1. State Claim
Pennsylvania recognizes the tort of invasion of privacy, based on section 652D of the Restatement (Second) of Torts (1977). Vogel v. W.T. Grant Co., 458 Pa. 124, 327 A.2d 133, 136 (1974). According to the Restatement definition, the essential elements of the tort are: (1) publicity given to (2) private facts (3) which would be highly offense to a reasonable person and (4) is not of legitimate concern to the public. It is undisputed that the first three factors exist in this case. What is in question is whether Gentzel's disclosure to the press - - that a federal criminal investigation of the nursing home was ongoing - - is a matter of legitimate public concern.
Plaintiffs maintain that the U.S. Attorney's investigation was not of public concern because grand jury proceedings and pre-indictment investigations are traditionally "enshrouded in secrecy." Plaintiff's Memorandum at 20. It is true that pre-indictment records are often kept secret, while post-indictment records generally are open to the public. But there is no statute prohibiting disclosure to the media. In fact, law enforcement officials do sometimes reveal details about their investigations, on occasion commenting to reporters.
Gentzel's revelation - - the truth of which is not questioned - - was, therefore, not so extraordinary as to justify this claim. Furthermore, the subject of the investigation - - a nursing home allegedly misusing public funds - - is surely of legitimate public concern. Since there is a failure to satisfy the fourth prong of the Restatement test, the state law claim of invasion of privacy must fall.
2. Federal Claim
Plaintiffs also allege that their federal constitutional rights to privacy have been violated. In response, defendants point to Paul v. Davis, 424 U.S. 693, 47 L. Ed. 2d 405, 96 S. Ct. 1155 (1976), in which the Supreme Court found that an individual's interest in his reputation does not implicate a liberty or property interest "sufficient to invoke the procedural guarantees" of the due process clause. Id. at 711. With admirable ingenuity, plaintiffs attempt to distinguish Paul by noting that underlying the decision was the Court's recognition that "Kentucky law does not extend to respondent any legal guarantee of present enjoyment of reputation which has been altered as a result of petitioners' actions." Id. at 711-12. In contrast, the Pennsylvania constitution explicitly mentions "reputation" as a significant interest: "All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness." Pa. Cons. art. 1, § 1.
Although plaintiffs are perhaps correct to observe that Pennsylvania accords reputation more protection than does Kentucky, that observation is not controlling here. To the extent that I must look to state law for the basis of plaintiffs' federal claim, I conclude, as discussed in the previous section, that basis to be lacking. Pennsylvania courts would not find a state law tort of invasion of privacy in this situation. Because they would not do so and because the Supreme Court has ruled that harm to reputation does not rise to the level of a constitutional tort, I will grant defendants' motion for judgment on the pleadings as to both privacy claims.
II. Summary Judgment
In ruling on the motion for partial summary judgment, I must resolve all inferences to be drawn from the facts in favor of plaintiffs, the non-moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). And I may grant summary judgment here only if it is established that there is no genuine issue as to any material fact and that defendants are entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980).
A. Right to Counsel
Plaintiffs allege that defendants infringed upon their sixth amendment rights by obtaining confidential information from Worrall, their former attorney. The facts regarding this claim are undisputed and are recited above. Investigators Mihalich and King as well as Worrall have submitted affidavits saying that they never exchanged information concerning Worrall's representation of Lee and Denver Nursing Home. Furthermore, Worrall has signed a detailed affidavit chronicling his activities in this matter; nowhere in that uncontradicted affidavit does it appear that Worrall ever breached his confidential relationship with plaintiffs.
In order to prevail on this claim arising under section 1983, plaintiffs must show that defendants interfered with their right to counsel and that "the interference was either wrongfully motivated or without adequate justification." Via v. Cliff, 470 F.2d 271, 275 (3d Cir. 1972). Plaintiffs need not demonstrate that their own attorney's preparedness was adversely affected - - that is, prejudice is not a prerequisite to suit - - but there must be some interference. Id. Here, plaintiffs have presented no evidence even of inadvertent interference, much less of wrongful interference. Plaintiffs merely assert that Worrall's involvement in the case on behalf of Solove was wrongful. While Worrall's representation of Solove at the preliminary hearing may have been unwise or even improper, that is not the issue before me. Even if Worrall should have been disqualified from representing Solove,
that fact would not imply that defendants have committed a constitutional wrong.
With no evidence that Worrall ever disclosed confidential information either to those investigating or to those prosecuting his former clients, there is no factual conflict to be resolved by a jury. There are no discrepancies in the accounts given by defendants and by Worrall, so that summary judgment is appropriate here. Accordingly, I will grant defendants' motion. An appropriate order follows.
[EDITOR'S NOTE: The following court-provided text does not appear at this cite in 630 F. Supp.]
Upon consideration of defendants' motion for judgment on the pleadings and of plaintiffs' response and for the reasons set forth in the accompanying memorandum, IT IS ORDERED that the motion is GRANTED IN PART AND DENIED IN PART. The claims found in count III of the complaint - - that plaintiffs' right to privacy has been violated - - will be dismissed. But the motion is denied without prejudice as to counts I and II, which involve § 1983 and malicious prosecution. Since defendant Gentzel was named only in count III, IT IS ORDERED also that judgment be entered in his favor and against plaintiffs.
Upon consideration of defendants' motion for partial summary judgment and of plaintiffs' response and for the reasons set forth in the accompanying memorandum, IT IS ORDERED that the motion is GRANTED.
AND NOW, this 12th day of February, 1986, in accordance with the order dated February 12, 1986,
IT IS ORDERED that Judgment be and the same is hereby entered in favor of defendant, ROBERT GENTZEL, and against the plaintiffs.