Schlesinger v. Merrill Lynch, Pierce, Fenner & Smith, Inc.

Citation409 Mass. 514,567 N.E.2d 912
PartiesAlan J. SCHLESINGER v. MERRILL LYNCH, PIERCE, FENNER & SMITH, INC.
Decision Date11 March 1991
CourtUnited States State Supreme Judicial Court of Massachusetts

Bryan G. Killian (A. Neil Hartzell, with him), for defendant.

Alan J. Schlesinger, pro se.

Before LIACOS, C.J., and WILKINS, ABRAMS, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The plaintiff, Alan J. Schlesinger, filed a complaint in the Superior Court seeking to enjoin representatives of the defendant, Merrill Lynch, Pierce, Fenner & Smith, Inc., from calling him on the telephone at his law office to solicit the sale of securities. After discovery was completed, the defendant moved for summary judgment pursuant to Mass.R.Civ.P. 56(b), 365 Mass. 824 (1974). A judge of the Superior Court granted summary judgment in favor of the plaintiff, and entered an order permanently enjoining the defendant from making telephone calls to the plaintiff's office. The defendant has appealed, and we transferred the case to this court on our own motion. We agree with the defendant that scattered telephone calls to the plaintiff's place of business over a period of years did not constitute an actionable invasion of the plaintiff's privacy under G.L. c. 214, § 1B (1988 ed.). Because the defendant was entitled to judgment as matter of law, we reverse the order and direct the entry of judgment for the defendant.

The material facts are not in dispute. The plaintiff is an attorney whose office is in Newton. For several years the plaintiff, who has previously purchased and owned securities, received telephone calls from sales representatives of the defendant, at the rate of three to five per year. Before May, 1988, the plaintiff did not keep specific records of the names of the callers and dates of the calls. After that date, he was able to identify three specific calls occurring on May 23, 1988, June 3, 1988, and August 11, 1988. The plaintiff has no recollection of any other specific calls, but indicated generally that he received calls three to five times per year from the defendant's representatives. These were "cold calls" attempting to sell him securities, and they were made only to the plaintiff's law office. The plaintiff has a receptionist who answers all his telephone calls. The defendant's representatives sometimes did not identify themselves or their purpose in calling when speaking to the receptionist.

It is the plaintiff's policy to take all his calls, even if the caller does not identify himself or herself to the receptionist, because any caller might be a potential client who wishes to speak confidentially with the plaintiff. Consistent with this policy, the plaintiff accepted or returned all the calls from the defendant's representatives, including one which required the plaintiff to make a toll call to New York. The calls were brief, concerned only business, and did not have any effect on the plaintiff's daily routine or the conduct of his law practice.

On December 6, 1984, the plaintiff wrote to the defendant, indicating that he did not wish to buy securities and did not wish to be called by the defendant's sales representatives for any purpose. The calls continued, however, and the plaintiff wrote a second letter on November 10, 1985, demanding that the defendant's representatives stop their telephone solicitations. The calls still continued. The defendant employs over 10,000 sales representatives who solicit business by calling customers and potential customers on the telephone. The representatives often obtain their lists of persons to call from sources other than the defendant. 1 The plaintiff's recollection of the callers' identities indicates that the calls were made by different people.

On this record, the judge concluded that the plaintiff was entitled to summary judgment and entered the permanent injunction at issue. 2 The question before us is one of law-- whether on the undisputed facts, a violation of G.L. c. 214, § 1B, has been established so as to support the entry of the permanent injunction. 3

General Laws c. 214, § 1B (1988 ed.), the privacy statute, provides in full that "[a] person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages." The judge agreed with the plaintiff's theory of liability under the statute, which was essentially that the defendant's telephone calls to his office interfered with his privacy because they constituted an intrusion on his solitude and violated his interest in being left alone. We have not yet addressed this precise theory under the statute. 4

The plaintiff claims that the adjectives "unreasonable," "substantial," and "serious" are all connected by the disjunctive "or" and, therefore, set forth three alternative standards under the statute. Under the plaintiff's reading of the statute, an interference which falls under any one of the standards would constitute a violation. The plaintiff goes on to argue that the defendant's conduct was at least unreasonable and that alone justified a permanent injunction.

