Tagouma v. Investigative Consultant Serv. Inc.

4 A.3d 170

2010 PA Super 147

Ahmed TAGOUMA, Appellant

v.INVESTIGATIVE CONSULTANT SERVICES, INC., and Michael S. Zeigler, Appellees.

Superior Court of Pennsylvania.

Argued June 9, 2010.

Filed Aug. 10, 2010.

David W. Knauer, Mechanicsburg, for appellant.

Kimberly A. Boyer-Cohen, Philadelphia, for appellees.

BEFORE: MUSMANNO, LAZARUS and OLSON, JJ.

OPINION BY OLSON, J.:

Appellant, Ahmed Tagouma, appeals from the order entered on May 27, 2009, granting summary judgment in favor of Appellees, Investigative Consultant Services, Inc. (“ICS”) and Michael S. Zeigler (“Zeigler”) and dismissing Appellant's cause of action for intrusion upon seclusion and abuse of process. Upon careful consideration, we affirm.

The salient facts of this case, as aptly summarized by the trial court, are as follows:

On April 8, 2004, [Appellant] fell at work while employed at Arnold Industries. He suffered an acute fracture of his right hand. [Appellant] was later diagnosed with Reflex Sympathetic Dystrophy Syndrome (RSD). [Appellant] sought workers' compensation benefits and Arnold Logistics contested his claim. While the claim was pending, the workers' compensation carrier, Sentry Insurance, retained [Appellee, ICS,] to perform surveillance on [Appellant]. [Zeigler], an investigator with ICS, was assigned to conduct the surveillance.

[Appellant], currently 53 years old, is a[ ] Moroccan immigrant and a Muslim who worshipped at the Al-Hikmeh Institute, which is housed on the first floor of [the] Islamic Center of PA, located at 4704 Carlisle Pike, Mechanicsburg. The Islamic Center of PA is a non-descript two-story building that most closely resembles an apartment building. [Appellant] describes the Al-Hikmeh portion of the building as a mosque. A large sign in front of the Center visible to passersby identifies the property as “The Islamic Center of PA-Al-Hikmeh Institute-Daily Worship, Arabic/Islamic Studies.” The Islamic Center sits to the south of Carlisle Pike (U.S. Highway Route 11), which is a commercial highway that runs generally east-west in the area in question. The record indicates that there are no public sidewalks along Carlisle Pike although all areas in front of the businesses in the vicinity are paved such that public parking is abundant.

The Islamic Center of PA is situated just to the rear of two businesses that sit, respectively, just in front of it to its left and just in front of it to its right. A driveway runs between these two businesses and leads to the Islamic Center, where public parking exists at its front, side and rear. Persons traveling by car on Carlisle Pike can see The Islamic Center from the highway though their view is limited by the businesses to its front right and left, respectively. A number of other buildings housing various businesses are also located in the area, including a three-store strip mall located immediately across the Carlisle Pike (on its north side) from The Islamic Center.

According to [ ] Zeigler, on April 7, 2005, at approximately 9:10 p.m., he parked in front of the three-store strip mall in a public lot, though at the time he parked there, all three businesses were closed. Zeigler observed [Appellant] from across Carlisle Pike as [Appellant] stood inside in the Al-Hikmeh portion [of] The Islamic Center near a window on the building's north side. Zeigler was between 79 and 80 yards away from The Islamic Center windows. [ ] Zeigler videotaped [Appellant] for 45 minutes with a Sony 8 mm video camera and used the camera's zoom feature.

Zeigler testified that at first he was unsure what the people inside The Islamic Center were doing, though after a while, he began to think “they might be praying.” He believed that since Plaintiff was in plain view, he could videotape him. He was trained to videotape subjects so long as they were “in public” or “in plain view,” even if inside a public building. The videotape was subsequently shown to a workers' compensation judge.

[Appellant] was not aware that Zeigler was conducting surveillance of him or videotaping him until a later time. He testified he was standing six to eight feet from the window through which he was recorded and that the Al-Hikmeh Institute was lit inside. He was standing up and praying in the video; his prayer consisted of standing up, kneeling and placing his head upon the floor. [Appellant] testified that “when I go in front of God, that's my own privacy, my own prayer between me and God, my sacred place, my sacred time, and nobody has the right to interfere or invade that time with God-with me and God.”

Trial Court Opinion, 5/27/2009, at 1-3 (footnotes and record citations omitted).

On April 6, 2006, Appellant filed a complaint against Appellees asserting abuse of legal process and invasion of privacy, more specifically, intrusion on seclusion. The parties filed cross motions for summary judgment. On May 27, 2009, the trial court granted Appellees' motion and dismissed Appellant's cause of action. ¹ This timely appeal followed.

On appeal, Appellant presents the following issues for our review:

1. When an individual is participating in a worship service in a sanctuary and in the act of praying, does he [have] a reasonable expectation of privacy and the right to be free from an intrusion on his seclusion by surveillance while in the act of worshipping?

2A. Because the privacy standard is a reasonable expectation of privacy the means of surveillance should [ ] be [limited] to the sense of sight and sense of hearing can encompass and not whatever the most current technological development in video camera and audio recording can provide?

2B. Is it a jury question whether [Appellant] had a reasonable expectation of privacy under the facts of this case where the mosque sat in a secluded location with visibility limited to a 33 foot wide driveway, no sidewalks, no street parking, vehicles passing the driveway between .56 seconds and 2.25 seconds, between 9:00 p.m. and 10:00 p.m. with businesses with a view of the mosque closed?

Appellant's Brief at 12.

In his first issue presented, Appellant contends that “an individual engaged in prayer during a worship service has a privacy right in the form of freedom from intrusion on their right of seclusion when they are communing with their god.” Id. at 17. Appellant argues that even in public areas, privacy may be constitutionally protected. Id. at 20. He contends that he had an actual, or subjective, expectation of privacy during worship and that society should be prepared to recognize such expectation of privacy as reasonable. Id. at 20-21.

When reviewing a grant of summary judgment, the scope and standard of review are as follows:

[A]n appellate court may reverse the entry of a summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.

Thus, our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Kurowski v. Burroughs, 994 A.2d 611, 615-616 (Pa.Super.2010) (internal citation omitted).

“It is well established in Pennsylvania that a violation of the right of privacy is an actionable tort.” Harris by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 483 A.2d 1377, 1383 (1984). “Under Pennsylvania law, invasion of privacy involves four separate torts: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness for commercial purposes; (3) publicity given to another's private life; and (4) publicity that unreasonably places another in a false light before the public.” Doe v. Wyoming Valley Health Care System, Inc., 987 A.2d 758, 765 (Pa.Super.2009). In this case, Appellant asserts that invasion of privacy occurred when Appellees unreasonably intruded upon his seclusion by viewing and taping his private affairs. Our Supreme Court has not officially adopted the definition of intrusion upon seclusion as set forth in the Restatement (Second) of Torts; however, our Court has relied upon § 652B in analyzing such claims. Id. Intrusion upon seclusion has been defined as:

§ 652B. Intrusion upon Seclusion

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 intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652B; see also Harris, 483 A.2d at 1383.

Moreover, the comments to Section 652B are instructive. An action pursuant to this section “does not depend upon any publicity given to the person whose interest is invaded or to his affairs.” Id., Comment a. The invasion may be (1) “by physical intrusion into a place where the plaintiff has secluded himself;” (2) “by use of the defendant's senses to oversee or overhear the plaintiff's private affairs;” or (3) “some other form of investigation or examination into plaintiff's private concerns.” Id., Comment b. “The defendant is subject to liability under this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.” Id., Comment c. For example, there is no liability “for observing [...