J-A26040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ERIE INSURANCE EXCHANGE, AS                :      IN THE SUPERIOR COURT OF
SUBROGEE AND ASSIGNEE OF                   :            PENNSYLVANIA
UNIVERSAL DEVELOPMENT                      :
MANAGEMENT, INC., T/D/B/A THE              :
MEADOWS APARTMENTS, UDE OF                 :
MITCHELL ROAD, LTD. AND SHERRI             :
LYNN WILSON                                :
                                           :
            v.                             :
                                           :
R. ERIC HALL AND R. E. HALL AND            :
ASSOCIATES, P.C.                           :
_______________________________            :
                                           :
SELECTIVE INSURANCE COMPANY OF             :
SOUTH CAROLINA                             :
                                           :
                  v.                       :
                                           :
R. ERIC HALL AND R. E. HALL AND            :
ASSOCIATES, P.C.                           :
                                           :
APPEAL OF: ERIE INSURANCE                  :
EXCHANGE                                   :           No. 370 WDA 2016

                   Appeal from the Order February 11, 2016
              in the Court of Common Pleas of Lawrence County,
                   Civil Division, No(s): 11342-07; 11359-07

BEFORE: BENDER, P.J.E., RANSOM and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED DECEMBER 28, 2016

      Erie Insurance Exchange (“Erie”) appeals from the Order granting the

Motion for Summary Judgment filed by R. Eric Hall and R. E. Hall and

Associates, P.C. (collectively “Hall”), arising out of a legal malpractice claim

against Hall for their representation of Erie’s insured, Universal Development

Management, Inc., t/d/b/a The Meadows Apartments, UDE of Mitchell Road,
J-A26040-16


Ltd. (collectively “UDE”), and Sherri Lynn Wilson (“Wilson”), in a federal

lawsuit filed by Basem Hussein (“Hussein”). We affirm.

      In September 1999, Hussein, an Egyptian nationalist who worked as a

radiologist, was renting an apartment at Meadow Ranch in Lawrence County.

UDE owned and operated Meadow Ranch, and Wilson acted as the manager

of the building.   On September 11, 2001, Hussein was working in New

Mexico and was not in his apartment.        On that date, Wilson and James

Caparoula, a maintenance man, entered Hussein’s apartment without

permission.   Wilson observed a desktop computer, various New York City

phonebooks, and a flight manual for a Boeing 737.           Wilson, suspecting

terrorist activity, contacted the local police as well as the Pennsylvania State

Police.   The police, after investigating Hussein’s apartment, contacted the

Federal Bureau of Investigation (“FBI”). The FBI conducted an investigation

into Hussein, after which he was cleared of any wrongdoing.                 The

investigation received extensive coverage from the local and national media.

      On December 19, 2001, Hussein filed an action against UDE and

Wilson in the United States District Court for the Western District of

Pennsylvania. Hussein alleged that UDE and Wilson violated the Civil Rights

Act, the Fair Housing Act, and asserted state law claims of invasion of

privacy1 and trespass.    As a result of Hussein’s action, UDE and Wilson

sought insurance coverage from Erie, Selective Insurance Company of South

1
  Hussein’s invasion of privacy claim was based upon two separate legal
theories―false light and intrusion upon seclusion.


                                  -2-
J-A26040-16


Carolina (“Selective”), and American International Specialty Lines Insurance

Company (“AISLIC”).     Ultimately, Hall was hired to represent UDE and

Wilson. Following a jury trial in September 2005, the jury found in favor of

UDE and Wilson on the Civil Rights Act count, the Fair Housing Act count,

and the trespass count. The jury found in favor of Hussein on the invasion

of privacy count, specifically finding that UDE and Wilson invaded Hussein’s

privacy2 and acted with “malice and reckless indifference.”        The jury

awarded Hussein compensatory and punitive damages of $2,450,000.

Following the jury verdict, UDE and Wilson filed a Motion requesting, inter

alia, that the trial court enter judgment as a matter of law pursuant to




2
  The jury did not specify the legal theory under which Hussein’s privacy was
invaded.


                                 -3-
J-A26040-16


Federal Rule of Civil Procedure 50,3 in favor of UDE and Wilson. Notably, the

trial court found this Motion waived based upon the failure to raise the

motion prior to the case going to the jury, as required under Rule 50. UDE

and Wilson filed a timely Notice of Appeal to the United States Court of

Appeals for the Third Circuit. Thereafter, the matter was settled for $2.25

million.4

        In September 2007, Erie filed the instant legal malpractice claim

against Hall, averring that Hall’s failure to make a proper Rule 50 motion

resulted in a waiver of the claims. Erie further argued that either the trial

court or the Third Circuit Court of Appeals would have dismissed the invasion

of privacy claim had it been preserved.         Following discovery, Hall filed a

3
    At the time of trial, Rule 50 stated the following, in relevant part:

        (a) Judgment as a Matter of Law.

        (1) If during a trial by jury a party has been fully heard on an
        issue and there is no legally sufficient evidentiary basis for a
        reasonable jury to find for that party on that issue, the court
        may determine the issue against that party and may grant a
        motion for judgment as a matter of law against that party with
        respect to a claim or defense that cannot under the controlling
        law be maintained or defeated without a favorable finding on
        that issue.

        (2) Motions for judgment as a matter of law may be made at
        any time before submission of the case to the jury. Such a
        motion shall specify the judgment sought and the law and the
        facts on which the moving party is entitled to the judgment.

Fed. R. Civ. P. 50.
4
    The three insurers contributed to the settlement as follows:
Erie―$983,333.33, Selective―$983,333.33, and AISLIC―$283,333.33.


                                     -4-
J-A26040-16


Motion for Summary Judgment.              Erie filed a Response and brief in

opposition.    The trial court held a hearing on the Motion, and thereafter,

granted Hall’s Motion for Summary Judgment. Erie filed a timely Notice of

Appeal.

      On appeal, Erie raises the following questions for our review:

      I.      Did the trial court err in entering summary judgment in
              favor [of] Hall because there was insufficient evidence in
              the underlying federal trial record to sustain the jury’s
              verdict on Hussein’s claim for invasion of privacy based on
              intrusion upon seclusion?

      II.     Did the trial court err in entering summary judgment in
              favor [of] Hall because there was insufficient evidence in
              the underlying federal trial record to sustain the jury’s
              verdict on Hussein’s claim for invasion of privacy based
              upon publicity placing a person in a false light?

      III.    Did the trial court err in finding that Wilson’s reports to law
              enforcement were not protected communications under the
              Noerr-Pennington [d]octrine because the “sham”
              exception has no application here where the record is
              devoid of evidence of falsehood or malicious intent?

Brief for Appellant at 9.

      Our standard of review where a trial court grants a motion for

summary judgment is as follows:

      A reviewing court may disturb the order of the trial court only
      where it is established that the court committed an error of law
      or abused its discretion. As with all questions of law, our review
      is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. Pa.R.C.P. 1035.2. The rule states that
      where there is no genuine issue of material fact and the moving
      party is entitled to relief as a matter of law, summary judgment


                                    -5-
J-A26040-16


     may be entered. Where the non-moving party bears the burden
     of proof on an issue, he may not merely rely on his pleadings or
     answers in order to survive summary judgment. Failure of a
     non[-]moving party to adduce sufficient evidence on an issue
     essential to his case and on which it bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Lastly, we will view the record in the light most
     favorable to the non-moving party, and all doubts as to the
     existence of a genuine issue of material fact must be resolved
     against the moving party.

Thompson v. Ginkel, 95 A.3d 900, 904 (Pa. Super. 2014) (citation

omitted).

     In order to establish a claim of legal malpractice, a plaintiff must

demonstrate the following:

     1) employment of the attorney or other basis for a duty; 2) the
     failure of the attorney to exercise ordinary skill and knowledge;
     and 3) that such negligence was the proximate cause of damage
     to the plaintiff. An essential element to this cause of action is
     proof of actual loss rather than a breach of a professional duty
     causing only nominal damages, speculative harm or threat of
     future harm. In essence, in order to be successful in a legal
     malpractice action in Pennsylvania, the plaintiff must prove that
     he had a viable cause of action against the party he wished to
     sue in the underlying case and that the attorney he hired was
     negligent in prosecuting or defending that underlying case.

Nelson v. Heslin, 806 A.2d 873, 876 (Pa. Super. 2002) (citations omitted).

     We will address Erie’s first two claims together because both involve

Hall’s purported negligence with regard to Hussein’s invasion of privacy

averments.    In its first claim, Erie contends that the trial court erred in

granting Hall’s Motion for Summary Judgment, as Hall’s negligence in failing

to properly raise the Rule 50 Motion in the underlying Hussein case was the

proximate cause of the harm to Erie. Brief for Appellant at 20. Erie argues


                                 -6-
J-A26040-16


that there was insufficient evidence to support Hussein’s invasion of privacy

claim based upon an intrusion of seclusion. Id. at 20, 21-25. Erie asserts

that while Wilson intentionally entered Hussein’s apartment, her behavior

would not be highly offensive to a reasonable person. Id. at 23, 25. Erie

claims that Wilson’s behavior was reasonable because the circumstances of

the entry must be considered in the context of the terrorist attacks on

September 11, 2001. Id. Erie further argues that Wilson’s actions were not

highly offensive where she did not trespass by entering the apartment, as

Hussein’s lease permitted the apartment owner to enter at all reasonable

times, and the entry lasted less than five minutes. Id. at 23-25. Erie also

contends      that    Wilson   observed   the     items,   which    were   not     of   an

embarrassing or private nature, in plain view. Id. at 24.

