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VOGEL ET AL. v. W. T. GRANT COMPANY (10/16/74)


decided: October 16, 1974.


Appeals from decree of Court of Common Pleas, Civil Division, of Allegheny County, Oct. T., 1971, No. 743, in case of Charles Vogel, Jr., Ruth L. Smith, on behalf of themselves, and on behalf of all others similarly situated v. W. T. Grant Company.


Peter D. Jacobson, with him R. Stanton Wettick, Jr., Stanley Weinberg, and Neighborhood Legal Services, for appellants at No. 104.

Emil E. Narick, with him Anderson, Moreland and Bush, for appellant at No. 105.

Emil E. Narick and Anderson, Moreland & Bush, for appellee at No. 104.

Peter D. Jacobson, Stanley Weinberg, and R. Stanton Wettick, Jr., for appellees at No. 105.

Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones took no part in the consideration or decision of this case. Concurring Opinion by Mr. Justice Manderino.

Author: Roberts

[ 458 Pa. Page 125]

Since 1890 when Samuel Warren and Louis Brandeis published their famous article The Right to Privacy,*fn1 violation of this right has been steadily accepted as an actionable tort.*fn2 In Pennsylvania the development of a cause of action for invasion of privacy has been somewhat sporadic. See Bennett v. Norban, 396 Pa. 94, 98-100, 151 A.2d 476, 478-79 (1959) (alternate holding); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d

[ 458 Pa. Page 126860]

(1954); Waring v. WDAS Broadcasting, Inc., 327 Pa. 433, 456, 194 A. 631, 642 (1937) (Maxey, J., concurring); Aquino v. Bulletin Co., 190 Pa. Superior Ct. 528, 154 A.2d 422 (1959); Hull v. Curtis Publishing Co., 182 Pa. Superior Ct. 86, 125 A.2d 644 (1956). Nevertheless, the existence of the right in this Commonwealth is now firmly established, Bennett v. Norban, supra at 98-100, 151 A.2d at 478-79, Aquino v. Bulletin Co., supra, despite the fact that its perimeter is not yet clearly delineated.

Appellees Vogel and Smith, alleging that their respective rights to privacy had been breached, brought a trespass action against appellant W. T. Grant Company on behalf of themselves and all others similarly situated.*fn3 Vogel and Smith are credit customers of Grant whose accounts have not been kept up to date. They alleged that Grant, in order to coerce payment, has by contacting third parties engaged in a systematic program of harassment.

This "program," according to appellees, violated their right to privacy. The chancellor agreed and enjoined

[ 458 Pa. Page 127]

Grant from contacting any third parties except to locate a debtor who has concealed his whereabouts.*fn4 The court en banc affirmed and this appeal followed.*fn5 We cannot agree that Grant's conduct rises to the level of an invasion of privacy; we reverse.

Appellees based their claim of invasion of privacy upon Grant's practice of contacting individuals not in privity to the debtor-creditor relationship. Specifically, both Vogel and Smith alleged, and Grant admitted, that a form letter had been sent to appellees' respective employers.*fn6 Further, each appellee alleged, and the chancellor

[ 458 Pa. Page 128]

    found, that Grant had contacted various of their relatives. Smith's mother was telephoned "several" times, as were three of Vogel's relatives. There were no allegations that the calls were offensive or made at inconvenient hours. The chancellor did find, however, that the debts were discussed with these persons.

Grant's explanation for the telephone calls and letters was that it could not otherwise locate appellees. The third party contacts, Grant argued, were the only method available to learn appellees' whereabouts. The chancellor, on the basis of competent evidence, rejected this explanation.*fn7 At the time of the calls and letters, the chancellor found, Grant was aware of appellees' locations. This conduct the chancellor held "constituted an unlawful interference with the affairs of the [appellees]." We cannot agree.

Vogel and Smith allege that Grant intruded upon their privacy by publicizing facts which although true are private. Here the allegedly publicized fact is the existence of a debt owed to Grant.

Unreasonable publicity given to the existence of a debt has often been held to constitute an invasion of privacy. See, e.g., Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th Cir. 1962) (Fla. law); Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So. 2d 321 (1961); Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970); Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927); Summit Loans, Inc. v. Pecola, 265 Md. 43,

[ 458 Pa. Page 129288]

A.2d 114 (1972); Biederman's of Springfield, Inc. v. Wright, 322 S.W.2d 892 (Mo. 1959); Tollefson v. Price, 247 Ore. 398, 430 P.2d 990 (1967); Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64 (1954).*fn8

The Restatement (Second) of Torts has parsed the holdings of these and other cases and arrived at an accurate formulation of the tort of invasion of privacy.*fn9

[ 458 Pa. Page 130]

Section 652D, titled Publicity Given to Private Life, states: "One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy." Restatement (Second) of Torts § 652D (Tent. Draft No. 13, 1967).

