J-A10038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEO HERNANDEZ                           :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                  Appellant             :
                                        :
                                        :
            v.                          :
                                        :
                                        :
BRIAN E. QUINN, ESQUIRE, THE            :   No. 2017 EDA 2017
LAW OFFICES OF BRIAN E. QUINN,          :
AND BRIAN E. QUINN ESQUIRE, PC          :

               Appeal from the Order Entered May 17, 2017
   In the Court of Common Pleas of Philadelphia County Civil Division at
                           No(s): 161001514


BEFORE:    GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                             FILED JUNE 27, 2018

      Appellant Leo Hernandez appeals from the order of May 17, 2017, that

sustained the preliminary objections of Appellees Brian E. Quinn, Esquire

(“Mr. Quinn”), The Law Offices of Brian E. Quinn, and Brian E. Quinn,

Esquire, PC, to Appellant’s second amended complaint (“the Complaint”) and

that dismissed the Complaint with prejudice. We affirm in part and reverse

in part. We reverse the trial court’s ruling sustaining Appellees’ preliminary

objections to the counts of invasion of privacy based on intrusion upon

seclusion, invasion of privacy based upon public disclosure of private facts,

invasion of privacy based upon publicity placing another in a false light

before the public, and intentional infliction of emotional distress; we




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10038-18


reinstate those claims. We affirm the trial court’s rulings as to all remaining

preliminary objections and its dismissal of all other counts.

       In January 2013, Appellant, a registered nurse, testified1 in criminal

court against Charles Engelhardt, who was convicted of “one count each of

endangering the welfare of a child, corruption of minors, and indecent

assault.”      Commonwealth            v.      Engelhardt,       No.   2040     EDA     2013

(unpublished     memorandum at           1) (Pa. Super. filed           Mar. 25, 2015)

[hereinafter    Engelhardt]       (footnote       omitted)      (affirming    judgment     of

sentence); see id. at 3 (Appellant’s testimony). During his criminal trial and

appeal, Mr. Engelhardt was represented by Michael J. McGovern, Esquire,

from the firm McElroy, Deutsch, Mulvaney & Carpenter, LLP (“McElroy

Deutsch”). Appellant now alleges that Mr. McGovern attempted to “smear”

Appellant in order to damage Appellant’s credibility. The Complaint at 4-6,

25 ¶¶ 13, 20, 90.2

       In   March    2013,    Appellant        initiated   an   unrelated     civil   medical

malpractice claim against Jay Glickman, D.O., and Independence Medical

____________________________________________


1 See Court of Common Pleas Docket No. CP-51-CR-0003525-2011, Trial
Court Opinion, 12/17/13, at 3.
2 According to the Complaint, the victim in Engelhardt also filed a civil suit
against Mr. Engelhardt and Mr. Engelhardt’s former employer, the
Archdiocese of Philadelphia. The Complaint at 4 ¶ 8. The complaint further
alleged that Mr. McGovern claimed that Appellant “perpetrated a fraud” by
“scheming” with the victim in order to “get paid” in the victim’s civil case.
Id. at 5 ¶ 13.



                                            -2-
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Associates, P.C. (“the Glickman Defendants”), Hernandez v. Glickman,

Court of Common Pleas of Philadelphia County Civil Division Docket No.

130304392 [hereinafter Glickman].              Appellees were personal disciplinary

counsel for the Glickman Defendants.            The Complaint at 6 ¶ 20B.       During

pretrial discovery, both Appellant and his mother gave depositions.

        In   October   2015,    Appellant      commenced   a   civil   action   against

Mr. McGovern and McElroy Deutsch, Hernandez v. McGovern, Court of

Common Pleas of Philadelphia County Civil Division Docket No. 151001280

[hereinafter McGovern].3 The complaint in McGovern alleged defamation,

injurious falsehood, invasion of privacy based upon three different theories,

intentional infliction of emotional distress, illegal distribution of confidential

information, tortious interference with contractual relationship, and civil

conspiracy.

        In October 2016, Appellant commenced this current civil action against

Appellees, Hernandez v. Quinn, Court of Common Pleas of Philadelphia

County Civil Docket No. 161001514, by writ of summons.                  In November

2016, Appellant filed a complaint.             In December 2016, Appellees filed

preliminary objections to the complaint.4 Before the trial court entered an

____________________________________________


3   As of the date of this memorandum, that matter is ongoing.
4 Appellees’ preliminary objections to the initial complaint and preliminary
objections to the first amended complaint raised identical challenges as their
preliminary objections to the Complaint.



                                           -3-
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order on the preliminary objections, in January 2017, Appellant filed an

amended complaint, and Appellees once more filed preliminary objections.

        Again, before the trial court entered an order on the preliminary

objections to the amended complaint, in February 2017, Appellant filed the

Complaint,5 which alleged the following facts:

        20. . . . [Mr.] McGovern . . . acquired [Appellant]’s private and
        confidential medical records, psychiatric records, and civil
        deposition, which he knew he had no authorization to have, and
        further distributed those records in and around Philadelphia and
        Pennsylvania to lawyers, bloggers, the press, and the public at
        large.

        20A . . . [Mr.] McGovern and McElroy Deutsch admitted in
        response to [Appellant]’s discovery requests in this case, and
        also a court order compelling answers to those discovery
        requests, that . . . [Mr.] Quinn had secretly given them
        [Appellant]’s litigation, medical, and psychiatric records—as well
        as pictures.[6] . . .

        20C At the time of the distribution in August and September
        2014, none of these litigation records, medical records, and/or
        pictures had been made public or were filed on the docket in
        [Appellant]’s medical malpractice case. . . .

        20D [Mr.] McGovern had to obtain these records from
        [Mr.] Quinn, personal counsel for the medical malpractice
        defendant, [the Glickman Defendants,] precisely because the
        records were not public. . . .




____________________________________________


5   i.e., the second amended complaint.
6 Later in the Complaint, Appellant clarified that these photographs included
“naked pictures” of him, only intended for attorneys in Glickman. The
Complaint at 24 ¶ 87C.




                                           -4-
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       20F [Mr.] Quinn sent an email (included in Exhibit 1[7] to th[e
       C]omplaint) to [Mr.] McGovern at 3:39 pm on September 18,
       2014, with attachments identified as [Appellant]’s medical
       records from Belmont Behavioral Health and exhibits from
       [Appellant]’s deposition.

       20G [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
       C]omplaint) to [Mr.] McGovern at 3:42 pm on September 18,
       2014, with the attachments identified as pictures of [Appellant]
       and [Appellant]’s house.[8]

       20H [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
       C]omplaint) to [Mr.] McGovern at 3:43 pm on September 18,
       2014, with the attachments identified as pictures of [Appellant].

       20I [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
       C]omplaint) to [Mr.] McGovern at 3:44 pm on September 18,
       2014, with the attachments identified as pictures of
       [Appellant].[9]

       20J [Mr.] Quinn sent an email (included in Exhibit 1 to th[e
       C]omplaint) to [Mr.] McGovern at 3:45 pm on September 18,
       2014, stating that he would provide to Mr. McGovern the
       depositions of [Appellant] and [Appellant]’s mother.


