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REBEKAH HARRIS v. EASTON PUBLISHING CO. (11/09/84)

filed: November 9, 1984.

REBEKAH HARRIS, A MINOR, BY BRIGITTE HARRIS, HER GUARDIAN, AND BRIGITTE HARRIS, JAMES HARRIS AND JANIS HARRIS, APPELLANTS,
v.
EASTON PUBLISHING CO., COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF PUBLIC WELFARE, AND NORTHAMPTON COUNTY BOARD OF PUBLIC ASSISTANCE



No. 2136 Philadelphia, 1982, Appeal from the Order entered June 30, 1982, Court of Common Pleas, Northampton County, Civil No. 1980-C-4152.

COUNSEL

Margaret H. Poswistilo, Easton, for appellants.

April L. Cordts, Easton, for appellees.

Rowley, Montemuro and Johnson, JJ.

Author: Johnson

[ 335 Pa. Super. Page 148]

We are called upon to review the summary dismissal of an action for invasion of privacy where a newspaper of general circulation published facts concerning the private lives of an applicant for public welfare benefits and her family on information supplied by the Department of Public Welfare. The appeal is from an order granting summary

[ 335 Pa. Super. Page 149]

    judgment in favor of Easton Publishing Company (Company). Since we find that the pleadings raise genuine issues of material fact concerning publicity given to private life, we reverse and remand.

Appellants filed a complaint in trespass on September 10, 1980 alleging that a column appearing in the Company's newspaper on April 25, 1979 had revealed personal facts of appellants. The complaint alleged that publication of the column constituted an invasion of privacy as (1) an unreasonable intrusion upon appellants' seclusion and (2) publicity given to appellants' private lives. The complaint also alleged a violation of the Public Welfare Code, 62 P.S. ยง 101 et seq.

The record establishes that appellant Brigitte Harris was born in Germany, married a U.S. enlisted man and gave birth to three children in Germany. She subsequently moved to the United States and gave birth to a fourth child. In January of 1979, Brigitte filled out an application for medical assistance and food stamps on behalf of herself, her granddaughter Rebekah, and pregnant daughter Phyllis all of whom occupied the same household, along with Brigitte's son James and daughter Janis. Brigitte refused to sign the application and subsequently withdrew it because (1) she refused to permit the caseworker to photocopy certain documents which bore a written prohibition against photocopying and (2) there was some question regarding household size and the income of her son, James.

On February 21, 1979, Brigitte Harris telephoned the Department of Public Welfare (Department) and discussed with an employee her difficulties in applying for benefits. The Department subsequently altered some of the facts in order to disguise appellants' identities and fashioned a fictionalized account of the inquiry. This account was sent to various newspapers in northeast Pennsylvania for inclusion as part of a public service column regularly provided by the Department. The purpose of the column was to create more public understanding of the Department's operations, policies and available services.

[ 335 Pa. Super. Page 150]

The column, consisting of a question and response, stated:

Welfare Corner

Q. I recently applied for medical assistance and food stamps for myself, grandson, and my youngest daughter who is 17 and lives with me. She is pregnant and needs the help of a doctor. The welfare office told me I would have to let them make a copy of my naturalization papers. I was born in Germany, married a G.I. and had four children in Germany by him. Then we came to this country and my youngest child, now 17, was born in New Jersey. The trouble is that the welfare office didn't want to give me medical assistance because I refused to let them copy my naturalization papers. It already says on this paper that it must not be copied. My daughter has a birth certificate in this country which I showed them and they wanted to copy that also.

I called the Immigration Service in Washington and they referred me to you. Can you help?

A. The county assistance office supervisor reported to this office that you decided not to sign the application and, therefore, it is being held pending your decision. The worker stated that she could waive the copying of the naturalization papers even though it is customary to establish proof of age. An examination of your daughter's birth certificate was sufficient to establish her age as a minor child, although we now make copies of these to maintain proper documentation. We were also informed that you had a 19-year old son who works intermittently for a company which has irregular work. Since he and a young grandson of yours also live in your home, your total family income (all those presently living in the home) will have to be established to determine your eligibility. From what you have stated, you are probably eligible for food stamps as well as medical assistance, but complete information must be given.

We were also informed that a letter had recently been sent to you urging you to come back so that your eligibility

[ 335 Pa. Super. Page 151]

    and that of your daughter, in particular, can be determined. We hope you will do this for your daughter and her unborn child's sake. At the time your completion of the application and the determination of eligibility is made, you should also ask your worker about sources of other kinds of help for your daughter. Please be sure that we want you to have the assistance your family needs if you are entitled to it.

The above column, as sent to the Company by the Department prior to its appearance in the newspaper, set forth the initials and address "J.S., Reading" following the sentence "Can you help?" The initials and address were not included by the Company when it published the column. A disclaimer was also regularly included by the Department with the proposed columns which stated, inter alia, that the information in the column is disguised and that attempts should not be made to identify specific persons from the information provided. This disclaimer was also not published with the column.

The complaint alleged that from the information which appeared in the column, numerous persons had indicated to appellants and to others that from reading the column, they had immediately recognized appellants as the purportedly fictional characters in the account. In response to interrogatories, appellants listed seventeen persons who had so identified them from reading the column.

Appellees filed answers and new matter, to which appellants replied. The complaint was subsequently dismissed with prejudice as to appellees Commonwealth of Pennsylvania, Department of Public Welfare and the Northampton County Board of Public Assistance, based on governmental immunity. The Company's motion for summary judgment was subsequently granted and the instant appeal taken.

Appellants raise two issues on appeal: (1) whether summary judgment was improper because of the existence of a genuine issue of material fact and (2) whether the Company was properly entitled to summary judgment as a matter of law.

[ 335 Pa. Super. Page 152]

Summary judgment is made available by Pa.R.C.P. 1035 when the pleadings, depositions, answers to interrogatories, admissions on file and supporting affidavits considered together reveal no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Husak v. Berkel, Inc., 234 Pa. Super. 452, 341 A.2d 174 (1975). To determine the absence of a genuine issue of material fact, we must view the evidence in the light most favorable to the non-moving party and any doubts must be resolved against the entry of judgment. Id. In so doing, we accept as true all well-pleaded facts in appellant's pleadings and give appellant the benefit of all reasonable inferences to be drawn therefrom. Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment is appropriate only in those cases which are clear and free from doubt. Id.

Appellants' first two bases for relief concern the alleged invasion of their right of privacy. It is well established in Pennsylvania that a violation of the right of privacy is an actionable tort. See Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133 (1974); Bennett v. Norban, 396 Pa. 94, 151 A.2d 476 (1959). "The 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." Bennett v. Norban, 396 Pa. at 99, 151 A.2d at 479. The right of privacy is a qualified right to be let alone; but ...


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