We find this articulation, advocated by Dean Prosser and adopted by the Restatement (Second) tentative draft, to be both logical and precise. It is in accord with the common-law development of the tort of invasion of privacy in Pennsylvania. See Bennett v. Norban, supra at 98-100, 151 A.2d at 478-79; Aquino v. Bulletin Co., supra; Hull v. Curtis Publishing Co., supra. Appellees' claimed injury must be tested against this standard.

The crux of the tort developed in these cases and described in section 652D is publicity. Without it there is no actionable wrong. The classic example of unreasonable publicity given to a lawful debt is found in Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927). There an automobile repairman placed in a show window of his garage a five by eight foot notice calling attention to a customer's overdue account.*fn10 The court

[ 458 Pa. Page 131]

    concluded that despite the truth of the notice's assertion, publication of the debt could constitute an actionable invasion of plaintiff's right to privacy. And publication, the court found, had been accomplished by disclosing the existence of the debt to the public at large. Compare Household Finance Corp. v. Bridge, 252 Md. 531, 250 A.2d 878 (1969).

In Brents, as in many later debt collection cases, the court applied a three-part test in determining whether the right to privacy had been violated: publicity which is unreasonable must be given to a private fact. If there is no publicity, or if it is only what would normally be considered reasonable, or if the fact publicized is not a private one, there has been no actionable invasion of privacy.*fn11

As Dean Prosser has perceptively noted: "The disclosure . . . must be a public disclosure, and not a private one; there must be, in other words, publicity. It is an invasion of his rights to publish in a newspaper that the plaintiff does not pay his debts, or to post a notice to that effect in a window on the public street, or to cry it aloud in the highway, but not to communicate the fact to the plaintiff's employer or to any other individual, or even to a small group. . . ."*fn12

The American Law Institute has adopted a similar view.

"'Publicity' means that the matter is made public, by communicating it to the public at large, or to so

[ 458 Pa. Page 132]

    many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) of Torts § 652D, comment b (Tent. Draft No. 13, 1967).

We conclude that here there has been no such publicity.*fn13 The only persons notified of the arrearage in the Smith account were Smith's employer and mother. While four persons, three relatives and one employer, were contacted in connection with the Vogel account, even notification of this small group does not, in this case, constitute publication.*fn14 We need not now determine

[ 458 Pa. Page 133]

    how many outside parties must be notified to make a creditor's disclosures rise to the level of publication. We hold only that in these circumstances notification of two or four third parties is not sufficient to constitute publication. Without proof of publication, appellees have not established an actionable invasion of privacy.

The decree of the court of common pleas enjoining Grant (No. 105 March Term, 1973) is reversed. Vogel and Smith's appeal from the chancellor's refusal to certify the case as a class action (No. 104 March Term, 1973) is dismissed. Each party pay own costs.


Decree in No. 105 reversed; appeal in No. 104 dismissed.

Concurring Opinion by Mr. Justice Manderino:

I concur that the decree of the trial court must be reversed. I do not, however, reach the question of whether the appellees, Vogel and Smith, have a cause of action. Even if they do, the equitable remedy of injunctive relief should not be affirmed when, as under the circumstances of this case, it operates as a prior restraint on free speech. The potential chilling effect on a person's constitutional right of freedom of expression is more than sufficient reason for a court, in the exercise of its equitable authority, to always recognize that its authority is limited by the Constitution, whether or not a party calls attention to that fact.

[ 458 Pa. Page 134]

"The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department Page 134} v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L. Ed. 2d 212, 216 (1972). The injunction in this case is unconstitutional. U. S. Const., amend. I; Pa. Const. art. 1, § 7.

"[W]e look at [an] injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down." United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 581, 91 S. Ct. 1076, 1080, 28 L. Ed. 2d 339, 344 (1971). The injunction in this case is a prior restraint and there is "a 'heavy presumption' against its validity." Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S. Ct. 1575, 1578, 29 L. Ed. 2d 1, 5 (1971).

"Prior restraint upon speech suppresses the precise freedom which the First Amendment sought to protect against abridgement." Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 181, 89 S. Ct. 347, 351, 21 L. Ed. 2d 325, 331 (1968). Since the injunction here is a prior restraint upon freedom of expression, I concur in the reversal of the trial court's decree.

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