____________________________________________


7 According to Exhibit 1, Mr. McGovern received Appellant’s “deposition,
exhibits to that deposition, photographs, and drug treatment records” for
Appellant from Mr. Quinn. The Complaint, Ex. 1, Def., Michael McGovern,
Esquire Supp. Answers to Pl.’s Interrogs. in McGovern, 8/15/16, at ¶ 7, 8,
18.
8 Although the photographs themselves were not attached to the Complaint,
the file name of one of the attachments is “Leo naked at new home dec
2011.JPG”. The Complaint, Ex. 1, Email from Mr. Quinn to Mr. McGovern
(Sept. 18, 2014, 3:42 p.m.).
9 Although these photographs themselves were also not attached, the file
names of some of the attachments to the email were “Leo naked after
shower.JPG”, “Leo naked at new home dec 2011.JPG”, “Leo naked at
work.JPG”, “Leo post orchiectomy to show me what the loss of testicle
looked like.JPG”.   The Complaint, Ex. 1, Email from Mr. Quinn to
Mr. McGovern (Sept. 18, 2014, 3:44 p.m.).



                                           -5-
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       20K [Mr.] Quinn received an email (included in Exhibit 1 to th[e
       C]omplaint) from a McElroy Deutsch employee named
       Tracey McQuaid at 7:36 am on September 19, 2014, stating that
       a “runner” would pick up the depositions of [Appellant] and
       [Appellant]’s mother.

       20L On or around September 19, 2014, [Mr.] Quinn provided
       the depositions of [Appellant] and/or [Appellant]’s mother to a
       courier and/or a runner.

       20M On or      around September 19, 2014, someone acting at the
       direction of   and/or on behalf of [Mr.] Quinn, through an agency
       relationship    and/or employment, provided the depositions of
       [Appellant]    and/or [Appellant]’s mother to a courier and/or a
       runner.

       21. The privacy of those records are protected by law and
       [Mr.] McGovern had absolutely no authorization to receive or
       distribute [Appellant]’s medical, psychiatric, and legal records.
       [Mr.] McGovern’s conduct is a shocking breach of [Appellant]’s
       privacy rights, and his conduct in doing so was in violation of the
       Rules of Civil Procedure, Rules of Criminal Procedure, the
       Philadelphia Civil Rules, Disciplinary rules, and state/federal law
       (such as HIPAA) including the state and federal constitutions.
       ...

       24. In addition, [Appellant]’s deposition from [Glickman] was
       anonymously mailed to [Appellant]’s employer and the state
       nursing board in an unmistakable attempt to have him fired from
       his job. . . .

       25A Upon information and belief, [Mr.] Quinn was involved in
       the distribution of [Appellant]’s medical malpractice deposition to
       his employer.

       25B [Mr.] Quinn wrote the document attached as Exhibit 2[10]
       to th[e C]omplaint.


____________________________________________


10 Exhibit 2 appears to be a one-page cover letter for the copy of Appellant’s
deposition that was mailed to his employer, but it is not labelled as such and
does not mention the deposition in the text. The letter is to the attention of
“Jill Stunkard MSN RN” and is undated and unsigned. The letter is copied
(Footnote Continued Next Page)


                                           -6-
J-A10038-18


      25C Someone acting at the direction and/or on behalf of [Mr.]
      Quinn, through an agency relationship and/or employment,
      wrote the document attached as Exhibit 2 to th[e C]omplaint.

      25D [Mr.] Quinn mailed the document attached as Exhibit 2 to
      th[e C]omplaint.

      25E Someone acting at the direction of and/or on behalf of
      [Mr.] Quinn, through agency relationship and/or employment,
      mailed the document attached as Exhibit 2 to th[e C]omplaint.

      25F [Mr.] Quinn knows the identity of the individual who
      mailed the document attached as Exhibit 2 to th[e C]omplaint.

      25G [Mr.] Quinn knows the identity of the individual who
      mailed the envelope attached as Exhibit 3[11] to th[e C]omplaint.

      25H [Mr.] Quinn knows the identity of the individual who
      handwrote the addresses on the envelope attached as Exhibit 3
      to th[e C]omplaint.

The Complaint at 6-10 ¶¶ 20-20A, 20C-D, 20F-M, 21, 24, 25A-H.


(Footnote Continued) _______________________

(“cc:”) to “Richard Greenberg MD”, “Deborah Cattolico BSN CMSNN MSN”,
and “PA State Board of Nursing”.
11  Exhibit 3 to the Complaint is a photocopy of the front and back of an
envelope with the handwritten mailing address of “Einstein Medical Center,
Jill Stunkard MSN RN, 5501 Old York Rd, Philadelphia, PA 19141” and with
the handwritten return address of “Einstein Med. Ctr. – Elkins Park, 60
Township Rd, Elkins Park, PA 19027.” There is no address to or from
Appellees, McElroy Deutsch, or Mr. McGovern. The Complaint, Ex. 3, at 1-2.
Additionally, the postmark on the envelope is from “Doylestown, PA 18901”
in August 2014. Id. at 1; accord the Complaint at 9 ¶ 24 (“Discovery
obtained from the United States Post Office revealed that whoever sent
these documents did so from the Doylestown, PA post office.”).

(We are uncertain why Appellant draws the court’s attention to the fact that
the envelope was mailed from Doylestown, as the Complaint avers that
Appellant, Mr. McGovern, McElroy Deutsch, Mr. Quinn, The Law Offices of
Brian E. Quinn, and Brian E. Quinn Esquire, PC, all have Philadelphia
addresses. The Complaint at 14-15 ¶¶ 36, 39, 43, 43D, 43F, 43I.)




                                          -7-
J-A10038-18


      The Complaint pleaded the following causes of action:         invasion of

privacy based upon intrusion upon seclusion, public disclosure of private

facts, and false light; intentional infliction of emotional distress (“IIED”);

illegal distribution of confidential information; tortious interference with

contractual relationship (“tortious interference”); and civil conspiracy. Id. at

22-34 ¶¶ 77-118.

      For the count of invasion of privacy based upon public disclosure of

private facts, the Complaint added that Appellees “acquired” Appellant’s

“private and confidential records and pictures, and the facts contained

therein, and distributed them to [Mr.] McGovern and others without any

authorization whatsoever.”      Id. at 24 ¶ 87A.        It continues:    “Upon

information and belief, [Appellees] distributed these confidential records to

other individuals and entities who had no authorization to possess[] them,

including [Appellant]’s place of employment.” Id. at ¶ 87B.

      For the count of false-light invasion of privacy, the Complaint further

stated:

      95A [Appellees’] distribution of [Appellant]’s litigation records
      to his employer and the nursing board, as well as being
      malicious, was done to portray Appellant in a false light at his
      workplace. [Appellee] highlighted specific portions of the long
      deposition out of context (from both the entire deposition and
      the overall litigation), specifically for the purpose of having
      [Appellant] fired.

      95B At all points [Mr.] Quinn intended to portray [Appellant] in
      2014 as a drug addict and otherwise immoral person . . .

