is one that society is
prepared to recognize as reasonable, the standard is
necessarily an objective standard...
717 A.2d at 523. Assuming once again that plaintiff was unaware of the recordings, it is certain
that she exhibited an expectation that any conversation she had during her sexual encounters with
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the defendant would remain in private. It is equally clear that society is prepared to recognize
that communications during sexual encounters contain a reasonable expectation of privacy.
Although this case appears to be one of first impression in the Commonwealth,
Audenreid v. Circuit City Stores, Inc., 97 F. Supp.2d 660 (E.D.Pa. 2000) gives some guidance
through inference. In Audenreid, the court determined that the employer' s use of a video
surveillance system in the employee's office did not violate the Pennsylvania Wiretap Act, based
solely on the fact that the recording device did not record sound. Id at 663. It appears that if
there had been audio recordings, then the Wiretap Act would have applied in that case.
Therefore, in the present case, the fact that the sound recordings coincide with the visual
recordings of the sexual acts, does not disqualify plaintiff from relief under the Wiretap Act. In
fact, conversely, since the plaintiff has met the substantive requirements of the Wiretap Act, she
is entitled to the relief set forth in 18 Pa.C.S.A. § 5725.
In this case, the plaintiff eventually suffered psychological damage. She underwent a
period of inpatient treatment and has suffered a diminution of earnings by virtue of her more
fragile mental state. She has, however, proffered no psychiatric, psychological, or other medical
testimony linking the actions of the defendant to her mental health problems. While no doubt
aggravated by the revelation of the videotapes, her difficulties seem to stem more from being
overwhelmed with difficulties with her children which we will not here discuss. It is simply not
possible to quantify the "actual" damages in the Wiretap action. Accordingly, we are left with
actual damages in the amount of $1,000. The Act also permits an award of a reasonable
attorney's fee as well as punitive damages.
It has been accepted in Pennsylvania that a cause of action for invasion of privacy is
actually composed of four distinct torts: (1) unreasonable intrusion upon the seclusion of
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another; (2) appropriation of the other's name or likeness; (3) unreasonable publicity given to the
other's private life; and (4) publicity that unreasonably places the other in a false light before the
public. Curran v. Children's Serv. Ctr. of Wyoming County, Inc., 396 Pa. Super. 29, 578 A.2d 8
(1990), quoting Restatement (Second) of Torts § 652 A (1977). Plaintiff in the present case
alleges to have a cause of action against defendant for "unreasonable intrusion upon the
seclusion of another," and "unreasonable publicity given to the other's private life."
Pennsylvania courts have accepted the Restatement as the appropriate standard for
governing a state civil law action for invasion of privacy. "We believe that the Restatement most
ably defines the elements of invasion of privacy as that tort has developed in Pennsylvania."
Harris v. Easton Publ'g Co., 335 Pa. Super. 141,483 A.2d 1377 (1984). The Restatement
defines when a violation of"intrusion upon seclusion" has occurred. "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." Restatement (Second) of Torts § 652B (1977).
According to the court in Harris, "lain action pursuant to this section does not depend upon any
publicity given to the person whose interest is invaded or to his affairs." Harris at 154, 483 A.2d
at 1383. The court further noted that a "defendant is subject to liability under 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." Id. at 153-54, 483 A.2d at 1383.
In his Post-Trial Brief, defendant argues that there can be no intrusion because plaintiff
voluntarily engaged in consensual sex with the defendant. This argument is ultimately without
merit in regards to the cause of action for "intrusion upon seclusion." In Clayton v. Richards, 47
S.W.3d 149 (Tex. App. 2001), the court followed the Restatement in determining whether a wife
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had violated the "intrusion upon seclusion" tort, when she installed a hidden video cameras in the
couple's bedroom. The court noted:
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.
Clayton at 153.
The court in Clayton went on to discuss the issue of videotaping private subject matter of
a spouse in a mutually shared bedroom:
When a person goes into the privacy of the
bedroom, he or she has a right to the expectation of
privacy in his or her seclusion. A video recording
surreptitiously made in that place of privacy at a
time when the individual believes that he or she is
in a state of complete privacy could be highly
offensive to the ordinary reasonable person. The
video recording of a person without consent in the
privacy of his or her bedroom even when done by
the other spouse could be found to violate his or
her rights of privacy... It is not generally the role
of the courts to supervise privacy between spouses
in a mutually shared bedroom. However, the
videotaping of a person without consent or
awareness when there is an expectation of privacy
goes beyond the rights of the spouse because it
may record private matters, which could later be
exposed to the public eye. The fact that no later
exposure occurs does not negate that potential and
permit willful intrusion by such technological
means into one's personal life in one's bedroom.
Id m 155-56.
It appears from the facts of the present case that defendant videotaped plaintiff and
himself engaging in sexual relations without plaintiff' s knowledge or consent. The intrusion was
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certainly intentional, and the information was private. Furthermore, contrary to defendant's
position, the discovery that private sexual encounters had been videotaped and watched without
the partner's consent would be highly offensive to a reasonable person.
Unfortunately, the plaintiff fails in her burden of demonstrating damages for emotional
distress. The testimony from her therapist fails to quantify, in any way, the emotional distress
that Dr. Hoffman has suffered at the hands of her ex-husband. In Pennsylvania, expert testimony
is required to prove emotional distress in an invasion of privacy action. Wecht, M.D.v.P.G.
Publishing Co., 725 A.2d 788 (Pa. Super. 1999). Notwithstanding the absence of medical
testimony, however, an award of nominal damages is permitted. Id This then allows the court
the award of punitive damages in the proper case. This is a proper case.
VERDICT
AND NOW, this day of February, 2003, the court finds in favor of the
plaintiff and against the defendant in and for the following amounts:
Wiretap Act Actual Damages:
Wiretap Act Counsel Fees and Costs
Invasion of Privacy Nominal Damages:
Wiretap Act and Invasion of Privacy, Punitve
Damages jointly and severally:
TOTAL:
$1,000.00
$10,000.00
$ 1.00
$60,000.00
$71,001.00
BY THE COURT,
Joseph Hitchings, Esquire
For the Plaintiff
Matthew Eshelman, Esquire
For the Defendant
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Kevin A. Hess, J.
01-3407 CIVIL
:rlm
HOLLY C. HOFFMAN-BAUER,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
vs. 01-3407 CIVIL
HARRISON BAUER,
Defendant
CIVIL ACTION - LAW
VERDICT
AND NOW, this
day of February, 2003, the court finds in favor of the
plaintiff and against the defendant in and for the following amounts:
Wiretap Act Actual Damages:
Wiretap Act Counsel Fees and Costs
Invasion of Privacy Nominal Damages:
Wiretap Act and Invasion of Privacy, Punitve
Damages jointly and severally:
$1,000.00
$10,000.00
$ 1.00
$60,000.00
TOTAL:
$71,001.00
BY THE COURT,
Kevin A. Hess, J.
Joseph Hitchings, Esquire
For the Plaintiff
Matthew Eshelman, Esquire
For the Defendant
:rlm