Vogel v. W. T. Grant Co.

• Decision Date: 16 October 1974
• Citation: 327 A.2d 133,458 Pa. 124
• Parties: Charles VOGEL, Jr., and Ruth L. Smith, on behalf of themselves, and on behalf of all others, similarly situated, Appellants, v. W. T. GRANT COMPANY, Appellant.
• Court: Pennsylvania Supreme Court

Page 133

327 A.2d 133

458 Pa. 124

Charles VOGEL, Jr., and Ruth L. Smith, on behalf of

themselves, and on behalf of all others, similarly

situated, Appellants, v. W. T. GRANT COMPANY, Appellant.

Supreme Court of Pennsylvania.

Oct. 16, 1974.

Peter D. Jacobson, R. Stanton Wettick, Jr., Stanley Weinberg, Neighborhood Legal Services, Pittsburgh, for Charles Vogel and others.

Emil E. Narick, Anderson, Moreland & Bush, Pittsburgh, for W. T. Grant Co.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Since 1890 when Samuel Warren and Louis Brandeis published their famous article The Right to Privacy, ¹ violation of this right has been steadily accepted as an actionable tort. ² In Pennsylvania the development of a cause of action for invasion of privacy has been somewhat sporadic. See Bennett v. Norban, 396 Pa. 94, 98--100, 151 A.2d 476, 478--479 (1959) (alternate holding); Schnabel v. Meredith, 378 Pa. 609, 107 A.2d 860 (1954); Waring v. WDAS Broadcasting, Inc., 327 Pa. 433, 456, 194 A. 631, 642 (1937) (Maxey, J., concurring); Aquino v. Bulletin Co., 190 Pa.Super. 528, 154 A.2d 422 (1959); Hull v. Curtis Publishing Co., 182 Pa.Super. 86, 125 A.2d 644 (1956). Nevertheless, the existence of the right in this Commonwealth is now firmly established, Bennett v. Norban, supra, 396 Pa. at 98--100, 151 A.2d at 478--479, Aquino v. Bulletin Co., supra, despite the fact that its perimeter is not yet clearly delineated.

Appellees Vogel and Smith, alleging that their respective rights to privacy had been breached, brought a trespass action against appellant W. T. Grant Company on behalf of themselves and all other similarly situated. ³ Vogel and Smith are credit customers of Grant whose accounts have not been kept up to date. They alleged that Grant, in order to coerce payment, has by contacting third parties engaged in a systematic program of harassment.

This 'program,' according to appellees, violated their right to privacy. The chancellor agreed and enjoined Grant from contacting any third parties except to locate a debtor who has concealed his whereabouts. ⁴ The court en banc affirmed and this appeal followed. ⁵ We cannot agree that Grant's conduct rises to the level of an invasion of privacy; we reverse.

Appellees based their claim of invasion of privacy upon Grant's practice of contacting individuals not in privity to the debtor-creditor relationship. Specifically, both Vogel and Smith alleged, and Grant admitted, that a form letter had been sent to appellees' respective employers. ⁶ Further, each appellee alleged, and the chancellor found, that Grant had contacted various of their relatives. Smith's mother was telephoned 'several' times, as were three of Vogel's relatives. There were no allegations that the calls were offensive or made at inconvenient hours. The chancellor did find, however, that the debts were discussed with these persons.

Grant's explanation for the telephone calls and letters was that it could not otherwise locate appellees. The third party contacts, Grant argued, were the only method available to learn appellees' whereabouts. The chancellor, on the basis of competent evidence, rejected this explanation. ⁷ At the time of the calls and letters, the chancellor found, Grant was aware of appellees' locations. This conduct the chancellor held 'constituted an unlawful interference with the affairs of the (appellees).' We cannot agree.

Vogel and Smith allege that Grant intruded upon their privacy by publicizing facts which although true are private. Here the allegedly publicized fact is the existence of a debt owed to Grant.

Unreasonable publicity given to the existence of a debt has often been held to constitute an invasion of privacy. See, e.g., Santiesteban v. Goodyear Tire & Rubber Co., 306 F.2d 9 (5th Cir. 1962) (Fla. law); Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321 (1961); Rugg v. McCarty, 173 Colo. 170, 476 P.2d 753 (1970); Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927); Summit Loans, Inc. v. Pecola, 265 Md. 43, 288 A.2d 114 (1972); Biederman's of Springfield, Inc., v. Wright, 322 S.W.2d 892 (Mo.1959); Tollefson v. Price, 247 Or. 398, 430 P.2d 990 (1967); Duty v. General Finance Co., 154 Tex. 16, 273 S.W.2d 64 (1954). ⁸

The Restatement (Second) of Torts has parsed the holdings of these and other cases and arrived at an accurate formulation of the tort of invasion of privacy. ⁹ Section 652D, titled Publicity Given to Private Life, states:

'One who gives publicity to matters concerning the private life of another, of a kind highly offensive to a reasonable man, is subject to liability to the other for invasion of his privacy.'