      95C [Appellees] also distributed the litigation records, medical
      records, and pictures to [Mr.] McGovern for the same purpose

                                     -8-
J-A10038-18


      demonstrated by [Mr.] Quinn when he sent the litigation records
      to [Appellant]’s employer and the nursing board. [Mr.] Quinn
      knew or should have known, and intended, that [Mr.] McGovern
      would also improperly use the documents.

      95D The articles in question also falsely portray [Appellant] in a
      false light as they omit many contextual facts which would place
      [Appellant] in a different light if they were known to the reader.

Id. at 26-27 ¶¶ 95A-D.

      For the count of tortious interference, the Complaint also stated that

Appellant “had and has a contractual employment relationship with

Albert Einstein Medical Center.” Id. at 32 ¶ 109.

      In March 2017, Appellees filed preliminary objections requesting

demurrer on all counts of the Complaint. Prelim. Objs. of Appellees to the

Complaint, 3/6/17, at 3-4, 6-7, 9, 11-12, 14-15. Preliminary objections of

the ground of demurrer – i.e., legal insufficiency of the pleading – are raised

pursuant   to   Pa.R.C.P.   1028(a)(4).    Appellees’   preliminary   objections

contained averments raising facts that were not already of record. Prelim.

Objs. of Appellees to the Complaint, 3/6/17, at 5-7, 15-17 ¶¶ 23, 25, 30,

33, 36, 72-80. Specifically, these were facts about Glickman that were not

included in the Complaint, including that Appellant’s testimony in his

deposition for Glickman allegedly “contradicted” his in-court testimony in

Engelhardt; a purported release from a settlement agreement in Glickman

was attached to the preliminary objections as Exhibit A (“the Release”). Id.

at 5, 7, 15-16 ¶¶ 23, 25, 36, 74, 76 & Ex. A.             Appellant then filed

preliminary objections to Appellees’ preliminary objections.


                                     -9-
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     On May 17, 2017, the trial court entered two orders: one overruled

Appellant’s preliminary objections to Appellees’ preliminary objections; the

other sustained Appellees’ preliminary objections to the Complaint “in their

entirety” and dismissed the Complaint with prejudice.         The trial court

simultaneously issued a “Memorandum in Support of Order Dismissing [the]

Complaint” and a “Supplemental Memorandum Relating to the General

Release Executed by [Appellant].”

     In June 2017, Appellant timely filed this appeal. The trial court did not

order and Appellant did not provide a statement of matters complained of on

appeal pursuant to Pa.R.A.P. 1925(b), but the trial court filed an opinion

pursuant to Pa.R.A.P. 1925(a).

     Appellant now raises the following issues on appeal:

     [1.] Affirmative defenses may not be advanced at the
     preliminary objection stage. Was it reversible error for the [trial]
     court to prematurely adjudicate several affirmative defenses--
     over [Appellant]’s objection--when [Appellant] was prejudiced
     and harmed by these improper rulings which were done in
     violation of the Rules?

     [2.] Did the [trial] court misinterpret the plain language and
     scope of the Release which in no way applies to the actions of
     [Appellees] where [they] engaged in a pattern of secretive
     witness intimidation and retaliation against [Appellant] by
     distributing his medical and psychiatric records to third parties
     outside the malpractice action, which was illegal, violated public
     policy, and went far beyond the scope of the Release?

     [3.   Appellees] never verified their pleadings.      Neither the
     Release--nor any of the allegations surrounding the Release--
     which the [trial] court relied upon were verified by anyone. Was
     it reversible error when the [trial] court failed to sustain
     [Appellant]’s preliminary objections concerning the failure of
     [Appellees] to submit a verification for substantive facts and

                                    - 10 -
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     documents which the [trial] court relied upon in coming to its
     findings?

     [4.    Appellant] had a constitutional right to privacy for his
     psychiatric and medical records. Was it reversible error for the
     [trial] court to dismiss this cause of action when there was
     irrefutable documentary proof that [Appellees] had in fact
     illegally distributed [Appellant]’s confidential records?

     [5.   Appellant] retains full medical privacy rights outside of a
     medical malpractice action. [Appellees] distributed [Appellant]’s
     medical and psychiatric records to third parties outside the
     malpractice action without authorization and for an improper
     purpose. Did the [trial] court wrongly find that [Appellant] had
     no privacy rights for his medical records and erroneously dismiss
     the invasion of privacy claims?

     [6.     Appellant] pled that [Appellees] anonymously sent
     litigation records to [Appellant]’s employer with the intent and
     purpose of having [Appellant] fired, and distributed his
     confidential psychiatric records to third parties. Did the [trial]
     court erroneously dismiss [Appellant]’s tortious interference . . .
     and [IIED] claims because it failed to credit these facts in
     [Appellant]’s favor?

Appellant’s Brief at 9-10 (emphasis in original) (issues re-ordered to

facilitate disposition and suggested answers omitted).

     In considering an appeal from an order granting preliminary
     objections in the nature of a demurrer, which is a question of
     law, our standard of review is de novo and our scope of review is
     plenary.

     The court may sustain preliminary objections only when, based
     on the facts pleaded, it is clear and free from doubt that the
     complainant will be unable to prove facts legally sufficient to
     establish a right to relief. For the purpose of evaluating the legal
     sufficiency of the challenged pleading, the court must accept as
     true all well-pleaded, material, and relevant facts alleged in the
     complaint and every inference that is fairly deducible from those
     facts.

Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 641 (Pa. Super.

2016) (citations omitted) (some formatting added).

                                    - 11 -
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       “In ruling on preliminary objections in the nature of a demurrer, the

trial court may consider no testimony or evidence outside of the complaint.”

Schmidt v. Deutsch Larrimore Farnish & Anderson, LLP, 876 A.2d

1044, 1046 (Pa. Super. 2005). “[P]reliminary objections in the nature of a

demurrer . . . should be sustained only if, assuming the averments of the

complaint to be true, the plaintiff has failed to assert a legally cognizable

cause of action.” Langella v. Cercone, 34 A.3d 835, 838 (Pa. Super. 2011)

(citation omitted).

            Affirmative Defenses, the Release, and Verification

       We begin by addressing Appellant’s challenges to the inclusion of

“affirmative defenses”12 and the Release in Appellees’ preliminary objections

and the lack of a verification with those preliminary objections. Appellant’s

Brief at 44-48 (Appellant’s argument about “affirmative defenses . . . at the

preliminary objection stage”), 65-66 (Appellant’s argument about the lack of

verification, including challenges to Appellees’ failure to verify the Release

and “any of the allegations surrounding the Release” (citing Atl. Credit &

Fin., Inc. v. Giuliana, 829 A.2d 340, 344 (Pa. Super. 2003)).

       Appellant is correct that Appellees should not have included any new

factual averments – i.e., averments that were not included in the Complaint

____________________________________________


12 We do not necessarily subscribe to Appellant’s characterization of certain
paragraphs of Appellees’ preliminary objections to the Complaint as
“affirmative defenses,” but we need not reach this issue.



