Erie Insurance Exchange v. Hall, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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.

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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.

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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.

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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

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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

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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

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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

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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.

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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).

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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).

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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.

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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

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"' •

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

.· . 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~.;."

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·,;.·

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" •

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"""'"

........

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~

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

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

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~~ .. ~

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 .

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 "

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

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

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~;.,,.' ·

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

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

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.

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,

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

--- ..... - --- -----·· '"·-··- ... "----···-

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

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