We reject the plaintiff's interpretation because it would lead to illogical results and would be inconsistent with the purposes and policies of the statute. See Chipman v. Massachusetts Bay Transp. Auth., 366 Mass. 253, 256, 316 N.E.2d 725 (1974); 2A Sutherland Statutory Construction § 45.12, at 54 (4th ed. 1984). The statute obviously was not intended to prohibit serious or substantial interferences which are reasonable or justified. For example, the statute would not apply to a search and seizure--clearly a serious and substantial interference with privacy--when it is performed pursuant to constitutional requirements and is otherwise reasonable. See O'Connor v. Police Comm'r of Boston, 408 Mass. 324, 330, 557 N.E.2d 1146 (1990) ("We think that it is highly unlikely that the Legislature intended to provide a right of action to a person whose privacy was substantially or seriously interfered with, but reasonably so"). Likewise, we doubt that the Legislature intended to commit scarce judicial resources to preventing an interference which could be characterized as unreasonable, but which is only trivial or insubstantial. 5 See Cort v. Bristol-Myers Co., 385 Mass. 300, 308, 431 N.E.2d 908 (1982) (the degree of intrusion is important in finding a violation of the statute).

In applying the statute, we follow the rules that "matters of punctuation are not necessarily determinative," see Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432, 446 N.E.2d 1051 (1983); Sutherland, supra § 47.15 at 157, and that a literal construction which leads to unreasonable results is to be avoided when "the language to be construed 'is fairly susceptible to a construction that would lead to a logical and sensible result.' " Lexington v. Bedford, 378 Mass. 562, 570, 393 N.E.2d 321 (1979), quoting Bell v. Treasurer of Cambridge, 310 Mass. 484, 489, 38 N.E.2d 660 (1941). We also take into account that the Legislature appears to have framed the statute in broad terms so that the courts can develop the law thereunder on a case-by-case basis, by balancing relevant factors, see Bratt v. International Business Mach. Corp., 392 Mass. 508, 520, 467 N.E.2d 126 (1984), and by considering prevailing societal values and the ability to enter orders which are practical and capable of reasonable enforcement.

In reviewing the present injunction under the statute, we choose to turn first to the question we find dispositive--whether, on the undisputed facts, the defendant's intrusion was serious or substantial. We note initially that the defendant's representatives called the plaintiff only three to five times per year--on the average, less than once every two to four months. The calls were brief in duration, had a legitimate business purpose, and did not disrupt the plaintiff's daily routine or the conduct of his law practice. Clearly, no pattern of harassment is present. See Restatement (Second) of Torts § 652B comment d (1977); Bussen v. South Cent. Bell Tel. Co., 682 F.Supp. 319, 325 (S.D.Miss.1987); Donnel v. Lara, 703 S.W.2d 257, 259-260 (Tex.Ct.App.1985). Furthermore, the calls were not calculated to annoy or disturb, but rather were polite and businesslike. 6

It is also important to recognize, as a general proposition, that "in an industrial and densely populated society, some intrusions into one's private sphere are inevitable." R. Rodman, Procedural Forms § 1051, at 491 (1990). Thus, some uninvited outside contacts are to be expected, and not every intrusion will constitute a legally cognizable violation of privacy. See Kelley v. Post Publishing Co., 327 Mass. 275, 278, 98 N.E.2d 286 (1951) ("The law does not provide a remedy for every annoyance that occurs in everyday life. Many things which are distressing or may be lacking in propriety or good taste are not actionable"). See also Nader v. General Motors Corp., 25 N.Y.2d 560, 565-566, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970). Telephone solicitations are an often unpleasant fact of modern life that must be faced by anyone who has a telephone and permits the telephone number to be listed in directories accessible to the general public. See Sofka v. Thal, 662 S.W.2d 502, 509 (Mo.1983) ("Repeated telephone calls are an accepted feature of everyday life, and maintaining telephone service evidences the expectation if not the hope of calls from time to time").

This is particularly true of professional and commercial establishments, where the expectation and likelihood of receiving telephone solicitations is greater than in private homes. By owning and listing a business telephone, and by permitting the telephone number to be public information, the plaintiff has held himself out to receive calls and has lessened his expectation of privacy. He could not...

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