                                          - 12 -
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--   in    their    preliminary   objections   pursuant    to   Pa.R.C.P.    1028(a)(4)

requesting demurrer. See Langella, 34 A.3d at 838; Schmidt, 876 A.2d at

1046. To do so is an improper “speaking demurrer.” See, e.g., Welteroth

v. Harvey, 912 A.2d 863, 869 (Pa. Super. 2006); Regal Indus. Corp. v.

Crum & Foster, Inc., 890 A.2d 395, 398 (Pa. Super. 2005).                     Any such

facts, including the existence and content of the Release, should be stricken

at this stage, see Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 5-

7, 15-17 ¶¶ 23, 25, 30, 33, 72-80 & Ex. A. To the extent that the trial court

considered them, it was in error.13

          As a verification is only required where new averments of fact are

pleaded and as we have eliminated all new averments of fact from the

preliminary objections, there is no need for a verification, and any

consideration of whether one should have been attached to the preliminary

objections      hence    is   moot.    See     Pa.R.C.P.   1024(a)   (only    pleadings

“containing an averment of act not appearing of record in the action” require

a verification).

                   Illegal Distribution of Confidential Information

          Next, Appellant contends that he “had a constitutional right to privacy

for his psychiatric and medical records” and that “it was reversible error for

____________________________________________


13  We make no determination as to Appellees’ ability to introduce the
Release and any other evidence about or from Glickman at any later stage
of the current action.



                                          - 13 -
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the [trial] court to dismiss this cause of action for the illegal distribution of

[his] confidential records.” Appellant’s Brief at 25.

       However, we find no such tort as “illegal distribution of confidential

information” in Pennsylvania, the Complaint at 30-31 ¶¶ 103-107, and

Appellant provides us with no Pennsylvania authority to support this cause of

action.    Appellant’s Brief, at 27, cites to a Supreme Court of Ohio case,

Hageman v. Sw. Gen. Health Ctr., 893 N.E.2d 153, 154, 156, 158 (Ohio

2008), recognizing this tort; however, in Hageman, only two justices joined

the opinion, while two justices concurred, and two justices dissented. Id. at

158.      We decline to create a new cause of action in Pennsylvania.

Appellant’s challenge thus fails to merit relief.

                             Invasion of Privacy

       “[I]nvasion 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.” Tagouma v. Investigative Consultant Servs., Inc., 4 A.3d

170, 174 (Pa. Super. 2010) (citation omitted). Here, Appellant contended

that Appellees engaged in the first, third, and fourth torts. The Complaint at

22-27 ¶¶ 77-97.

       Even though these are three separate causes of action, the trial court

memorandum combined all three, writing:


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      Not only did [Appellant] choose to place his personal life at issue
      when he filed a medical malpractice claim, [Appellant] testified
      in one of a series of very public and publicized criminal trials.
      . . . [Appellant’s] actions and inactions were within the scope of
      legitimate public concern. He was “news” and newsworthy, even
      though he may not have sought nor wanted publicity. Moreover,
      it is well-established that a plaintiff in a civil case or a claimant in
      a Workers’ Compensation matter have diminished expectations
      of privacy.       A patient’s privacy interests and rights to
      confidentiality are reduced when he files suit.

Trial Court Mem. in Supp. of Order Dismissing Appellant’s the Complaint

(TCM), 5/17/17, at 8-9 (citations omitted).

      In his brief to this Court, Appellant likewise combines his argument

about the dismissal of his invasion of privacy claims, contending that he

“retain[ed] full medical privacy rights outside of a medical malpractice”

action and that the trial court “wrongly found [he] had no privacy rights for

his medical records and erroneously dismissed the invasion of privacy

claims.” Appellant’s Brief at 30. He continues that the trial court “analyzed

a completely wrong legal standard, failing to apply the correct legal analysis

explained in Moses v. McWilliams,” 549 A.2d 950, 959 (Pa. Super. 1988)

(en banc). Appellant’s Brief at 32.

      Appellees raised separate preliminary objections to each of the three

different invasion of privacy causes of action. We will consider each in turn.

                            Intrusion Upon Seclusion

      According to Appellees’ preliminary objection to Appellant’s cause of

action for invasion of privacy based on intrusion upon seclusion, Appellant

“gave up his right to ‘seclusion’ of the details of his personal life” by filing


                                      - 15 -
J-A10038-18


Glickman and thereby “chose to place his personal life, medical history, and

social history in a public forum when he filed suit[.]”       Prelim. Objs. of

Appellees to the Complaint, 3/6/17, at 4 ¶¶ 18, 21.

       The trial court concluded that Appellant was “an involuntary public

figure” – i.e., an “individual[] who had not sought publicity or consented to

it, but through their own conduct or otherwise became a legitimate subject

of public interest” -- who “testified in one in a series of very public and

publicized criminal trials.” TCM at 8 (quoting Restatement (Second) of Torts

§ 652D cmt. f).14 The trial court also found that Appellant’s intrusion upon

seclusion claim, the Complaint at 22-23 ¶¶ 77-84, did “not aver that

[Appellees] were not properly or legitimately in possession of the challenged

materials in the course of and scope of their representation of” the Glickman

Defendants. TCM at 10.

       However, Appellees’ preliminary objections never raised the question

of whether they had properly obtained the challenged materials nor

contended that Appellant had relinquished his right to seclusion by testifying

in Engelhardt.       Instead, the preliminary objections argued that Appellant

had “given up his right to ‘seclusion’” by initiating Glickman. Prelim. Objs.


____________________________________________


14  Restatement (Second) of Torts § 652D cmt. f only applies to causes of
action for invasion of privacy based upon publicity given to another’s private
life, not for intrusion upon seclusion.




                                          - 16 -
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of Appellees to the Complaint, 3/6/17, at 4 ¶ 21.      Thus, the trial court

decided this preliminary objection on an improper basis.

     Based upon a de novo standard of review, Heldring, 151 A.3d at 641,

we may now consider the merit of Appellees’ actual preliminary objection to

Appellant’s intrusion upon seclusion claim.    In doing so, we strenuously

disagree with Appellees’ interpretation that information acquired during

discovery in a medical malpractice lawsuit is automatically “in a public

forum.” Appellees’ Brief at 14. As this Court has asserted:

     [P]rivate documents collected during discovery are not judicial
     records.     Anderson v. Cryovac, Inc., 805 F.2d 1 (1st
     Cir.1986); see also Seattle Times v. Rhinehart, 467 U.S. 20,
     104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). . . . [D]iscovery is
     essentially a private process. As stated by the Supreme Court in
     Seattle Times, “pretrial depositions and interrogatories are not
     public components of a civil trial.” Seattle Times, 467 U.S. at
     33, 104 S. Ct. at 2207.          Thus, wrote the Court, “such
     proceedings were not open to the public at common law.” Id.
     Justice Burger wrote separately in another Supreme Court
     opinion that “it has never occurred to anyone, so far as I am
     aware, that a pretrial deposition or pretrial interrogatories were
     other than wholly private to the litigants.” Gannett Company
     v. DePasquale, 443 U.S. 368, 396, 99 S.Ct. 2898, 2914, 61
     L.Ed.2d 608, 632 (1979).