      In its second claim, Erie argues that Hall’s negligence in failing to raise

the Rule 50 Motion challenging the invasion of privacy―false light averment

was the proximate cause of harm to Erie. Id. at 26, 35. Erie asserts that

the   trial   court    erred   in   determining    that    the   Hussein   trial   record

demonstrated that “Wilson fabricated, exaggerated and/or lied about what

she observed in the apartment for the specific purpose of finding support for

her belief that Hussein was a terrorist.” Id. at 27 (citation omitted). Erie

points out that the uncontroverted testimony of the law enforcement officers

supported Wilson’s observations. Id. Erie claims that the fact that Wilson




                                       -7-
J-A26040-16


was mistaken about her observations does not require a finding that Wilson

knowingly reported falsehoods. Id. at 28.

      Erie additionally contends that the record does not establish, through

clear and convincing evidence, that Wilson acted recklessly or with actual

malice by reporting her observations to the police. Id. at 28, 30-31. Erie

argues that Wilson’s suggested personal animus toward Hussein does not

establish malice.   Id. at 31.     Erie further argues that Wilson did not

entertain serious doubts about her observations and concerns, and thus did

not act recklessly or with malice. Id. at 31-32.

      Erie also claims the trial record does not support a finding that Wilson

“publicized” the information about Hussein. Id. at 32, 34. Erie argues that

Wilson only reported her observations to the police, and did not speak with

the media or the community at large. Id. at 34. Erie contends that the trial

court erred in finding that it was reasonably foreseeable to Wilson that her

report to the police would be broadly published to the public.        Id.   Erie

asserts that a large number of people becoming aware of Wilson’s

communication to the police based upon subsequent media reports is not

sufficient to support a finding that Wilson publicized the information. Id. at

34-35.

      Here, the trial court set forth the relevant law, addressed Erie’s claims,

and determined that they are without merit.         See Trial Court Opinion,

2/11/16, at 14-28; see also id. at 6-8 (wherein the trial court quotes a



                                  -8-
J-A26040-16


summary of the evidence prepared by the federal trial judge in the

underlying Hussein case).    On appeal, Erie argues that such a Rule 50

motion would have been granted had the trial court considered Wilson’s

testimony at Hussein’s invasion of privacy trial in light of the context,

circumstances, and setting of the entry.

      However, in examining a Rule 50 motion, federal courts “must draw all

reasonable inferences in favor of the non[-]moving party, and it may not

make credibility determinations or weigh the evidence.”           Reeves v.

Sanderson Plumbing, 530 U.S. 133, 150 (2000); see also id. at 150-51

(stating that “[c]redibility determinations, the weighing of the evidence, and

the drawing of legitimate inferences from the facts are jury functions, not

those of a judge. … [A]lthough the court should review the record as a

whole, it must disregard all evidence favorable to the moving party that the

jury is not required to believe.”) (citation and quotation marks omitted);

CNH Am. LLC v. Kinze Mfg., Inc., 809 F. Supp. 2d 280, 285 (D. Del.

2011) (stating that in ruling on a Rule 50 motion, “the court must resolve all

conflicts of evidence in favor of the non-movant.”). Thus, the question for

federal courts “is not whether there is literally no evidence supporting the

party against whom the motion is directed[,] but whether there is evidence

upon which the jury could properly find a verdict for that party.” Goodman

v. Pennsylvania Tpk. Comm’n, 293 F.3d 655, 665 (3d Cir. 2002); see

also Reynolds v. Univ. of Pennsylvania, 684 F. Supp. 2d 621, 626 (E.D.



                                 -9-
J-A26040-16


Pa. 2010) (stating that a motion for judgment as a matter of law “should be

granted only if, viewing the evidence in the light most favorable to the

nonmovant and giving it the advantage of every fair and reasonable

inference,” a reasonable juror would have been required to accept the view

of the moving party).

      Here, the trial court, in ruling on a Rule 50 motion, would have been

free to disregard Wilson’s testimony and, further, could not favorably weigh

or give a reasonable inference as to UDE and Wilson’s evidence. Moreover,

in reviewing the evidence of record, in a light most favorable to Hussein,

there was sufficient evidence to support his invasion of privacy claims. See

Trial Court Opinion, 2/11/16, at 14-28. Based upon this finding, neither the

federal district court of the Third Circuit Court of Appeals would have granted

a motion for judgment as a matter of law.            Accordingly, the record

establishes that Hall’s failure to properly raise a Rule 50 motion caused no

harm or loss to Erie, and Erie’s first two claims are without merit.      See

Nelson, 806 A.2d at 876.

      In its third claim, Erie contends that Wilson’s reports to law

enforcement regarding observations of Hussein’s apartment were protected

by the Noerr–Pennington doctrine.5 Brief for Appellant at 36-37, 38-39.


5
  The Noerr–Pennington doctrine is based on the right to petition the
government under the First Amendment of the United States Constitution.
See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc.,
365 U.S. 127 (1961); United Mine Workers v. Pennington, 381 U.S. 657
(1965).


                                 - 10 -
J-A26040-16


Erie further argues that the “sham” exception to the Noerr–Pennington

doctrine6 has no application to the facts of this case. Id. Erie asserts that

Wilson   never   intentionally   communicated     false    information   to   law

enforcement officers or made the reports simply to harass Hussein. Id. at

37-38; see also id. at 37 (wherein Erie argues that the trial court erred in

finding that the Noerr–Pennington doctrine was inapplicable to this case

because Wilson intentionally made false statements).

      Initially, Hall argues that Erie waived this issue as the Noerr–

Pennington doctrine was never raised in Erie’s legal malpractice Complaint.

Brief for Appellee at 48. Our review confirms that Erie did not raise a claim

against Hall for failing to raise the Noerr–Pennington doctrine during

Hussein’s trial in its Complaint.    Notwithstanding, in its Response to Hall’s

Motion for Summary Judgment, Erie argued that Hall committed legal

malpractice for failing raise the Noerr–Pennington doctrine defense to

Hussein’s invasion of privacy – false light claim.         Thus, we decline to

conclude that Erie’s claim is waived on this basis.       Cf. Krentz v. Consol.

Rail Corp., 910 A.2d 20, 37 (Pa. 2006) (stating that arguments not raised



6
  The “sham” exception to the Noerr–Pennington doctrine “involves a
defendant whose activities are not genuinely aimed at procuring favorable
government action at all, not one who genuinely seeks to achieve his
governmental result, but does so through improper means.”            Penllyn
Greene Assocs., L.P. v. Clouser, 890 A.2d 424, 429 n.5 (Pa. Cmwlth.
2005) (citation omitted).         “Therefore, under the sham exception, an
individual will be liable if he use[s] the governmental process—as opposed to
the outcome of that process—as [a] ... weapon.” Id. (citation omitted).


                                    - 11 -
J-A26040-16


before the trial court in opposition to summary judgment cannot be raised

for first time on appeal).

      Nevertheless, in its appellate argument, Erie failed to argue that Hall

committed legal malpractice for failing to raise the Noerr–Pennington

doctrine defense at Hussein’s trial.       Instead, Erie merely argues that the

Noerr–Pennington doctrine protected Wilson’s reports to law enforcement.

In its Opinion, the trial court addressed Erie’s claim and determined that it is

without merit. See Trial Court Opinion, 2/11/16, at 28-29. We adopt the

sound reasoning the of the trial court and conclude that Erie’s claim is

without merit. See id.7

      Based upon the foregoing, the trial court properly granted summary

judgment in favor of Hall.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/28/2016




7
  To the extent that Erie sought to raise a legal malpractice claim against
Hall for failing to raise the Noerr–Pennington doctrine defense at Hussein’s
trial, we would conclude that such a claim is without merit. See Nelson,
806 A.2d at 876.


