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JOHN AND JANE DOE v. PAMELA T. DYER-GOODE (11/29/89)

filed: November 29, 1989.

JOHN AND JANE DOE, APPELLANTS,
v.
PAMELA T. DYER-GOODE, APPELLEE



Appeal from the Order docketed December 19, 1989 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 5249 March 1988.

COUNSEL

Julie Shapiro, Philadelphia, for appellants.

James L. Griffith, Philadelphia, for appellee.

Olszewski, Del Sole and Johnson, JJ.

Author: Del Sole

[ 389 Pa. Super. Page 154]

This is an appeal from an order granting Appellee's preliminary objections and dismissing Appellants' complaint with prejudice. Notwithstanding Appellants' plea to amend their complaint to claim damages, we conclude that the trial court's order must be affirmed because no viable cause of action is set forth in the Complaint.

In considering preliminary objections in the nature of a demurrer, the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought; if such is the case, the demurrer may not be sustained, but if the complaint fails to set forth a cause of action, preliminary objections in the nature of a demurrer are properly sustained. Rose v. Wissinger, 294 Pa. Super. 265, 439 A.2d 1193 (1982).

The Complaint at issue alleges that Appellants sought the services of Appellee-doctor in regard to a pre-marital blood test. Although Appellant, John Doe, did consent to have his blood withdrawn, he did not consent to an "AIDS test." Nevertheless, he was informed by the doctor that he had tested positive for AIDS. John Doe subsequently retested negative for exposure to the AIDS virus. Based upon this set of submitted facts the Appellants sought to recover by setting forth six separate causes of action.

In Count I a claim is made by John Doe for invasion of privacy. Appellants contend that John Doe's privacy was violated in two instances. The first occurred when the Appellee doctor "interfered with and violated" the plaintiff's bodily integrity by undertaking an examination of plaintiff's HIV status without plaintiff's knowledge or consent. It is also alleged that the doctor's creation and maintenance of records which contained these results constituted a further violation of the right to privacy.

"An action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4)

[ 389 Pa. Super. Page 155]

    publicity placing the person in a false light." Harris by Harris v. Easton Pub. Co., 335 Pa. Super. 141, 152, 483 A.2d 1377, 1383 (1984). As noted by the trial court, the Appellants' claims do not fall under the last two sections since it is not alleged that the test results were at any time publicized. Creating and maintaining a person's health records cannot be equated with publication. The second section which deals with those who appropriate a person's name or likeness is also inapplicable under the facts alleged. The remaining section which speaks to the unreasonable intrusion upon the seclusion of another is referred to in Section 652B of the Restatement (Second) of Torts which states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the ...


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