No. 979 April Term, 1979, Appeal from the Orders of the Court of Common Pleas of Allegheny County, Civil Action-Law, No. GD79-5149.
K. Lawrence Kemp, New Kensington, for appellants.
William J. O'Brien and Thomas Gibson, Philadelphia, for Bell, appellee.
Mark T. Wade, Washington, for Porto, appellee.
Spaeth, Wickersham and Lipez, JJ.
[ 292 Pa. Super. Page 26]
This is an appeal by Robert and Lois Nagy, plaintiffs below, of the order of the trial court sustaining defendants', The Bell Telephone Company of Pennsylvania and Gerald Porto, preliminary objections to all three counts of the plaintiffs' complaint. We affirm in part and reverse in part.
The facts of the case are adequately stated by the court below:
The individual defendant, Gerald Porto, is the estranged husband of Judy Porto, the wife-plaintiff's sister. As a result of beatings administered by Gerald Porto throughout fourteen years of stormy marriage, Judy Porto was compelled to leave her marital domicile and keep her whereabouts secret for her own safety and protection. The wife-plaintiff kept in contact with Judy Porto by way of long distance telephone calls which she completed through defendant Bell Telephone's communication system. Some time in October of 1978, the wife-plaintiff contacted an employee of Bell at its McKeesport office and requested that the records of the telephone calls made from the plaintiff's telephone, including telephone numbers, not be disclosed to third parties. She received assurance from that employee, whose identity is unknown, that her request would be honored. With this assurance, the wife-plaintiff proceeded to call her sister several times during the months of October and November of 1978. Subsequently, the individual defendant, Gerald Porto, obtained the telephone numbers of calls made from the plaintiff's residence, including the telephone number of his wife, Judy Porto, the wife-plaintiff's sister. Again, this was obtained from an unknown employee of defendant Bell Telephone Company. The plaintiffs next filed this action.
[ 292 Pa. Super. Page 27]
The Nagys argue that the first count of their complaint states the causes of action against the Bell Telephone Company of Pennsylvania (Bell) for invasion of privacy and for emotional distress resulting therefrom. To sustain a demurrer, we must find that 1) a cause of action not properly made out in the complaint; and 2) the plaintiff would be unable to state a proper claim even on a different statement of facts.
Our decision of this issue is controlled by Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974). In Vogel, our Supreme Court approved the Second Restatement's ...