                                  - 12 -
                                                                                                                       Circulated 12/08/2016 03:01 PM




                                                                             OPINION
                          ~ono, P.J.                                                                                FebruarY, 1~, -20_i6:


                                        Before the Col:,lrt for dispo~ition                           is the Motion .for sunimarr
                          )µdg~ent.of             th~ Defendant R. Eric Hall and R.E. Hall arid
                               .   "·   .
                          A'.s$6¢iate·s, r-.c ... relative                  to the claims of each of the
                          pl_a:tn;ti·ff~-.         The above captioned cases are conso'l i dated as. ·t~ey,
                          ar rse out of the same operative facts,                                           and the argument~'. ~·re·
                          ide~ti~•l             as to each party relative                    to the issue of·whetHer                      an,~-
                          profess'ional negligence ~:f'.-~h~_n attorney, R. Eric H~Ji_;,
                      · tfe)·~i nafte r C'Ha11 ") was_ the .proxtmate cause of any har:m· to
                                                                                                                                    .
                          'Plai_n"t;:i ffs -as a matter of law.                    Ha11 was hi red as an at torney '.
                          by · the. Pl ai nti ff , nsurance -compan] es to represent .and defend
                          .Uriiver~al Development Management,                              Ihc.,             its affiliate     .u.o.E. of
                          .Mitchel            Road, Ltd .. , hereinafter
                                                           ~I    •   .,,•
                                                                                   referred to collectiveJy
                                                                                      j.      ... ,   :'-
                                                                                                                                    as·
                          "U. D.        E." and sherr-i · Lynn viilson, hereinafter                                ("Wilson;') i·n· il"
                          civii             action filed         by the Plaintiff            sasem Hussefn,· h·e-reihafter·
                          .("H.ussei rt"),          tn the. united States oi.stri ct court for the
                          western District              of Pennslvania.                    In that underlying case.,
                          Hussein prevailed                     on      the tort of i"nvasion of pr1vacy, while                           the
                          defendants prevailed on various other claims of Hussein.
                                        Plaintiffs'        claim of prcfessf onal negligence is· based on
                          the failure             of Hall to move for judgment as a matter ~flaw :at
                          ~he ·close of Plaintiffs' case in the underlying lawsuit
                          ;pursua~~ tp Federal Rule of civi~ Procedure SO(a).
                                                                     .                    .
        53AO
                                        T~·e maki"ng· of an FRCP SO(a) motion prior to the                                    ~·a.~i: gofng
     JUDICIAL
     oi$tfi1c'r.          to ·the J~ry was a prerequisite                         to seekt ng judgment as a mat-:t:er·

LAWRENC:ti c·o.,.it.TV
 -..:-~.NN$Vt.;VA NIA".
                0


                                                                                  2
                       of law after         the jury's                       verdict.                      H~ll did seek judgment as. -a
                       ·matter of law after                  tlie jur.y's verdict,                                         but the federal tda:T
                       Judg~
                           .
                                   found that the righi ... to seek judgment as 'a mat ter-of law,
                                                                        \'



                       on the invasion. of ·priva~.y'c:laim was waived because of the
                       failure         to file· tlie .. FRcP··sO(a) motioh at the c'lcse.of .the'.
                           •   ,                   •: •; •:. . • f.           J   •   t,;: . •.        ~ .;                         •            •'           I




                       Pl.atn.ti·f.fs' case that (was· 'suff'i ci ent l y spec if'i c.                                                  Tlius,
                                             .                 ,· ..
                       Pl ai,riti ffs· argue that                      Ha 11      's fai 1 u re· to make· a tf~e;l y
      .,:                                                                                     -       :·   ,j   •   t, ~


                       suff.i:cient FRCP 50(~).. ·mot-1.ori barred -the underlying defendants
                       from arguing that the verdict of the jury was ag~jnst the·
                                   .
                       wei'gh't of the evf dence or· contrary to law.                                                          Plainti'ff~ further
                       a:rg~e that Hussei·n had failed to offer. sliffi'c-ient evrdence to.
                     • make out a prima ·faci·e case for the· tort of i nvas ion ~>f p.rivacy·
                       and that Hall's            faiTure to make a timely sufficient                                                     ·FR<ZP SJ)(a)
                       mot1,on barred any oppqrtunity for post-trial                                                            or -aP,pellat~,
                       -relief.
                               Ha11 ' s Moti on for summary J uclgment i s based on the .
                       . a:~91.fmerit that' the evidence of record _i·n the und~rlying tri'al
                       was .. suffi~ient         to· support the jury's                                             verdict;     therefore,                  ~ven
                       if Hall had preserrted a. FRCP SO(a) motion, the trial                                                               judg~
                       would have been requf red to deny the motion.                                                             Further, on
                       appeal, the Third circuit                                  court of Appeals would not have;
                       reversed the jury's                   verdict.                        Defendant asserts                     that the ii~ue
                       of pr.oximate causat ion is a question of law for this court-tc
                                                                         .
                       det~r~ine based on the court· record of the unde~ljtog ~rial;.
                       that how the
                                  . federal
                                       .    trial court or third circuit ·would :nave.                                                                \,
                                                                                                                                                       e-,


       .53RD,
                       ru'led .af ter considering the tr+al court record is a quest ion of
    juoic::1,A_L'.
     DISTRIC:r         law for this cour-t to resolve arid not a jury question.
LAWR£NCE•,COVNT,V
  ~IINNSJ,L.Y~!f"' •
                                                                                                  3
                                        The court here finds that the determinative i~sue is
                       ~heth~r the trial                        record would have required that.the                                                             fediral
                       court -deny_             the motfon for judgment as a matter                                                               of       ']aw j>ursuant
                                                                                                                                                                     I        ,.
                       ·to FRti>' SO(a).(1) on the basis that there existed 'iegally .; ·
                                                                                                                                                       •                          I


                       sl/f.f:f'c:i ent evi d.enti ary basis for a reasonab le. jury to                                                                         f, f.19 for
                       the. P.lajnti.ff             H.ussain on the issue of. +nvas+on ·of pr-ivacyhad
                       the rule             .so ( a) ( 1)       mot.ion been made by                                                 Ha11     .


                                                                            HISTORY OF THE CASE
                                        aussatn    filed a· federal la~suit,                                                         hereinafter           ("Under.iying
                       f,\ctiori") .c1:gainst_u.o.E.                                  and Wilson as' the result of -,a~ti'o'.~.s of
                                    •                                                                                                                           •             I

                       Wilson             who   was the property manager of the apartment comple~ in
                       which· ·Hussein was a tenant and which was owned by. u.o,s ..                                                                                          Jn ·
                           Lawrencie· · county at the -t;i me of the seprember 11, 20·01 :ter;ro·ri·s_t
                       attacks··, hereinafter                              ("9/11 attacks").                                              on that date , w.i.l.son
                       entered aussatnvs apar tment +n.hi s .absence and, repor'ted H~ssai.n
                       to law
                           .
                              -enforcement                           as pcssess inq -i.tems which were susp'ic.i ous of ·)                                            '/


                       terrorist                act+v+ttes.                 As 1;h~_.-.r.e~_ult of Wilson's reporti~g· to
                           state and l ocal 1 aw: enforcement,                                                 Hussain was detained -and
                       .                                    .   .-    ,,     .;        - •   ·l.   ~ -·, . -   ..        ~   \   •   ~,   .                               •           .


                           trrter'roqated by the Feder',l
                                                  .     . -
                                                            ~ureau,.. of· tnv'esti·gation· and was
                                                                           -  \'    .                   \           (


                           terminated from his empJ oyment.                       1                            The .susp'i c ions of Hu's·sei n·'·s
                           involvement in the 9/11
                                               ." • :• •
                                                         at tacks. r~'~ei.
                                                                    • \'.•
                                                                           v. ed•
                                                                               •  .,
                                                                                     aiJ great deal
                                                                                                 •
                                                                                                    of.
                       pub l.t c+ty.              Hus~ei~ was also subpoenaed to attend a federal
                       "grand jury investi_ga.tion re·lative                                                            to his suspected, terror+st
                                                                                                                                                                    e ,




                           activity.             aowever , the i nvesti._ga~fon revealed no ·.evi°4~n.c~ of · .
                                .
       Slsio
                           te rr;Qri sf act ivi ty ~Y Hussein, aussefn was never ch~rg~d:'·wftli
     ,uo,c·,AL.
     DISTRICT



1.AWRE:NCE ,COUN'l'Y
   PllNN1iYl.VANIA
                                                                                                        4
                        .· . any criminal offense and the federal grand jury proceedings
                              against him were terminated.
                                    The complaint filed     in the underlying action against the
                              underlying defendants consisted of four counts:              Count!-
                              Violation of 42 u.s.c.      §1981; count II-Violations           of··the Fa:fr
                              ~o~sing. Act, 42
                                            .
                                               u.s.c.     §3604(b);       count III-Invasion     of Privacy
                              and "count IV-trespass.      Following a jury trial,        the jury·
                              returned verdicts     in favor of the defendants as to tounts I,. I~
                              and IV, but returned a verdict for Hussein as to count III-
                         ..   :invasion of Privacy.      The jury awarded compensatory dam~ges of·
                              ~$85.0,0()0 and punitive   damages of $1,600,000.         The jury

                               .
                              specifically
                                      .
                                           found that the underlying defendants "Invaded the.
                              .pr ivacy'' of Hussein; and, further, as to the issue of punitive
                              datn~ges, found that the underlying defendants "acted wi.th
                              mal +ce and reekless i ndi ffe re nee to the rights of [Huss_ei nl..~,.          _
                                    Following the verdict of the jury, Hall filed a ·FRCP SO(b)
                              motion and a motion to .alter     judgment pursuant to FRCP 59.             The
                              federal trial     judge denied the motions.         In denying. the.
                              motions, the federal trial judge found that,             although Hall had
                              made an oral FRCP SO(a) motion at the c'lose of Hussein• s case,
                              because the oral motion was not sufficiently             specific with·
                              regard to the issue of sufficiency of the evidence in support
                              of Hussein's    invasion of privacy claims, Hall could not raise.
                              such issues· for the first     time under FRCP SO(b), nor· could the
                              +ssus be raised in a motion to alter            or amend judgment pursuant
        S3i:to                to; FRCP 59(e).     However, the trial judge found that the is~ue
     Jifo'1 C"i,i~ i.
     DISTRICT                 of "whether the jury's      award of punitive. damages was·