Restatment (Second) of Torts § 652D (Tent. Draft No. 13, 1967).

We find this articulation, advocated by Dean Prosser and adopted by the Restatement (Second) tentative draft, to be both logical and precise. It is in accord with the common-law development of the tort of invasion of privacy in Pennsylvania. See Bennett v. Norban, supra, at 98--100, 151 A.2d at 478--479; Aquino v. Bulletin Co., supra; Hull v. Curtis Publishing Co., supra. Appellees' claimed injury must be tested against this standard.

The crux of the tort developed in these cases and described in section 652D is publicity. Without it there is no actionable wrong. The classic example of unreasonable publicity given to a lawful debt is found in Brents v. Morgan, 221 Ky. 765, 299 S.W. 967 (1927). There an automobile repairman placed in a show window of his garage a five by eight foot notice calling attention to a customer's overdue account. ¹⁰ The court concluded that despite the truth of the notice's assertion, publication of the debt could constitute an actionable invasion of plaintiff's right to privacy. And publication, the court found, had been accomplished by disclosing the existence of the debt to the public at large. Compare Household Finance Corp. v. Bridge, 252 Md. 531, 250 A.2d 878 (1969).

In Brents, as in many later debt collection cases, the court applied a three-part test in determining whether the right to privacy had been violated: Publicity which is Unreasonable must be given to a Private fact. If there is no publicity, or if it is only what would normally be considered reasonable, or if the fact publicized is not a private one, there has been no actionable invasion of privacy. ¹¹

As Dean Prosser has perceptively noted:

'The disclosure . . . must be a public disclosure, and not a private one; there must be, in other words, publicity. It is an invasion of his rights to publish in a newspaper that the plaintiff did not pay his debts, or to post a notice to that effect in a window on the public street, or to cry it aloud in the highway, but not to communicate the fact to the plaintiff's employer, or to any other individual, or even to a small group. . . .' ¹²

The American Law Institute has adopted a similar view.

"Publicity' means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.'

Restatement (Second) of Torts § 652D, comment b (Tent. Draft No. 13, 1967).

We conclude that here there has been no such publicity. ¹³ The only persons notified of the arrearage in the Smith account were Smith's employer and mother. While four persons, three relatives and one employer, were contacted in connection with the Vogel account, even notification of this small group does not, in this case, constitute publication. ¹⁴ We need not now determine how many outside parties must be notified to make a creditor's disclosures rise to the level of publication. We hold only that in these circumstances notification of two or four third parties is not sufficient to constitute publication. Without proof of publication, appellees have not established an actionable invasion of privacy.

The decree of the court of common pleas enjoining Grant (No. 105 March Term, 1973) is reversed. Vogel and Smith's appeal from the chancellor's refusal to certify the case as a class action (No. 104 March Term, 1973) is dismissed. Each party pay own costs.

JONES, C.J., took no part in the consideration or decision of this case.

MANDERINO, J., filed a concurring opinion.

MANDERINO, Justice (concurring).

I concur that the decree of the trial court must be reversed. I do not, however, reach the question of whether the appellees, Vogel and Smith, have a cause of action. Even if they do, the Equitable remedy of injunctive relief should not be affirmed when, as under the circumstances of this case, it operates as a prior restraint on free speech. The potential chilling effect on a person's constitutional right of freedom of expression is more than sufficient reason for a court, in the exercise of its equitable authority, to always recognize that its authority is limited by the Constitution, whether or not a party calls attention to that fact.

'(T)he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.' Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212, 216 (1972). The injunction in this case is unconstitutional. U.S.Const. Amend. I, Pa. Const. art. 1, § 7, P.S.

'(W)e look at (an) injunction as we look at a statute, and if upon its face it abridges rights guaranteed by the First Amendment, it should be struck down.' United Transportation Union v. State Bar of Michigan, 401 U.S. 576, 581, 91 S.Ct. 1076, 1080, 28 L.Ed.2d 339, 344 (1971). The injunction in this case is a Prior restraint and there is 'a 'heavy presumption' against its constitutional validity.' Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1, 5 (1971).

'Prior restraint upon speech suppresses the precise freefom which the First Amendment sought to protect against abridgement.'...