Stenger v. Lehigh Valley Hosp. Ctr., 554 A.2d 954, 960-61 (Pa. Super.

1989) (some citations omitted).      Appellant’s deposition and any other

documents or information obtained by Appellees during discovery in

Glickman had not been filed on that docket or otherwise entered into

evidence in that case, the Complaint at 7 ¶ 20C, and hence were not

publicly available judicial records. See Stenger, 554 A.2d at 960-61. Thus,



                                   - 17 -
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Appellees’ contention that the challenged materials somehow became public

and that their contents were no longer private and consequently could be

disseminated indiscriminately is erroneous.

       Additionally, a plaintiff’s status as a public figure is not a defense to

intrusion upon seclusion. The Restatement (Second) of Torts § 652B cmt. b

(1977)15 provides two useful examples:

       A, a woman, is sick in a hospital with a rare disease that arouses
       public curiosity. B, a newspaper reporter, calls her on the
       telephone and asks for an interview, but she refuses to see him.
       B then goes to the hospital, enters A’s room and over her
       objection takes her photograph. B has invaded A’s privacy. . .

       A, a professional photographer, seeking to promote his business,
       telephones B, a lady of social prominence, every day for a
       month, insisting that she come to his studio and be
       photographed. The calls are made at meal times, late at night
       and at other inconvenient times, and A ignores B’s requests to
       desist. A has invaded B’s privacy.

Id. illus. 1, 5.     Therefore, even if an individual is the subject of public

interest or is a public or socially prominent figure, his or her privacy may still

be invaded pursuant to a theory of intrusion upon seclusion. Hence, even

assuming that Appellant’s decision to testify as what Appellees characterize

as “a crucial witness in a highly publicized criminal trial,” Appellees’ Brief at
____________________________________________


15 Although the Supreme Court of Pennsylvania has not officially adopted the
definition of intrusion upon seclusion as set forth in the Restatement
(Second) of Torts § 652B, this Court has relied upon it and its comments in
analyzing such claims. See, e.g., Tagouma, 4 A.3d at 174. In the absence
of a contrary pronouncement by the Supreme Court, we are free to adopt
sections of the Restatement in an appropriate case. Newell, 154 A.3d at
824 n.7.



                                          - 18 -
J-A10038-18


14, made him a public figure, such status would not justify an intrusion upon

his solitude or seclusion.16

       Appellees’ objection to Appellant’s claim for invasion of privacy based

on intrusion upon seclusion thus is unsupportable.            For this reason, this

objection should have been overruled, and we reverse the decision of the

trial court and reinstate the count of invasion of privacy based on intrusion

upon seclusion.

                            Publicity Given to Private Life

       The elements of an invasion of privacy claim based upon publicity

given to private life are: “publicity, given to private facts, which would be

highly offensive to a reasonable person and which are not of legitimate

concern to the public.”       Strickland v. Univ. of Scranton, 700 A.2d 979,

987 (Pa. Super. 1997) (citation omitted).

       Appellees preliminarily objected to this count, maintaining that,

although the Complaint insists that “private facts” were disclosed, the

Complaint fails to detail what those private facts were.          Prelim. Objs. of

Appellees to the Complaint, 3/6/17, at 6 ¶ 29.


____________________________________________


16 Additionally, we are concerned that Appellees’ suggestion that anyone
who testifies in a criminal case could suddenly have his or her private
information, including medical records and intimate photographs, considered
publicly available would have a chilling effect on individuals’ willingness to
testify at criminal trials.




                                          - 19 -
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       This assertion is incorrect.      The Complaint is replete with allegations

that Appellees disclosed specific private facts, including the unauthorized

distribution of Appellant’s medical records from Belmont Behavioral Health,

drug treatment records, other medical and psychiatric records,                and

photographs of Appellant while naked.              The Complaint at 6-8, 24 ¶¶ 20,

20A, 20C, 20F-20G, 20I, 21, 87C & Ex. 1, Def., Michael McGovern, Esquire

Supp. Answers to Pl.’s Interrogs. in McGovern, 8/15/16, at ¶ 7, 8, 18 &

Emails from Mr. Quinn to Mr. McGovern (Sept. 18, 2014, 3:42 and 3:44

p.m.).17    Accordingly, Appellees’ first preliminary objection to Appellant’s

claim of invasion of privacy based upon publicity given to private life fails.

       Next, Appellees repeat the same objection that they made against the

intrusion upon seclusion invasion of privacy claim – i.e., that, “[b]y filing a

civil suit alleging personal injuries, [Appellant] relinquished his expectation

of privacy[,]” that Appellant’s “personal life and medical issues became

relevant and public issues in his civil suit[,]” and that Appellees thus cannot

be held liable for merely giving further publicity to information about a party

that is already public. Prelim. Objs. of Appellees to the Complaint, 3/6/17,

at 6-7 ¶¶ 32, 34.        This objection fails for the same reason that it was
____________________________________________


17 “[T]he appellate court must examine the averments in the complaint,
together with the documents and exhibits attached thereto, in order to
evaluate the sufficiency of the facts averred.” N. Forests II, Inc. v. Keta
Realty Co., 130 A.3d 19, 35 (Pa. Super. 2015). We thus have examined
Exhibit 1 attached to the Complaint when determining the sufficiency of the
facts averred.



                                          - 20 -
J-A10038-18


unsuccessful under the invasion of privacy claim based on intrusion upon

seclusion – i.e., private documents collected during discovery are not judicial

records and not public. See Stenger, 554 A.2d at 960-61.

       For these reasons, none of Appellees’ preliminary objections to the

count of invasion of privacy based upon publicity given to private life are

sustainable. Consequently, we reverse the trial court’s decision to sustain

these objections, and we reinstate this count.18

           Publicity Placing Another in a False Light Before the Public

       “The tort of false light-invasion of privacy involves publicity that

unreasonably places the other in a false light before the public.” Rush v.

Phila. Newspapers, Inc., 732 A.2d 648, 654 (Pa. Super. 1999) (citations

and internal quotation marks omitted). Appellees objected to this count on

the basis that the Complaint did not plead facts alleging that they provided

____________________________________________


18  As with the preliminary objection to the previous invasion of privacy
count, this preliminary objection only challenges whether the information
disclosed was private. It does not raise any claims concerning the additional
elements of invasion of privacy based upon publicity given to private facts,
including whether the Complaint properly pleaded the element of “publicity”
itself. Again, neither we nor the trial court could hence consider whether
this element was properly pleaded. To the extent the trial court considered
whether the Complaint sufficiently pleaded the element of publicity for the
publicity given to private life cause of action, it did so erroneously. See
MacGregor v. Mediq Inc., 576 A.2d 1123, 1128 (Pa. Super. 1990)
(“matters not raised in preliminary objections may not be considered by the
court sua sponte”); Alumni Assoc., Delta Zeta of Lambda Chi Alpha
Fraternity v. Sullivan, 535 A.2d 1095, 1101 (Pa. Super. 1987) (“matters
not raised in preliminary objections are not to be considered by the court
sua sponte”).