L.l,WAl!NCE COVNTV
  .. 11:tiNi.~1.v~.;."
                                                                      5
                         tnappropriate,       i.e., whether remittitur should be granted» was
                         not waived and addressed the issue of the· sufficiency of the· .
                         .evidence to justify the award of punitive damages.                 The federai
                         tt{al judge concluded that viewing the facts in the lig~t mo~t
                            .
                         f~vorable to Hussein, the court could not conclude tha~ the
                         underlying_ defendants' .. misconduct was so lacking in
                         reprehensive ability that the jury's award of punitive da,:r:iages'.
                         should be disturbed."
                                  The following excerpts from the January 3, 2006 memorandum.
                         of the- federal trial·judge _contain a summary of the evidence
           ,·            .a~~d'·t~e. ·federal ·court's ana'lvs i s of the issue as· to sufficiency
                         .of: the· evidence relative .to the punitive damage cla:im: ·


                                         [H~_ssein] is_ a. r~_~iologist of Afabic descent and, .
                                . ··at.the relevant time, was a resident of the
                                  · Meadows Apai:tm.ents .. · ("the Meadows"). Defendant
                                      .sherr i Lynn Wi"l son ("Wilson") was the resident
                                      .manager of The Meadows. After the terrorist
                                   · ~~tacks 9ccurred, Wilson, with the assistance of
                                         The Meadows' maintenance man, entered [Hussein's]
                                        apartment and looked around at the contents and.
                                         conditions thereof. Wilson reported to the local.
                                         po·l ice that the items and cond'i ti oils that she ·fo'und
                                         in 'the apartment. were suspect and possibly
                                       .i ndt'cat i ve of terrorist acti.vi ty , For example,
                                         Wils9n reported that she found a white powder Qn
                                         countertops_ in the apartment. The white powder
                                         t~rned out to be dust. she also ·told_polite that
                                         she saw a flying manual for a commercial jet.
                                         airplane and .a computer disc jacket which depi·cted
                                         an airplan~ ~xploding i~ mid-air. The "flying
                                         manual' was an instruction for a computer game, and
                                         the_· compute r disc jacket, which a1 so related to a
                                         computer game, actually depicted a plane flying 'into
                                        ~ha.sunset.       Hussein introduced conside able          ·
                                         eviden·c·e at· trial rom which a 1ury could have
                                 .· .b~1ieved.that Wilson eit~er grossly exagfierat~d. or_ .
      0   SlRD                           s,m 1 11·ed.abo       the existen·ce and or c ara·cter of·
   JUDICIAi..                       · ·t e· items that she saw · n t . e .a "artment. The Federal
   DISTRICT-
            '
                                        .sureau of Investigation F.BI".) qurc 1¥ became
                                       ·~nvolved in an investigation: of [Hussein] and
LAWRENCE        COUNTY
 PENNSYC.:VAN·,;.·
                                                                   6
                           obtained a search warrant for his apartment, which
                          was immediately executed. At the time of the·
                           ter~ori s t attacks, . ~Hu~s~:i.~] was wor~i ng as a
                           rad1olog1st on assignment rn New Mexico on a
                           "Iocum tenens" basis.· The FBI located and
                           detai·ned [Hussein] fi, New. Mexico and questioned
                           him.regarding his knowledge of and involvement in
                           the terrorist: attacks.      The. ·matter rece ived.     .
                           considerable P.~blici·ty'in the local and nat lonal
                          ni~dic!.- after Sei>t.e~ber 11,· 2011.... [Hussein] was also-
                           SU?PO~naedto testjfy before a federal grand jury·
                           :impan·eled in the western district of Penn·syl.vania,
                         but the FBI. ·i·nve~tfgat,i on. of [Huss~i n] was
                           di:s'qmtinued., before his. grand jury·, appearance ~as
                           scheduleq to take place. [Hussein] was never
                        ·charged· with a·criminal offense, and the FBI
                           i.ilve·s1:i9ati on ultimately concluded that he had no
                           connect torr whatsoever to the terrorist activity.
                       · All of the +tems found by the FBI i_n· [Hussein's]
                         -apar'tme·nt' were lawful to possess and had some
                           i'ririocent exp.l anati.on. Nonethe 1 ess, [Hussein] was
                           ter.minated from his position in New Mexico.
                          Additionally, [underlying Defendants] declined.to
                          :renew [Husse1 n" s] two-month lease at- The Me·adows
                          Apa·r.tments and he was forced to relocate.
                           (Emphasis provided).

                         suffice it to say that there was ample evidence of
                         recor.d from which a jurY.· cou'ld nave, and di'd, infer
                         that the actions of Wilson· We re 'taken wi th malice .
                        or,    at the very least', reck'less- indifference to' the.
                         ri~hfs of [Hussein]. The jurr could have easily
                       "bal i'eved that w.ilson entered [Hussein's] apartment
                         under the pretext of changing furnace fi 1 ters i n ..
                        order to "snoop .arcund." Th.e Jury could have eas1.ly        -
                         believed that Wilson fabri cared, embe 11 i shed, or simply
                         lied about what she saw in [Hu·ssei n: s] apartment        ·
                         in order to paint a picture of him ·as a terrorist
                         to the po1 ice. The actions of wi 1 son, viewed in .
                         the light most favorable to [Hussein], h·ighly
                         support [Underlying Defendants'] content ion that
                         she acted exclusively out of concern for the heal eh
                         and safety of other residents.      ·The court also     ·
                         rejects [underlying Defendants'] contention that
                        Wilson could not have contemplated ...the complex
                         chain of events that transpired after- her entering
                         into [Hussein's] apartment." Ev~tything th~t
                         tr~nspired after Wilson reporte~·what she saw in
                         [Hussein's] apartment to the local police was more·
      S3A_D
                        or. less what a reasonable· person· might expect to·
    JUDiCIAL            occur under the ci rcumsrances; ·i.e., the response
    DISTRICT             Q.Y ;th~ law enforcement. community· was not hardly
                         surprising in light of the hor.ri·fic terrorist
l.AWAENCE C:O.UNT.V
   PENNSVi!VANI"   •
                                                        7
                                 attacks which had occurred earlier that day.


                                 The conduct at issue in this case occurred over a
                                 relatively short period of time, and in some
                                 respects might be considered an isolated incident.
                                 on the other hand, Wilson took multiple voluntary
                                 actions on the ·day in' question. The jury coul d
                                 h~ve found that there was no justifiable basis for
                                 ~ntry into [Hussein's] apartment that day, and
                                 that her·excuse that the furnace filters needed
                                 to be· changed was a mere ruse. The jury also could
                                 have believed that she lied to the police about
                                 what she saw and did so with malicet which set. in
                                 m9tion the investigation and detention of [Hussein].
                                 The underlying Defendants filed an appeal from the order
                      ·and. Mem~randum of the federal trial judge to the Third circuit
                      ~~µrt of Appeals.        However, the appeal was never heard as
                         .
                      ~laintiffs entered into a settlement with Hussein in the total
                      amount of $2,250,000, with. each Defendant and a third insurance        1

                      company contributing the following amounts:       'Ca)   Erie--
                      $983~333.33; (b) selective--$983,333.33; and (c) AISLIC--
                      $283,333.l3.
                                                    . here which the Court finds
                      Although not relevant to the issue
                      to be dispositive, Plaintiffs
                                                .   and . AISLIC signed a document
                             .                      .
                      entitled "Insure rs' Agreement" in which each insured reserved
                      their rights to bring claims against Hall as well as against
                      ~ach other.        Further, Plaintiffs·~rie and selective each signed
                      .a document titled uMutual Release" wherein Erie and selective
                      released each other and all of their respective agents,
                      ·,ncluding attorneys, from all liability in connection with the
                      underlying action.        Following payment of the settlement funds
       53no
     JUDiCIAt..       -~.,,~ the execution of the mutual release, the underlying
     DISTRICT
                      defendants executed assignments of the legal malpractice claim
'l:AWAENCE   COUNTY
  .riNN~vL"""'"
                                                           8
  ........




                          to Erie and selective, following which. the Plaintiffs filed the
                          wit~in actions seeking recovery of the amounts p~id in
                          sett l ement of the underlying action.      Plaintiffs' Complaint
                          :all~ges professional negligence on the basis that Hall failed·
                          ~o ~oye for dismissal of the invasion of privacy claims
                          put~.
                          ...
                                µant to FRCP
                                         .   SO(a) of the· Federal . Rules of civil Procedure,
                          causing waiver of the claim of insufficiency of the evide~ce
                          rei.~ti:ve to the +nvas ton of privacy claim.     Plaintiffs further
                          ·contend that had the FRCP SO(a) motion been made, the federal
                          Jr:i_'~1 j1:1dge would have been required to dismiss the invasion- of
                          pri v~cy cl aim, and if the tri a1 judge had not dismissed the
                          claim, the Third circuit would have reversed the trial judge
                          and .dismissed the claim on appeal.

                                                         DISCUSSION
                                 Defendant's Motion for summary Judgment_ asserts that .as a
                          matter of law Plaintiff cannot prove that any action of Hall
                          was the prox! mate cause of any loss to Pl ai nti ffs.    The
                          ·n~gligence asserted against Hall is his failure to make a
                          prQper FRCP SO(a) motion challenging the sufficiency of the
                          evidence as to any applicable theory of ·the Tort of Invasion 9f
                          Privacy.     In other words, Hall's argument is that, even if H.all.
                          had made a proper FRCP SO(a) motion on behalf of the underlyi"ng
                          Defendants, the motion would have been denied because as a
                          m~tter of law there existed sufficient evidence of record to
             53AO
                          g~-~e the case to the jury on two separate theories relative .to
       JUDiCIAL·
        o,s·TRtCT         ·tne   Tort of Invasion of Privacy ..

