In her Memorandum of Law in Support of her Response to Defendants' Motion for Summary Judgment, Ms. Faison contends that she can maintain a cause of action for common law invasion of privacy because publicity was given to her private life by disclosure of medical and mental health information in the presentence report. She argues she satisfies the "publicity" requirement because the presentence report is contained in numerous files, and was typed in a typing pool. She states "simply marking the records 'confidential' and having a statute which states the records are not open to the public is not conclusive evidence that the report does not meet the 'publicity' requirement." Plaintiff's Memorandum of Law in Support of her Response to Defendants' Motion for Summary Judgment at 9. This argument is unpersuasive.
Ms. Faison cannot maintain a cause of action for common law invasion of privacy. There has been no disclosure to the general public of the medical and mental health information contained in the presentence report, and Ms. Faison has not offered any evidence to the contrary. Indeed, state statutes safeguard against precisely such disclosure. Moreover, the fact that the presentence report was typed in a typing pool and is contained in court, probation, prison, and attorney files does not satisfy publicity requirement as defined in Harris. See also Vogel, 327 A.2d at 137 (disclosure of private information to four persons does not constitute publicity for purposes of common law invasion of privacy).
V. PLAINTIFF CANNOT MAINTAIN A CLAIM UNDER INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A. Pennsylvania Law
The Pennsylvania Supreme Court has not explicitly recognized the tort of intentional infliction of emotional distress. See Kazatsky v. King David Memorial Park, Inc., 515 Pa. 183, 527 A.2d 988 (1987). In Williams v. Guzzardi, 875 F.2d 46, 50-51 (3rd Cir. 1989), however, the Third Circuit, considering the Pennsylvania Supreme Court's decision in Kazatsky, predicted that the Pennsylvania Supreme Court will impose liability for intentional infliction of emotional distress in appropriate cases. See also Silver v. Mendel, 894 F.2d 598 (3d Cir. 1990).
Construing Kazatsky, the Third Circuit outlined the four elements of the tort: (1) the conduct must be extreme and outrageous; (2) the conduct must be intentional or reckless; (3) the conduct must cause emotional distress; and (4) the distress must be severe. Williams, 875 F.2d at 52. For conduct to be "outrageous" it must be extreme and very offensive to the moral values of society. Id.; Silver, 894 F.2d at 606.
The Third Circuit also held that under Kazatsky a claim for intentional infliction of emotional distress must be proved by expert medical testimony. "We construe Kazatsky as limiting the scope of liability by requiring competent medical evidence of causation and severity. It does not alter a plaintiff's burden to prove that the conduct was both intentional and outrageous." Id ; see also Kazatsky, 527 A.2d at 989 ("existence of the alleged emotional distress must be supported by competent medical evidence").
In the instant case, Ms. Faison cannot maintain a cause of action for intentional infliction of emotional distress. Defendants conduct -- disclosing private medical information in the presentence report -- was not extreme or outrageous. To the contrary, it was entirely appropriate. The information assists the sentencing court, the prison system and the child welfare system in providing appropriate care to Ms. Faison and her family. Moreover, the information contained in the presentence report is not disclosed to the general public. In addition, Ms. Faison has not offered any expert medical testimony in support of her claim that the inclusion of confidential medical and mental health information in the presentence report caused severe emotional distress. Nor has an expert witness been identified to testify on this issue.
B. Federal Law
The Supreme Court has established that mental or emotional distress constitutes a compensable injury under 42 U.S.C. § 1983, but that damages may be awarded only upon a showing that such injury actually occurred. Carey v. Piphus, 435 U.S. 247, 263-64, 98 S. Ct. 1042, 1052, 55 L. Ed. 2d 252 (1978). The level of damages awarded under section 1983 is "ordinarily determined according to principles derived from the common law of torts." Memphis Community School Dist. v. Stachura, 477 U.S. 299, 306, 106 S. Ct. 2537, 2542, 91 L. Ed. 2d 249 (1986). Thus, Ms. Faison cannot maintain a cause of action for intentional infliction of emotional distress under section 1983 for the same reasons, discussed above, that she can not maintain such an action under state law.
Summary judgment will be granted in favor of Defendants, Edward T. Parker, Peter Solomon, Miklos Pogonyi, the City of Philadelphia, and the Philadelphia Department of Human Services. Ms. Faison's federal and state protected right to privacy was not violated. Ms. Faison cannot maintain a cause of action for intentional infliction of emotional distress under either Pennsylvania law or 42 U.S.C. § 1983.
An appropriate Order follows.
AND NOW, to wit, this 15th day of January, 1993, upon consideration of the Motion of defendants, Edward T. Parker, Peter Solomon, Miklos Pogonyi, and the City of Philadelphia and the Department of Human Services, for Summary Judgment (Doc. No. 24), Plaintiff's Response to Defendants' Motion (Doc. No. 28), and Defendants' Reply to Plaintiff's Response (Doc. No. 29) IT IS ORDERED that defendants Motion for Summary Judgement is GRANTED and JUDGMENT IS ENTERED in favor of defendants, Edward T. Parker, Peter Solomon, Miklos Pogonyi, the City of Philadelphia, and the Philadelphia Department of Human Services, and against Plaintiff, Marie M. Faison.
BY THE COURT:
JAN E. DUBOIS, J.