                                          - 21 -
J-A10038-18


Appellant’s deposition to the press or to Appellant’s employer. Prelim. Objs.

of Appellees to the Complaint, 3/6/17, at 8 ¶ 40.

        “[P]ublicity” 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. Thus, it is not an invasion of
        the right of privacy to communicate a fact concerning the
        plaintiff’s private life to a single person or even to a small group
        of persons.

Doe v. Wyo. Valley Health Care Sys., Inc., 987 A.2d 758, 765-66 (Pa.

Super. 2009) (internal citations, ellipsis, and some quotation marks

omitted).

        Here, the body of the Complaint itself only named one specific person

to    whom    Appellees     allegedly    disclosed   the   challenged   materials   --

Mr. McGovern.19 The Complaint at 6-8, 24 ¶¶ 20A, 20D, 20F-20M, 87A. As

noted above, disclosure to one person is insufficient to establish the element

of “publicity.” See Doe, 987 A.2d at 766.

        However, the Complaint also averred that Mr. Quinn “knew or should

have known, and intended, that [Mr.] McGovern would also improperly use

the documents.” The Complaint at 27 ¶ 95C; accord Appellant’s Brief at 36.

This alleged improper use of the documents by Mr. McGovern is that he gave

the challenged materials to “bloggers, the press, and the public at large.”

The Complaint at 6 ¶ 20.

____________________________________________


19   Mr. McGovern is not named as a defendant in the Complaint.



                                          - 22 -
J-A10038-18


       Furthermore, the Complaint alleged that Appellees “distributed these

confidential    records    to   other    individuals    and   entities    who    had    no

authorization     to    possess[]     them,       including   [Appellant]’s     place   of

employment.”       Id. at 24 ¶ 87B.20          The Complaint also later contends that

Mr. Quinn “sent the litigation records to [Appellant]’s employer and the

nursing board.” Id. at 27 ¶ 95C.21

       Accordingly, the Complaint alleged that Appellees directly sent the

challenged materials to Mr. McGovern, Appellant’s employer, and the nursing

board and, through Mr. McGovern, indirectly sent these materials to

bloggers, the press, and the public at large. Id. at 6, 24, 27 ¶¶ 20, 87B,

95C. The Complaint consequently communicated to many people, not just

one person, and ergo sufficiently pleaded the element of publicity for the

false-light invasion of privacy count. See Doe, 987 A.2d at 765-66.


____________________________________________


20The false-light invasion of privacy claim is Paragraphs                92 to 97 of the
Complaint. The Complaint at 26-27 ¶¶ 92-97. Paragraph                    92 “incorporates
by reference and realleges the preceding paragraph[.]”                    Id. at 26 ¶ 92
(emphasis added). The factual allegation in Paragraph 87B                can therefore be
applied to the false-light invasion of privacy count.
21 In addition, the cover letter attached to the Complaint as Exhibit 2 and the
photocopy of the envelope attached to the Complaint as Exhibit 3 both
explicitly listed “Jill Stunkard MSN RN” as the recipient and the letter
indicated that it was copied to “Richard Greenberg MD” and
“Deborah Cattolico BSN CMSNN MSN.” Hence, if we examine these exhibits
and not just the text of the Complaint itself, see N. Forests, 130 A.3d at
35, then we could also find that Appellant has named other particular
individuals as recipients of the challenged materials, not just Mr. McGovern.



                                          - 23 -
J-A10038-18


      Appellees also objected to the false-light count, because the Complaint

failed to assert facts to establish that Appellees acted with malice. Prelim.

Objs. of Appellees to the Complaint, 3/6/17, at 8-9 ¶¶ 43, 45.            See

Appellant’s Brief at 14.

      “The required standard of fault in a false light claim is . . . actual

malice.    See Time, Inc. v. Hill, 385 U.S. 374, 387, 87 S.Ct. 534, 17

L.Ed.2d 456 (1967) (defining actual malice as ‘knowledge that the

statements are false or in reckless disregard of the truth’).” Rubin v. CBS

Broad. Inc., 170 A.3d 560, 568 n.9 (Pa. Super. 2017). “Unlike the law of

defamation, false light invasion of privacy offers redress not merely for the

publication of matters that are provably false, but also for those that,

although true, are selectively publicized in a manner creating a false

impression.” Id. at 568 (citation and internal brackets and ellipsis omitted).

      Here, the Complaint stated that, when Appellees sent materials to

Appellant’s employer and to the nursing board, the Complaint at 24, 27

¶¶ 87B, 95C, he “highlighted specific portions” with the intent “to falsely

portray [Appellant] in 2014 as a drug addict and otherwise immoral person.”

Id. at 26 ¶¶ 95A-B. The Complaint also asserted that the blog articles that

resulted from the materials sent by Appellees to Mr. McGovern “falsely

portrayed [Appellant] in a false light as they omit many contextual facts

which would place [Appellant] in a different light if they were known to the

reader.”   Id. at 27 ¶ 95D.   Thus, although the Complaint does not allege


                                    - 24 -
J-A10038-18


that the challenged materials were “provably false,” it instead expresses that

the materials were “selectively publicized in a manner creating a false

impression.” Rubin, 170 A.3d at 568. The Complaint thereby sufficiently

pleaded malice for the count of false-light invasion of privacy.

      Therefore, Appellees’ preliminary objections to the false-light invasion

of privacy count should have been overruled, and demurrer should not have

been granted on this count. We thus reinstate this claim.

                           Tortious Interference

      Next, Appellant maintains that he pleaded adequate facts to establish

a legally sufficient cause of action for tortious interference. Appellant’s Brief

at 37.   Specifically, he insists that the trial court “failed to credit” his

averments that Appellees “anonymously sent litigation records to [his]

employer with the intent and purpose of having [him] fired” and that

Mr. Quinn was the individual “who was distributing [Appellant]’s records

outside the [Glickman] litigation in the late summer of 2014.” Id. at 37-

38. He continued that the trial court “required of [him] a super[-]elevated

level of proof not warranted by law” and erroneously “dismissed the case

claiming the Complaint was contradictory,” because the trial court “failed to

realize that [Appellant] is permitted to plead claims in the alternative under

the Rules of Civil Procedure[.]” Id. at 38, 42.

      Appellees’ preliminary objection to Appellant’s tortious interference

claim asserts that this count was legally insufficient, because “none of the


                                     - 25 -
J-A10038-18


information [Appellant] claims to have been disclosed is false.” Prelim. Objs.

of Appellees to the Complaint, 3/6/17, at 13 ¶ 63.

      Tortious interference with prospective or existing contractual
      relations consists of the following elements:

         (1) the existence of a contractual, or prospective
         contractual relation between the complainant and a third
         party;

         (2) purposeful action on the part of the defendant,
         specifically intended to harm the existing relation, or to
         prevent a prospective relation from occurring;

         (3) the absence of privilege or justification on the part of
         the defendant; and

         (4) the occasioning of actual legal damage as a result of
         the defendant’s conduct.