,LAWRENCE
  0
                 COUNTY
   PENN.ii'Y°l.,V~Ni~
                                                              9
                                                        FRCP SO(a) of the Federal Rules of Civil Procedure
                                              specifically provides as follows: ·
                                                  . (a) Jud9ment as a matter of law                     ·
                                                      .CJ;) Ifuring  a trial by jury a pa~ty has been
                            '        .                full¥ heard on .an issue and there ,s no legally
                                                   , sufficient evidentiary basis for a reasonable jtiry
                                ·,
                                                     .to find for that party on that +ssue, the cour t
                                                      may determine ·the issue against that party and may
                                                      grant a motion for judgment as ·a matter of law ...
                                                        The question of whether to grant a FRCP SO(a) motion ts a
                                              ques't ion of law for the trial judge to determine at the time .of ·
                                              t~ial, if the motion is made.          If made at trial, the trial
                                              Judge must determine whether or not to grant the- motion bas~~
                                                                                                                     .
              I
                  I
                      •                       :~ii:f9n 'the   trial record as· 'it existed at the time the motion ·;is
        ...                              '!   'made •     If, as a ma~t~r of l~w, a legally sufficient evideritl'ary-
                                              basis. existed for a. reasonab Ie jury" to find for Hussei.n, then. a
                                              ~RCP SO(a) motion WQµld have been fruitless, and would
                                                                                 .. ·:     .:



                                              .necessar+Iy       havebeen denied.    Thus, the failure to file a     FRCP
                                              ~9(a) motion could not be the proximate cause of any ~arm to               ..
                                              tn~·~nderlying Defendants as the motion could not have been
                                              granted.         on the other hand, if there cannot be found in.     the
                                              f.ederal trial record a legally sufficient evidentiary basis f~r
                                              a   reasonable jury to find for Hussein on the issue of Invasion
                                              of Privacy, the failure to make a FRCP 50 (a) motion, wi'th the·
                                              result of wavier of the right to subsequently raise ~he issue
                                              in a FRCP SO(b) motion, would constitute professional
                                              negligence that was the proximate cause of injury, as the right
                                              ·and opportunity to secure a dismissal            of the cause of action
          !13AO
                                              th~t resulted in a jury verdict was lost due to counsel's
      .JUOICIA'L
      DISTRICT·                               n·eg 1 i gence.

. :i!AWREOCC~             COUNTY
   • Pl!:NNS-VLVAtilA
                                                                                     10
                              It is clear to this court that the resolution of the issue
                      of proximate cause is a matter of law as the record that was
                      ~vailable to the federal trial judge is equally available to
                      thi's court.       The question of sufficiency of the evidence- does
                      .not involve any fact-finding process that could be reso'lved by
                      a jury or other fact-finder.             The court agrees with the
                     · .D~fendant's position that the issue is not a matter to be
                      resolved by expert testimony as the opinion of any expert; can
                      only ·be a substitute for the analysis which a reviewing judge
                      .must apply in determining sufficiency of the evidence.
                              In order to prevail on a claim of legal malpractice, the
                      ·plaintiff must establish that the defendant-attorney's
                      negllgence was a factual ·cause in causing damage to the.
                      plaintiff.        Kituskie v. corbman, 714 A.2d 1027, 1030 (Pa.
                      1998).        The plaintiff is required to prove actual loss, rather
                      than merely a beach of professional duty.             Kituskie, 714 A.2d
                      at 1030 .. The plaintiff's actual losses are measured by the
                      judgment the plaintiff lost in the underlying action.                Id. As
                      furthe~ stated in Rizzo v. Haines, 555 A.2d 58~ 68 (Pa. 1989),
                      "when it is alleged that an attorney has breached his
                      professional obligations to his client, an essential element of
                      the cause of action,       ..   '   . is proof of actual loss."   Plaintiff .
                      must prove that "but for" the conduct of the attorney-
                      ~efendant, plaintiff would have prevailed against the oppos,ng
                      party in the underlying case.             Kituskie v. Corbman, supra.;
       53RO.
                      Myers    v.    Seigle, 751 A.2d 1182, 1185 (Pa.Super. 2000).
    :1uo·1ci.AL
    DISTRICT



L:AWAENCE' COUNTY
  P8N·~:s·r~vA NIA
                                                                11
                             If Hall could not have prevailed on a FRCP SO(a) motion,
                       his failure to make the motion cannot be considered to be the
                       proxi~ate cause of any harm to Plaintiffs.      The Plaintiffs
                       herein do not dispute th is conclusion, but argue that at tlie
                       t r ia'l of the underlying case, Hussein failed to offer' evidence
                       adequate to make out a prima facie case of the tort of Invasion
                       of. Privacy; therefore, Hall's failure to make· an adequa~e FRGP
                       SO(a) motion barred the opportunity for post-trial or appellate
                       r·elief.   (Brief of Plaintiff Erie, p. 2).   The court here has
                       ,set. ,forth
                               .    its agreement
                                         .        with Hall's argument that the question
                       ~,:-s. one of law to be determined by the court, and there exists
                       :ample case law to support this conclusion.     Harsco corp. v.
                 · · · ·Kerkim, Stowell, Kondracki & Clarke. P.C.,    965 F.Supp. 580
                       .(M.D. Pa .. 1997), holding that the question of whether Plainti'ff'
                       would have prevailed on its defense was a question of law to Q·e·.
                       reviewed by the ~ourt to see if it would have been granted in
                       the underlying case; scar~muzza v. Sciolla, 2006 u.s.oist.Lexis
                       8264 (Ed.Pa. 2006), holding that since a motion for judgment as
                       a matter of law would clearly have been decided by the judge in
                       the underlying action, it was for the court in the legal
                       malpractice action to.determine if scaramuzzo would have been
                       relieved of individual liability had defendant filed the
                       appropriate post-trial motion; Gans v. Gray, 612 F.Supp. 608
                       (Ed.Pa. 1985), where the court granted summary judgment in
                       favor of the attorney.-defendant after reviewing the record in .
        53RO
                       the underJyi ng action and determi-ned as a matter of law that
      JUDICIAL
      DISTRICT         the trial record supported the jury's verdict.

. ·1.AWfU!NCE COUNTY
·    'P&:NNSVI.VANIA
                                                         ·12
                                  Plaintiffs     assert that summary j~dgment should be denied
                          because there are issues of fact,                     but fail    to identify   spedf:i.c
                          factua 1 issues.        Instead,           Pl ai nti ffs present an ar.gument ~h.at
                          the federal trial        record was insufficient                 to suppor-t a findi11g
                          of. +nvas ton of privacy. · Although the court agrees that -the
                          q4estion
                          .         of whether
                                        .      or not the federal trial.record was
                          sufficient or not to support a findi"ng of invasion of privacy
                          ~·y   the jury· is dispositive,              this is clearly       not a fact i'ssue
                          but rather a 1 e·ga 1 issue; therefore,                     it cannot be determined by
                          a, jury or any other fact f i nder .
                                 . si.milarly,   because the question is a matter of Jaw, expe.r~.
                                                     ;       .                   ..                       .
                          testimony is not p'erfnissible.                 Plai~tiffs       90 to great lengths
                                                         '
                          .to d,scuss the analysis presented by former Judge Bruce Kaufm~
                          'on the issue of the sufficiency                 of the, evidence; however', the.
                          Kaufman Opinion is merely doing the same thing that the
                          reviewing ~ourt must do, which is to review the federal trial
                          record and determine as a matter of law whether or not the
                          evidence was sufficient                  to support the jury's       verdict as to
                          invasion of privacy.                   Judge Kaufman has done nothing more in
                          his opinion than to review and analyze the evidence and
                          determine that it is insufficient                     evidence upon which a
                          reasonabl e jury could find that Wilson had knowledge of or
                          acted in reek 1 ess dis regard as to the fa 1 si .ty of that which she
                          prompt ly reported· to appropr i ate law enforcement authorities.
                          Tn~    analysis in conclusion of the expert is not a matter of
        ·SlRD             ·eviden~e but simply a substitute                    for the work of the judge.
      JUDtCiAL
      oisi:R,cT·          Where the issue is one of law, expert testimony is not

 t:... WRENCE COUNTV
•. ·P.ENN~V l,.V~~ .. ~
                                                                          13
                         a<:tmi'ssible in determining the quest ion of law.                            waters v. state
                          EmpTovees' Retirement Sd., 955 A.2d 466 (Pa.commw. 2008);
                                                                  ...
                          Browne. v. Commw. of Pennsylvania, 843 A.2d 42·9 (P.a.commw
                                                                                    ..
                          ~.O.Q4).;   41. valley   ~s~o~s-;     .y .-- sd.    of supervisors of Lonaon· Gro~e·
                        · :TWp •. , 8~·2. A. 2d S (Pa.·c;qm~w·. 2005).
                                                                                                                         I


