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AQUINO v. BULLETIN COMPANY (09/16/59)

September 16, 1959

AQUINO
v.
BULLETIN COMPANY, APPELLANT.



Appeals, Nos. 331 and 332, Oct. T., 1958, from judgment of Court of Common Pleas No. 4 of Philadelphia County, Sept. T., 1951, No. 6270, in case of Michael Aquino et al. v. The Bulletin Company. Judgment affirmed.

COUNSEL

Robert F. Irwin, Jr., with him Henry M. Irwin, and Irwin and Kevlin, for appellant.

Stephen M. Feldman, with him Joseph G. Feldman, and Feldman & Feldman, for appellees.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Woodside

[ 190 Pa. Super. Page 530]

OPINION BY WOODSIDE, J.

This appeal involves the right of privacy. Michael Aquino, his wife, Nancy, and his daughter, Theresa Allizzo, brought an action in trespass against The Bulletin Company claiming an unwarranted invasion of their right of privacy by an article published December 3, 1950 in The American Weekly, a supplement to The Sunday Bulletin, a Philadelphia newspaper. The jury found for the defendant in the case of Theresa Allizzo, and for the plaintiffs, Michael and Nancy Aquino, in the sum of $5000 each in their cases. The

[ 190 Pa. Super. Page 531]

    defendant moved for judgment n.o.v. and for a new trial. The motions having been overruled, and judgment having been entered on the verdicts, the defendant appealed to this Court.

The capacity for growth which characterizes the common law has enabled the courts to afford protection against the unwarranted invasion of the right of privacy without the interposition of the legislature, even though legal action for that right was unknown to the early common law. Hull v. Curtis Publishing Co., 182 Pa. Superior Ct. 86, 125 A.2d 644 (1956); Warren & Brandeis, 4 Harvard Law Review 193 (December 15, 1890).

The unwarranted invasion of the right of privacy is actionable in Pennsylvania: Hull v. Curtis Publishing Co., supra; Waring v. WDAS Broadcasting Station Inc., 327 Pa. 433, 194 A. 631 (1937); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Mack Appeal, 386 Pa. 251, 126 A.2d 679 (1956); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959); Leverton v. Curtis Publishing Co., 192 F.2d 974 (1951); Jenkins v. Dell Publishing Co., 251 F.2d 447 (1958); Harlow v. Buno Co. Inc., 36 Pa.D. & C. 101 (1939); Clayman v. Bernstein, 38 Pa.D. & C. 543 (1940); Lisowski v. Jaskiewicz, 76 Pa.D. & C. 79 (1951); Christie v. Greenleaf, 78 Pa.D. & C. 191 (1951).

In Pennsylvania we have only begun to draw the lines bounding the right. As the courts are pioneering in this field, it is important to examine carefully the principles and to apply them in a manner that will further and not hinder the cause of human freedom. Without well defined limitations the right of privacy might dangerously encroach upon freedom of speech and freedom of the press. Legal actions for invasion of the right of privacy must not be a vehicle for the establishment of a judicial censorship of the press. The courts

[ 190 Pa. Super. Page 532]

    are not concerned with establishing canons of good taste for the press or the public. See Leverton v. Curtis Publishing Co., supra, 77 C.J.S. Right of Privacy § 4a.

Although not clearly defined, the right of privacy has been referred to as "the right to live one's life in seclusion, without being subject to unwarranted and undesired publicity ... the right to be let alone." Hull v. Curtis Publishing Co., 182 Pa. Superior Ct. 86, 90, 125 A.2d 644 (1956); Kerby v. Hal Roach Studios, Inc., 53 Cal.App.2d 207, 127 P.2d 577, 579 (1942). It has also been defined as the right of a person to be free from unwarranted publicity or unwarranted approbation or exploitation of one's personality; the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion of one's private activities in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. Smith v. Doss, 251 Ala. 250, 37 So.2d 118, 120, 121 (1948); Banks v. Kings Features Syndicate, 30 F.Supp. 352 (1939).

One of the best, and probably the most thoroughly considered, explanation of the principle can be found in the discussion of the rule in the Restatement of the Law of Torts, Vol. 4, § 867. The rule is there stated as follows: "A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other."

In the Restatement it is said that the rule is relative to the customs of the time and place, and to the habits and occupation of the plaintiff. One who is not a recluse must expect comment upon his conduct. Likewise, if he submits himself or his work for public approval, as does a candidate for public office, a public official, an actor, an ...


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