Maverick Steel Co. v. Dick Corp./Barton Malow, 54 A.3d 352, 354-55

(Pa. Super. 2012) (citation omitted).

      “[T]he third element of the tort requires a showing that defendant’s

actions were not privileged.”     Salsgiver Commc'ns, Inc. v. Consol.

Commc'ns Holdings, Inc., 150 A.3d 957, 966 (Pa. Super. 2016) (citation

and internal brackets omitted).    “[O]ne who intentionally causes a third

person not to perform a contract with another does not interfere improperly

with the other’s contractual relation by giving the third person truthful

information.” Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 20

A.3d 468, 471 (Pa. 2011). We find no exception or qualification for matters

that “are selectively publicized in a manner creating a false impression,” as

with claims for false-light invasion of privacy. Rubin, 170 A.3d at 568.



                                    - 26 -
J-A10038-18


       Here, the Complaint contended that Appellees sent Appellant’s

deposition and litigation records from Glickman and other confidential

records to his employer, Einstein Medical Center. The Complaint at 24, 27,

32 ¶¶ 87B, 95C, 109. At no point does the complaint maintain that any of

Appellant’s own deposition testimony was false or that any of the material

contained in his litigation and other confidential records was false.        See

generally id.        As giving a third party truthful information cannot be

considered “improper” and as actions must be “improper” in order to fulfill

the third element of tortious interference, by failing to plead that Appellees

provided Einstein Medical Center with false information, the complaint failed

to establish that Appellees’ actions were not privileged and, accordingly,

failed to plead the third element of tortious interference.      Salsgiver, 150

A.3d at 966; Walnut, 20 A.3d at 471; Maverick, 54 A.3d at 355.22 Thus,

we affirm the trial court’s dismissal of this claim.

                                          IIED

       Appellant raises the same contentions about the dismissal of his IIED

claim as he did for his tortious interference claim. Appellant’s Brief at 37-38,

43.
____________________________________________


22 We thus need not reach the issue of whether the trial court used an
inappropriately heightened level of proof when evaluating whether Appellant
sufficiently pleaded a tortious interference cause of action or if the trial court
should have considered whether the Complaint was internally inconsistent.
Appellant’s Brief at 38, 42; see TCM at 11 (“The factual allegations of
‘wrongful conduct’ by [Appellees] are contradictory and unsupported.”).



                                          - 27 -
J-A10038-18


       Appellees’ preliminary objection to Appellant’s IIED count stated that

Appellant had not alleged any act so extreme or outrageous as would be

sufficient to establish IIED.       Prelim. Objs. of Appellees to the Complaint,

3/6/17, at 9-10 ¶¶ 49-50 (citing Hoy v. Angelone, 720 A.2d 745, 753-54

(Pa. 1998) (conduct must be atrocious, “extreme[,] or clearly outrageous”

and not even criminal conduct is always sufficient)).23

____________________________________________


23 We need not consider whether Appellant sufficiently pleaded other
elements of IIED, as Appellees have only challenged whether the Complaint
pleaded facts that, if true, would be sufficiently outrageous to support an
IIED claim. Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 9-11
¶¶ 48-53.

Ergo, we cannot consider whether the Complaint pleaded the remaining
requirements of IIED, including the existence of a physical injury. See
Rolla v. Westmoreland Health Sys., 651 A.2d 160, 161-63 (Pa. Super.
1994) (appeal from order granting appellees’ preliminary objections in the
nature of a demurrer and dismissing with prejudice appellant’s complaint,
including claim for emotional distress; appellant asserted that emotional
harm is just as damaging as physical harm and contended that “in the area
of damages, it is believed that recent United States Supreme Court cases in
the area of discrimination establish that physical harm is not necessary to
have occurred”; this Court disagreed, holding that, for IIED, plaintiffs must
allege physical injury); Hart v. O’Malley, 647 A.2d 542, 553-54 (Pa. Super.
1994) (appellants failed to state an IIED claim, because they “fail[ed] to
allege physical injury”).

Additionally, Appellees’ preliminary objection to the IIED cause of action do
not contend that the factual allegations supporting said claim were
contradictory. Prelim. Objs. of Appellees to the Complaint, 3/6/17, at 9-11
¶¶ 48-53. Thus, the trial court should not have considered this question, as
it did at TCM at 11. See MacGregor, 576 A.2d at 1128; Alumni, 535 A.2d
at 1101. Hence, we also do not need to consider Appellant’s argument that
the trial court “failed to realize that [Appellant] is permitted to plead claims
in the alternative under the Rules of Civil Procedure and dismissed the case
claiming the Complaint was contradictory.” Appellant’s Brief at 42.



                                          - 28 -
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     Appellees are correct that, in order to recover on a claim of IIED, “a

plaintiff must prove that the defendant by extreme and outrageous conduct

intentionally or recklessly caused severe emotional distress.”           Gray v.

Huntzinger, 147 A.3d 924, 927 (Pa. Super. 2016) (citation and internal

brackets and quotation marks omitted), appeal denied, 168 A.3d 1238 (Pa.

2017).

     The Restatement (Second) of Torts defines “extreme and
     outrageous conduct” as follows:

          The cases thus far decided have found liability only where
          the defendant’s conduct has been extreme and
          outrageous. It has not been enough that the defendant
          has acted with an intent which is tortious or even criminal,
          or that he has intended to inflict emotional distress, or
          even that his conduct has been characterized by “malice,”
          or a degree of aggravation which would entitle the plaintiff
          to punitive damages for another tort. Liability has been
          found only where the conduct has been so outrageous in
          character, and so extreme in degree, as to go beyond all
          possible bounds of decency, and to be regarded as
          atrocious, and utterly intolerable in a civilized community.
          Generally, the case is one in which the recitation of the
          facts to an average member of the community would
          arouse his resentment against the actor, and lead him to
          exclaim, “Outrageous!”

Id. at 928 n.1 (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).

     Here, the Complaint asserts that, without Appellant’s knowledge or

consent, Appellees distributed his drug treatment, medical, and psychiatric

records   and   photographs   of   him   while   naked,   including   one   post-

orchiectomy. The Complaint at 6-10, 24 ¶¶ 20-20A, 20C, 20F-G, 20I, 21,

25A-H, 87C & Ex. 1, Def., Michael McGovern, Esquire Supp. Answers to Pl.’s

Interrogs. in McGovern, 8/15/16, at ¶ 7, 8, 18 & Emails from Mr. Quinn to

                                     - 29 -
J-A10038-18


Mr. McGovern (Sept. 18, 2014, 3:42 & 3:44 p.m.).                    A factfinder could

conclude that any one of these allegations alone, if true, would be beyond

the bounds of decency; the factfinder could further find that, if taken in

combination, these allegations become atrocious and utterly intolerable.