                                 A 11 parties      ~g.re~ that the SefJli !'O 1 e case i n setti'r,g fo.'r.t~·
                         ·the standard of review · to be applied i ri dete rmi ni.ng iTJ.ot·i·oQs· fol'.' ·
                         judgment as a matter of law pursuant to Rule SO is . :Reeves v..
                          s~nderson Plumbing Products, Inc.,                       530   u.s.   133, 120 ·S.Ct; 2p97-
                          (2000).       Reeves set forth the following principles                         jn.'de·cid:f~g_
                          a motion for judgment; as a matter of· law:                           (1) The couru, ~ust
                          review all of the evidence in the record; (2) The court·must   . -
                          draw all reasonable inferences in favor of the non-inov.,:ng'.·party.
                          (here, Plaintiffs);            (3) The cour t may· not make cred1bility
                         ·determinations        or weig~ the evidence; and (4) Although the
                         ·court should revfew the record as a whole, it must di'sreqard
                          all evidence favora~le to the non-moving that the·jury                               ,~ .n9t
                          required to believe;            and that the court should ·give credence to'. ·            .
                          the evidence f avo ri ng the non-movant as we 11 as evi de.h ce
                         ·supporting the moving party that is uncontracted. and
                          unimpeathed,       at least to the extent that the evidence :cdme$
                          from disinterested         witnesses.              Reev~s v .. Sanderson ·Plumbing.
                          Products, Inc.,          530   u.s.   at 150-151.              ultimately,     the question
                          is not whether there is literally                       no evidence supporti-ng            ·the
                          unsuccessful party, but whether there is evidence upo·il, ·Whi'ch .a
                                                                                                                 .
     53RD
                          reasonable jury could properly found its verdict.                               Gomez:.\/.
   JUDICIAL
   OISTRl(:T    0         Allegheny Health servs~ I~t~, 71 F.3d 1079, 1083 (3rd. ci~~
            .       '
LAWRENCE'  COUNTY
 ~~N~!IV-~VANIA   .
                                                                             14
                           1995) citing Eshelman v. Agere =systems. Inc., 554 F.3d 426 (3rd
                           Cir. 2009).
                                Thus, in view of the foregoi.ng, the court must view the
                           eviden~e in the light most favor~ble to Hussein as the verdict.
                           w~nner and give Hussein the advantage of every fair ~nd
                           _reasonable inference, and further, must disregard all evidence
                           favoraple to the underlying oeferidants that the jury was not
                           ~equi'red to believe.
                                As noted by the federal trial court in its Memorandum
                           opim.on:
                                   Although judgment as a matter of law should be.
                                   g·ranted sp~r,.ngly, "federal .ccur ts do not fol low
                               · . the rule that a sci nti 11 a of evidence is enouqh.
                                   Th• qµestion is not whether th~re is liter-llY no
                                   evidence supporting the party against whom the
                                   motion.is directed but whether there is evidence
                                   upon which a jury could properly find a verdict
;·                                 for that par'ty ." Patzig v. o'Nei.lt 577 F.2d 841,
                                   846 (3rd .. Cir. 1978). "A jury verdi ct can be
                                   displaced 'b¥ judgment as a matter ·of law only if
                                   the record rs critically defic.ient of the minimum
                                   quantum of evidence from whfc.h' a jury might
                                   reasonably afford re1 i ef·." Wilson v.       ·
                                   Philadelphia Detention center1 986 F.Supp. 282,
                                   286 {E.D~Pa. 1997)(Federal t r i.a] court opinion of
                                   January 3, 2006,·p. 4).               .·
                                The federal trial court submitted the tort of Invasion of·
                           Privacy to the jury an9 charged the jury on two separat~
                           theories on Invasion of Privacy under Pennsylvania law; towit,
                           Intrusion Upon Seclusion and Publicly Placing Person in False
                           Light.
                                In Vogel v. W.T. Grant, 327 A.2d 133 (Pa. 1974), the·
                           .supreme court addressed the tort of Invasion of Privacy., and,
           53AD
         JUDICIAL:         ·citing §652 of the tentative draft of the Restatement second ·9f
         OISTRIC.T
                           "rort s , articulated four di sti net torts that constitute· Invasion
     LAWRENCE.COUNTY
      •f'ENNS,Y\;VANIA "
                                                             15
                     of Privacy: 1) Intrusion upon ·seclusion, 2) Appropriation of
                     ·Name or Likeness, 3) Publicity Given to Private Life, and 4)
                     Publicity Placing a Person in a False Light.         subsequently, in
                     ,~arr_i·s by Harris v. Easton Publi shi nq co.,   483 A. 2d 137
                     ·(Pa.supe·r. 1984), the superior Court referenced a f'ina'l' draft;
                     .of'. the {testatement 'second ·of Torts, §65.2 stating that   +t   m!)°~t
                     abjy defined the elements of Invasion of Privacy as the tort·
                     has. developed in Pennsylvania.
                           second· 6528 of the Restatement Second of Torts defines
                 .   · ":rn.trusion upon sec'lus ion" as follows:
                           one.who intentionally intrudes, physically or
                           otherwise, upon the solitude or seclusion of
                           another or his private affairs or concerns, is
                           subject to liabili.ty to the other for invasion of
                           his privacy, if the intrusion would be highly
                           offensive to a reasonable person.
                           comment b to the foregoing Restatement provision is
                     ·illustrative of .the type of activity that would create
                     liability:
                           b. The inv~sion may be by the physical intrusion
                              into a place in which the plaintiff has
                              secluded himself, as when the defendant forces
                              his way into the plaintiff's room in a horel
                              or insists over the plaintiff's objection in
                              entering his home. It may also be by the use
                              of the defendant's senses, with or without
                              mechanical aids, to oversee or overhear the
                              plaintiff's private affairs, as by looking into
                              his upstairs windows with binoculars or t_apping
                              his telephone wires. It may be by some other
                              form of investigation or examination into his
                              private concerns, as by opening his private
                              and personal mail, searching his safe or
                              wallet, examining his private bank account or
                              compelling ·him· by a forged ~ourt order to
                              permit an inspection of ht~ ~er~onal docu~ents..
       53sto
                              The intrusion· itself makes· the defendant
     JUDICIA_L                subject to liability, even though there is no.
     DISTRiCT                 publication or other use of ·any kind of the
                              photograph or information outlines.
LAWRENCE   COUNTY
  PENN~~ L.YANIA
                                                         16
:r
-.-.-   --




                                         There are essenti'ally         two elements   to Invasion of Privacy           a-


                                 .. by rntrus+on upon seclusion.           r+rst, defendant must have
                                  i)tfr.uded into a private place, or must have otherwise invaded .a .
                                 . ·priva~~ seclusion that the plaintiff           has strewn about his
                                  .person or affairs;       ·secondly, the interference       with the.
             ..           . ..    ,~\~·inti.ff's     seclusion .must be substantial       and would be highiy
                                  offensive        to the ordinary reasonable· per-son, Harris by· Harr~·s
                                   v .. · Easton Publishing co., supra.
                                         ·In O'Donnell v. united States of America, 891 F.2d 107.9
                                  °('3rd~ Cir. 1989), the Thi rd Circuit addressed what const+tutes
                                   an "rntent+onal Intrusion."            The· court stated that an
                                   "Intrusion       Upon sec'luston" ·claim. -i~volves a defendantwho does-
                                                              ~                                           ~
                                   not' believe that he has either the necessary personal
                                  'PEfrmission .or legal authority         to do the intrusive     act;. the
                                  · i.ntrusion must be intentional.          see wolfso'n v. Lewis, 924
                                  .F.S~pp.    1413 (Ed.Pa.     1996).
                                         Further,      in determining whether an invasion of priv~~Y,
                                   interest     would be-offensive       to an ordinary,    reasonable person,
                                   the factfinder       must consider all of the circumstances incl_~d,~-~
                                   the degree- of the intrusion,          the context, conduct and
                                   circumstances surrounding the intrusion;              the intruder's       ~o~ives
                                   and objectives,       as well as the setting        into which he ·i'.ntrudes
                                   and the expectations        of those whose privacy is f nvaded ;
                                   Wolfson v. Lewis, 924 F.Supp. at 1421.               Publication of the
                                   i.nformation discovered is not required to constitute .. the rort
       SSRO
     JUDICIAL                      but recovery is based upon the viewer's use of the private
     OISTRIC T        0




 UIWRENCE:· COUNTY
   i:·~NS~t.:VA    N1,;
                                                                            17
                  0
                         information obtained as the resuJt of the intrusion.            O'Donneli
                        v. united States of America, supra.
                              The federal trial court also instructed the jury           ~n   the
                        Invasion.
                           .      of Privacy Theory of Publicity Placing Person
                                                                            .   i)l F~ls~-..
                                                                                     •        I


                        ;t,;ght., al so a tort recognized by Pennsylvania Law.       Vogel ·Y·. · .'
                        ~.T. Grant co., supra; Harri~ by Harris v. Easton Pub1i~h~ng.
                        to·.·, supra.   section 652(e) Publicity Placing P~rson··j-n ~~lse·
                        .~Jght is qefi ned by the Restatement second of rorts as fo'llows;
                              9n~ who gives_publicity   to a matter concerning .
                              another that pl aces ·the other .be.fore the pub l 1 c 1 n
                              false light is subject to liability to the other
                              for invasion of his privacy, if
                                    (a) the false light in which the other                             I.
                                        was placed would be highly offensive
                                        to a reasonable person, and
                                    (b) the actor had knowledge of or acted
                                       . in reckless disregard to·the falsity
                                         of the publicized matter and the
                                         false light in which the other would
                                         be p l aced ,
                              The essence of this cause of action is that the defendant
                        cre~ted a false impression by knowingly or recklessly
                                                                                                            ,,.
                         publi'cizing selective pieces of information that tend ·to impl.Y
                       - 'falsehoods and placed the plaintiff in a false light.            The ·
                        .que~ti on is not whether or not ·the statements or i nformatiorr ·
                        publicized is _true or false but whether the publication was
                         susceptible to inferences cas~ing one in a false light.              Larson
                        v. Philadelphia Newspapers, 543 A.2d 1181 (Pa.super. 198~),
                        ~lloc. denied, 552 A.2d 251 (Pa. 1988), cert. d~ni~d, -489 ~-~-
                        1096, 109 s.ct.
                                    .   15~8,
                                           .  · 103 L.Ed. ."2d
                                                          ..   . 935 (1989}.   As the :~pp'er-·ior.
       5~"0    ·
     JUDICIA.L          tourt stated in Larson:
     DISTRICT
                              .... recovery in ~ort for=the ·disclosure of public,
i.A.WRltNCI!: COVNTV
. PENN!>VLV.AN!A
                                                            18
                                  as well as private, facts, even though they be
                                  true, is warranted to protect a claimant's right
                                  to be free from being placed in a false light and
                                  incurring the resultant mental suffering, shame or
                                 .humiliation -which may be caused by the
                                  discriminant publication of such facts.

                                  The falsity with which we are concerned arises
                                  from the inference derived from published    .
                                  statements, whetner those statements are actually,
                                  true or not.

                                    tn other wor.ds, ~espite the accuracy of the facts
                                   ·disseminated, discrete presentation.of information
                                  .in a fashion which renders the publications
                                 · sµsceptible to inferences casting one in a false
                                    light entitles the grievant to recompense for the
                                    wrong committed.
                          tarson, 54~      A.   2d at 1189.
                                  A_s noted in Curran v. children's Center of wyomi ng. county,,_
 r-
                          ~/s·   A. 2d 8   (Pa. super. 1990), the int~rests protected is the· · ·
                          ·111·terests of the individual and not being made to appear before
                     . ~ ·ihe public in an objectionable false light or false position~
                          see f Restatement Second of Torts §652(e), Co1T1T1ent (b).
                                  Hussein was a resident of The Meadows· Apartments from
                          September 1999 through October 2001.         on September 11, 20~1,
                          o·efendant was on a month-to-month 1 ease.       The rel ati onshrp ·
                          between Wilson and Hussein was described as a business
                          ·relati~nship as the result of the lease arrangem~nt in the
                          apartment complex where Wilson was the property manager.
                          Wilson described Hussein as arrogant, condescending, dtff+cu'lt:
                          to t~lk to and that he treated all women in such manner.
                          Wi-lson also described Hussein as "scary looking" and that lie
         53RO'
      _juoiCIAL           may: be a "terror i st".
       DISTR:IC;T·



LAWRENCE·COUNTY
 t:'&NNi.fi.,v~;.,,.' ·
                                                                19
                                  Wilson t~stified as to an incident wherein Hussein's
                          parents left a note on his door stating "Allah will deal wH:h
                          :you.     You have disappointed your family and Allah will make.
                                                                                      .. you           .
                          pay."
                                  Wilson further testified that approximately a month pr.ior
                          to: ~~e 911 attacks, Hussein had a Middle Eastern male visitor·
                          and woman visitor.      Wilson had seen no visitors prior to that
                          occasion.     Wilson also stated that she had to advise Hussein oh
                          several occasions that he was driving too fast.
                                  In January of 2001, Wilson entered Hussein's apartment
                          with· a maintenance man, John oeal, to inspect its condi..ti on.
                          ·Wilson testified that on that occasion she observed that the
                          tops of the bathroom countertops were swollen or peeling .and
                          were covered with a white powdery substance and that a red
                          powder was observed in the bathroom.         Wilson did not advise
                          Hussein to clean the apartment.
                                  on the morning of the 9/11 attacks, wi 1 son and mafrrtenance
                          man, .James Caparoula, entered Hussein's apartment.          Hussei·n was.
                          not present in the apartment.and had not been given notice-of
                          entry.·
                                  Wilson gave several difference reasons for the entry intq
                          the apartment.      She i ni t-i a11 y informed the state po 1 ice that
                          she entered the apartment to check on the well-being of Hussein
                          since she had .not seen him +n several days.         At trial, Wi.lsor,
                          testified that Caparoula was scheduled to change furnace
       S3RD
                          'filters that day and she accompanied him to inspect the ·
     JUDICIAL
     OIST~ICT             cleanliness. of the apartment.       Approximately six mon~hs· after.

,LAWllll:NCE. COUNT   v
   PENNSVl.VANIA
                                                              20
                          the incident, Wilson had Caparoula sign a notarized stateme~t
                          stating that he was in the apartment only to change furnace
                          filters.     However, at trial, Caparoula testified that·ne was·
                          .never· scheduled to change furnace filters and that the
                          .s;t~~ement that he signed at Wilson's direction was not true ,

                    ::
                                The evidence as to what Wilson did and could have. seerr ·or
                          did see once inside the apartment was conflicting.·
                                Wilson testified that she looked at items in the apar;t~ent
                          that ~ere lying around and never opened any cabinets, did not.
                          (pull 'out any video tapes or spread any i terns around for. 'the
                   -,
                          po'lice to have seen in plain view.        Wilson claimed to have seen· .
                          -a video tape that was ti 1;i ed .. How to Make a Bomb" on the s+de ·,
                          :t~a_t; was in a generi c box in the area of the computer.             Hussein
                          in. his test i mony disputed much of     w, l son's   testimony.     H·e
                          .stated that he did not leave things such· as· videos or any               co
                          .case iying around.      one could not have seen the titles to Vjq¢9' ·
                          tapes in plain view.       All of the video tapes that he. had were
                         · Jo.locked   cabinets.    The video tapes were not open to.just a
                          casua'l observer unless they opened the cabinets, wh.ich were,.
                          definitely closed.       Further, Hussein testified that'he had no
                          yideo entitled .. How to Make a Bomb" and none was ever. ·f<,ur,,d or
                          offered as evidence at trial.
                                Wilson testified as to having picked up an~ open~d a
                          computer jacket which she described as black and orange with ·a
                          ti 1 ted p 1 ane going th rough two buildings in flames.           WH son . ·
       53RO
                          told ·the police that the disc jacket had a picture of a
    JYD!~·~·L
     DISTRICT             ~passenger plane coming into a background in which the buildings

LAWRENCC. COUNTY
. ,PENNS.VLVANiA
                                                              21
                         were on fire.     Wilson in a separate statement described the
                         disc jacket as depicting an airplane exploding in midair in a
                         ba1,1 of fire.    No computer jacket matching any of the
                         descri·ptions given by Wilson were found.        There did exist +n
                         ~he: apartment a disc jacket with a plane with the sun in·the
                         background wh~ch was a Microsoft computer game and entered +nto
                         .ev+dence.   ·
                               Wilson picked up and opened a flight manual titled ~'How to
                     '   Fly a Boeing 737 ...    she testified that it opened to an
                         ·;~s"t"ruction page describing how to take off as though it 'had :
                         :been op~ned to that page many times.        This statement.was
                         d+sputed by. Hussein who referred to the statement of havinq
                         op~n~d to a particular page many times as being "ridiculous"
                         and that the "flight manual" was an instru·ction manual for a
                         ."<;:Qinpu.ter game·called "Microsoft Fligt:,t simulator."
                               'Wilson went into the bathroom, Hussein's bedroom and sp~r~·
                         r-oom of the residence.     she reported seeing New York ci~Y
                         ·phonebooks.     Hussein testified that the phonebooks were in-
                         boxes in his spare room and could only have been discovered. if
                         someone actually "went through that stuff."         Hussein aiso _           ,.
                         explained that he had previously resided in New York City. which
                         was why he had the phonebooks.
                               Wilson went to the Pennsylvania state Police barracks -in
                         New castle, Pennsylvania and .informed Pennsylvania State
                         troopers that the jt~ms in the apartment were suspicious and
        ·   53RO.
                         .Possibly indicative of terrorist- activity.       In· general, Wi.ls~·ri"
        ,u"o·1c1AL
• o,s;:R,c:r . · told the state po'l ice about the           .above   described items ·that she