See Gray, 147 A.3d at 928. Although the main body of the Complaint only

names one specific person to whom Appellees allegedly disclosed the

challenged materials, Mr. McGovern, the Complaint at 6-8, 24 ¶¶ 20A, 20D,

20F-M, 87A,24 a factfinder could still conclude that the distribution of these

highly sensitive records and intimate photographs even to just one

unauthorized individual would arise resentment in the factfinder. See Gray,

147 A.3d at 928.25            Accordingly, Appellees’ preliminary objection to

Appellant’s IIED claim is meritless, and, consequently, we reverse the trial

court’s   decision    sustaining     this      preliminary   objection   and   reinstate

Appellant’s IIED claim.26

____________________________________________


24Although, as noted above, if we take into account the names listed on the
documents attached to the Complaint as Exhibits 2 and 3, see N. Forests,
130 A.3d at 35, then Appellant also set forth that Appellees further disclosed
the challenged materials to Nurse Stunkard, Dr. Greenberg, and
Nurse Cattolico. The Complaint, Exs. 2-3.
25  Unlike claims of invasion of privacy based upon publicity given to private
life or placing another in a false light, IIED does not include the element of
“publicity.” Compare Strickland, 700 A.2d at 987, and Rush, 732 A.2d at
654, with Gray, 147 A.3d at 927.
26 In its memorandum that accompanied the orders at issue, the trial court
found that the Complaint presented insufficient factual allegations to support
(Footnote Continued Next Page)


                                            - 30 -
J-A10038-18


                                      *        *   *

      In conclusion, we reverse the trial court’s grant of demurrer as to the

counts of invasion of privacy based on intrusion upon seclusion, invasion of

privacy based upon public disclosure of private facts, invasion of privacy

based upon publicity placing another in a false light, and intentional infliction



(Footnote Continued) _______________________

the IIED count, because the Complaint “assert[ed] more than once that the
materials were sent to [Appellant’s] employer ‘anonymously[.]’” TCM at 11.
The trial court concluded that this anonymity meant that the Complaint
failed to “provide facts to support that [Appellees] distributed records[.]”
Id.

However, we fail to see any contradiction between the Complaint’s factual
averment that the materials were sent anonymously – i.e., without a
sender’s name attached – to Appellant’s employer and the factual averment
that Appellees were the senders who concealed their names. The Complaint
at 9 ¶¶ 24, 25A.

Additionally, we fail to see any significant incongruity between the
Complaint’s averments that Mr. Quinn personally wrote and mailed Exhibit 2,
the cover letter accompanying the mailing of Appellant’s deposition in
Glickman, or if he directed an agent or employee to write Exhibit 2 on his
behalf. Id. at ¶¶ 25B-D. Either way, Mr. Quinn was responsible for the
writing of Exhibit 2.

Moreover, when evaluating preliminary objections to a complaint, “the court
must accept as true all well-pleaded, material, and relevant facts alleged in
the complaint[.]” Heldring, 151 A.3d at 641. The complaint does not need
to provide proof of those allegations. See N. Forests, 130 A.3d at 35 (“The
impetus of our inquiry is to determine the legal sufficiency of the complaint
and whether the pleading would permit recovery if ultimately proven.”
(emphasis added) (citation omitted)); Discover Bank v. Stucka, 33 A.3d
82, 87 (Pa. Super. 2011) (citing Hess v. Fox Rothschild, LLP, 925 A.2d
798, 805–06 (Pa. Super. 2007)) (same). Thus, in a complaint, Appellant
does not yet need to present evidence to support his factual averments,
including whether Appellees had distributed the records. See TCM at 11.



                                          - 31 -
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of emotional distress, and we reinstate those claims.27 We affirm the trial

court’s grant of demurrer as to all other counts.

____________________________________________


27In a footnote at the end of his brief to this Court, Appellant “also requests
that the dismissal of the civil conspiracy claim be reversed, as that claim is
dependent on the other claims [he] is alleging were erroneously dismissed.”
Appellant’s Brief at 66 n.10. In his reply brief, Appellant states that he “is
not replying on the issue[] of . . . civil conspiracy as his opening brief more
than adequately covers and rebuts [Appellees’] arguments.” Appellant’s
Reply Brief at 19 n.5. Appellant presents no other argument about his civil
conspiracy cause of action.

Claims are deemed meritless where the assertions therein are not explained,
developed, or supported by the record factually or legally. In re Estate of
Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (“The argument portion of an
appellate brief must include a pertinent discussion of the particular point
raised along with discussion and citation of pertinent authorities.” (internal
citations and quotation marks omitted)); Lackner v. Glosser, 892 A.2d 21,
29-30 (Pa. Super. 2006) (explaining that an appellant’s arguments must
adhere to rules of appellate procedure, and “arguments which are not
appropriately developed are waived”; arguments not appropriately
developed include those where party has failed to cite any authority in
support of contention). As Appellant fails to cite any applicable law in
support of his contention or to develop any additional argument, his request
that the dismissal of the civil conspiracy claim be reversed does not merit
relief.

Assuming we were to accept Appellant’s two sentences as sufficient
argument to preserve this issue for our review, we would still find that this
challenge would fail. Appellant’s contention that his civil conspiracy claim
was “dependent on the other claims [he] is alleging were erroneously
dismissed,” Appellant’s Brief at 66 n.10, is inaccurate and misinterprets
Appellees’ preliminary objection. Appellant alleged separate facts for the
civil conspiracy count in the Complaint, independent from other causes of
action.   The Complaint at 33-34 ¶¶ 113-118. Additionally, Appellees’
preliminary objection was not predicated upon the other claims being
dismissed – i.e., it was not that, if all other claims are dismissed, civil
conspiracy must also be dismissed. Instead, Appellees alleged that the
Complaint failed to plead that they “act[ed] with a common purpose with
another person” and did “an unlawful act, or [did] a lawful act by unlawful
(Footnote Continued Next Page)


                                          - 32 -
J-A10038-18


      Order affirmed in part and reversed in part.

      President Judge Gantman joins this Memorandum.

      Judge McLaughlin files a Concurring and Dissenting Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/18




(Footnote Continued) _______________________

means or for an unlawful purpose.” Prelim. Objs. of Appellees to the
Complaint, 3/6/17, at 14-15 ¶¶ 69-70 (quoting Grose v. P&G Paper
Prods., 866 A.2d 437, 440-41 (Pa. Super. 2005)). The trial court agreed on
the first point and did not address the second. TCM at 13-14. Even if the
most liberal reading of Appellant’s brief would result in Appellant’s restored
causes of action – the three invasion of privacy counts and IIED – being
considered the required “unlawful acts,” etc., Appellant has still failed to
present any argument to this Court to counter the assertion in the
preliminary objections that Appellees “did not act with a common purpose
with another person.” Prelim. Objs. of Appellees to the Complaint, 3/6/17,
at 14-15 ¶¶ 69-70. This Court cannot consider any theories not presented
to it by the parties. See, e.g., Commonwealth v. Colavita, 993 A.2d 874,
891 (Pa. 2010); Safe Harbor Water Power Corp. v. Fajt, 876 A.2d 954,
966 n.13 (Pa. 2005). Therefore, without an additional theory presented to
this Court by Appellant, the reinstatement of some of Appellant’s causes of
action does not redeem Appellant’s claim for civil conspiracy.



                                         - 33 -