I..AWR£NC£;COUNTY
    !':~N_NSYLVANIA
   I'                                                       22
                          claims to have viewed,              the· picture    o f an exploding airplane,.
                          and that        Hussein had expensive computer            equipment     and that she
                          had seen burns or acid around sink and the bathrooms                         were eaten
                          :~p and burned or .corroded by acid.                  she also referenced: a
                          Yff~pped package wf th Arabic letteri;ng,                having prev ious ly viewed:
                          'a white powdery substance               which she believed     was ".dr:ugs or ·
                          somethi    ns" and        that   she suspected ·Hussein ·of being a terror+st.
                                  Wilson left         the state     police   barracks   with a belief        that
                          the state        police     were "blowing     her of'f" r.esulting      in .her then
               . .~ .
                          gqing     to    the Neshannock       Police Department.        As the result           of
                          her efforts,        the Federal Bureau of Investigation                became
                        · · +nvotved and interviewed              Wilson at the New castle        State Police·
                          barracks.         The FBI called         a hazardous material        response, urrit        to
                          the scene because of the report                of possible     bomb activi~y.
                                  The FBI conducted a search of Hussein's                 apartment.        Th~
                          -, FBI then located         and detained     Hussein    in New Mexico where he·
                         ..w~s quest ioned during the evening hours of 9/11.                      On september:
                        · 12:. 2001 Hussein was handcuffed and taken to FBI Headquarte.r.s· .·
                          ·wp·ere he was fingerprinted              and samples    of his hair were .taken.
                                  The FBI in New Mexico issued a statement                 on September :13 s:
                          :200'1 that      Hussein had done nothing wrong.              The Pi t tsburqh .F.BI
                          investigation        was discontinued.             Hussein had been subpoenaed to
                          testify        before a federal         grand jury in the Federal olstr:kt
                          c~urt for the western District                of Pennsylvania,       which
                          proceeding was then cancelled                before Hussein had· to testi'fy:

       !13AO
                                  The FBI concluded that             the "white powder" reported            by
    .JUDICIAL
      DISTRICT            Wilson as drugs was household dust;                   no videotape     entitl~d        "How

:L.AWRENCE ·c:ouNT.V
 . :t'ENNSVL.VANIA.
                                                                        23
                             to Make a Bomb" was found nor any evidence of bomb making.
                             Flight-simulator discs were found but none depicting an
                             e~pJ_odi ng p 1 ane or bui 1 dings on fire.   A 11   of the computer
                             games found were referred to as being "perfectly legal.            The
                            · .orianqe-ye 11 owi sh substance near the toi 1 et. was dried urine and
                             -no -chemical burns were found.
                                   Iri considering the foregoing evidence, and foll«:>wing the
                             requ+red standard of reso 1 vi ng a 11 conflicting evi dence in
                             favor of Hussein and against the Underlying oefenda~ts, and .tn
                             1giVing Hussein the benefit of all reasonable tnfetences and in··
                            · .fur·iher recognizing that a jury was free to resolve all
                             cr-edtb'i l i ty issues against Wilson and in favor of Husse:in,       ·t6~
                             court finds that the evidence in the federal trial record·was
                             suffici-ent to sustain the jury's verdict on Invasion of privacy:
                             as to both theories submitted to the jury.
·'                                 Relative to the issue of Intrusion of seclusion, ·the jury-
                             could have easily found from the evidence that the initial·
                             · ·ent.ry tnto Hussein's was gained by the pretext of changing the
                             furnace filters, when in actuality the purpose of .entry was to
                             ·examine the contents of the apartment.        The jury could have
                             inferred that once Wilson gained entry under a false pretext,
                             she used that opportunity to examine Hussein's personal
                             belongings, those in plain view and those not in plain view:, . . .
                             rnus , the issue is not whether wi 1 son t respassed , but whether
                             ·or not she used her ability to gain access to the_apartmeQt ·for
               SlRD
                             purposes of intruding into Hussein's personal affairs.
        . Jui:,.ic,AL
      . ·DISTRICT.

           I
     LAWIU!NCE: COUNTY
        . .    -* -· r ••
       PE:Nf'!SV,LVANIII,
                                                                 24
                                 Further, there existed sufficient             evidence for the jury         tP
                           find that Wilson thrust          herself into private and personal
                           ;matters of Hussein under circumstances where she was
                            s~pstantially certain that she had no.privilege  or permis~io~·
                           .     .
                           .to intrude.   Wilson testified to have seen New York ci.ty
                           phonebooks:      however, Hussein testified         that th~ phonebooks, wer'e .
                          . .corrta'ined in closed boxes in the spare room, and she wou.1~ have
                           'had to enter the room and open the boxes and ex~mi ne the·
                           con tents thereof in order to .. ob·~~rv.~ the phonebooks.            By
                                                        .         .
                           .Wil.sori's own admission, she p ickedup and opened a "flying
                           manual ",   a computer jacket .and looked at video boxes. and 'Video
                           .cases which she could have: on'ly have seen, according to ·the·
                                                                           I

                           te~iimohy of Hussein,       by opening cabinets and puliing .out.,
                           tape ·since titles     to the vi.deos were not visible         in· plain v·iew._.;
                           ,:here ·.was tes~imony that the videos that were looked at ~Y
                           W'ils_OIJ were in a video stand, which was closed and Jocked,
                           :wilson herself admitted to going into the bathroom, the bedroom
                           ~~~ the spare room.        The jury could reasonably fi'nd tha't
     ·,·
                           entering these rooms and examining contents thereof under the
                           ci rcumstances     as to these i terns. as i den ti fi ed by Huss~i ~ .had ·.
                           nothing to do with changing furnace filters              but ·to +ntrude .upon. '.
                           fiussein's privacy.       one cannot imagine an area m~r~ personal
                           .and secluded to oneself and more private that.onevs resj.dence'
                           and the private affairs          that are contained therein..       The Ju_1:·y
                           ·was justified     from the record in finding that Wilson intruded•
           !J3RD_
                           into that private space of Hussein.
    JUDICIAL
  · ;i:i'i~TR ,c=r·

            .
LAWRENCE 'COUNTY
                      '
 ,f'E~t«SVI.V4'HiA
                                                                      25
              ---           .....   -   ---   -----··   '"·-··- ...   "----···-




                                    The jury was also free to conclude that Wilson acted
                       intentionally because of a personal animus that she had
                       :reia~ive to Hussein as she believed him to be a terrorist                    and
                 · "· ·that: her· purpose in entering his apartment was to examine hj:s .
                       pe'rsona] affairs to find support for her belief that he .was .a
                       terrorist.              There is ample evidence· that Wilson was· distr4stfl.i'l
                       of Hussein- as she viewed him as arrogant, condescendinq and
                       '.li.~friendly; that Hussein's parents left a note that Al'iah·wouJd
                       make_ him pay and that a package with Arabic writing was
                       d~~ivered to Hussein.
                                                                                                               .,
                                    : Additionally, the jury was free to conclude from the
                       evi dance ·that wil son knew or acted in reek less i ridi .f.ference--·Qr
                       .disregard to the truth of what she observed by fi ndi_hg that·
                       _Wilson fabricated, exaggerated and/or lied about what she'
                       'observed in order to support her belief that he was a.
                       t~rrorist.
                        I
                                               such inferences can be made from the evidence 'that
                                                                                            '    •         •




                       .the: w~ite powder which Wilson suggested to be drugs or An~~rax
                       was household dust; that she lied about any evidenc~ of b~mb
                       ma.king including any video entitled "How to. Make a Borrib~'; that
                       she referred to a "flying manual" which in reali:ty was a
                       Microsoft flight simulator game -and c'lear ly marked .as such;
                       that there in fact existed no computer di SC jacket that_ showed ·
                       an airplane and buildings on fire and that the existence of the:
                       same was contrived by her; that what Wilson identified·as                     red
                       powder was simple drj~d urine; ·and that any computer                    gam¢s ~n~
       53RO            tape~ that were in the apartment were perfectly legal and ·
    JUDICIAi..
    DISTRICT'          o~servable as such.

:L!-AWRENCE, COUNTY•
    ;PENNSV.1.VANIA
                                                                                  26
                                             Wilson's actions triggered a federal investigation        ~hat
               , ..
                                    resulted     in Hussein being detained, questioned,       handcuffed,    .a~4
                                    further     resulted   in Hussein losing his employment and bei'ng the
                                    subject of embarrassi ng nat+orwi de media coverage with. person
    I      •

                                    hi.imj l°iati on.   Thus, ·f.rom a 11 the foregoing, the jury coul d·
                                    easily conclude that the intent1onal intrusion          was subsrant ial
                                                         '.,
                                    ~ii'd highly· offensi\ie to a reasonable person.

                            .   '
                                             There al.so existed sufficient    evidence in the federal
                                    'trial   .record to support the theory of False Light Invasion of
                                . :Pr'i'vacy ·given to the jury.       The evidence in the record must be
                                    1suf_f{~t~nt to have allowed the jury to conclude that. Wilson
                 .,.                gave_.publicity      to a matter concerning Hussein that placed him
                                    before the public in a false light which would be highly
                                    offensive to _a reasonable person.         The jury can conclude fr.om:
                                    the evidence that Wilson .communicated with law enforcement-and
                                    made statements of what she claimed to have seen in Hus~etn's:·
                                    apartment, and that virtually        all of what she claimed to have
                                    seen was false.        The "false 'l iqht;" in which Hussein was             .·
                                                                                                       -
                                    portrayed was that of being a terrorist.           Wilson set in motto:~
                                                                                                       "I   .•



                                    through he·r publicity      a chain o.f events that por trayed Hu~s.ei'_n
                                    in the national media as a possible terrorist.           As to· the
                                    requirement that wi 1 son had knowledge of or reckless reqard: ·to .
                                                                                                . .
                                    the falsity of the publicized matter and of the false lfght :tn
                                    which Hussein would be placed, it has already been discussed
                                    that allowable inferences are that Wilson fabri'cated,
        93AD
                                    ,exagger~ted and/or lied about what she-observed in the·
    JUDICIAi.
   -DISTRICT           •.



LAWRENCE        ·coUNTV
 P.CNNSYLVA_NIA
                                                                          27
