J

- S02044

- 20

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

CYNTHIA SHANER

,

Appellant

v.

UPMC SUSQUEHANNA AND GERILYN

KOONTZ :

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 922 MDA 2019

Appeal from the Order Entered May 22, 2019

i n the Court of Common Pleas of Lycoming County

Civil Division at No(s): 18

- 1363

BEFORE: BENDER, P.J.E., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED MARCH 24, 2020

Cynthia Shaner ( “ Shaner ” ) appeals from the Order sustaining the

Preliminary O bjections of UPMC Susquehanna ( “ UPMC ” ) and Gerilyn Koontz

( “ Koontz ” ) (collectively, “ the Defendants ” ) and dismissing Shaner ’ s

Complaint. We affirm.

The trial court summarized the relevant history underlying the instant

appeal as follows:

Plaintiff [Shaner] contends that Defendant [Koontz],

employed as a registered nurse at [UPMC] , had accessed

[Shaner ’ s] medical records when [Shaner] was admitted

overnight with complaints of chest pain. [Shaner] alleged that

[Koontz] had invaded [Shaner ’ s] priva cy, and that a Facebook

post by [Koontz

, ] which read[,] “ Getting older is such an

adventure. Like is this chest pain indigestion or a heart attack?

Can ’ t wait to see if I ’ m alive tomorrow

, ” amounted to unlawful

publication of [Shaner ’ s] personal and private health information.J

- S02044

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- 2

- [] Shaner filed her [C]omplaint [ 1 ] on or about September 18,

2018, to which [Koontz ] filed Preliminary Objections on October

9, 2018. [The trial court] issued an Opinion and Order sustaining

[Koontz ’ s] Preliminary Objections and dismissing all counts of

[Shaner ’ s] Complaint on December 12, 2018. A Motion to

Reconsider and Motion to Amend Complaint [were] filed on

December 24, 2018; said [M]otions were denied on Fe bruary 4,

2019, with leave to file an Amended Complaint. An Amended

Complaint was filed on February 5, 2019. [] Koontz filed

Preliminary Objections to [Shaner ’ s] Amended Complaint on

February 15, 2019. [The trial court] then sustained [] Koontz ’ s

Preliminary Objections and dismissed [] Shaner ’ s Amended

Complaint in its entirety on May 14 , 2019. [ 2 ] [Shaner] filed her

Notice of Appeal on June 3, 2019, and filed her [C]oncise

[S]tatement of matters complaint of on appeal on July 9, 2019 ....

Trial Cou rt Opinion, 8/8/19, at 1

- 2 (unnumbered) (footnote s added)

.

Shaner presents the following issues for our review:

1. Whether the [trial] court erred in finding that [Shaner] did not

allege any disclosure by her physician, or pa rticularly cite 42

Pa.C.S.[ A. §] 5929[?]

2. Whether the [trial] court erred in finding that the disclosure of

[Shaner ’ s] medical condition is limited to sexually transmitted

diseases[?]

3. Whether the [trial] court erred in finding that a nurse who was

not involved in [Shaner ’ s] care, who looked at [Shaner ’ s] medical

records and posted about her hospital stay on Facebook, which

was seen and forwarded to [Shaner] by friends, did not satisfy the

publicity standard for invasion of privacy[?]

4. Whether the trial court erred in fin ding that a Facebook post

by [] Koontz about [Shaner ’ s] medical stay did not satisfy the

element of publication of private facts[?]

_________________ __________ ______ ____ _______

1 Shaner ’ s Complaint averred causes of action for invasion of privacy against

UPMC and Koontz.

2 The trial court’s Order, although dated May 14, 2019, was not filed until May

22, 2019.J

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- 3

-

Brief for Appellant at 5

- 6. In the Argument section of her appellate brief,

however, Shaner presents the following two claims: “ Invasion of Privacy ” and

“ Breach of Physician

- Patient Confidentiality ”

. See id. at 14, 19. We will

accordingly limit our discussion to those issues addressed in Shaner’s brief

.

See Pa.R.A.P. 2119(a) (mandating that a n appellant must develop an

argument with citation to and analysis of relevant legal authority ), 2116

(setting forth the requirements for the statement of questions involved); see

also Commonwealth v. Love , 896 A.2d 1276, 1287 (Pa. Super. 2006)

(stating that a n appellate court is required to deem abandoned those issues

which have been identified on appeal but are unsupported by argument in the

brief).

Our Supreme Court has set forth the applicable standard of review as

follows:

On appeal, we “ exercise de novo review of a lower tr ibunal ’ s

order sustaining preliminary objections in the nature of a

demurrer. ” William Penn Sch. Dist. v. Pa. Dep ’ t of Educ.

, ... 170 A.3d 414, 434 (Pa. 2017). A demurrer “ tests the legal

sufficiency of the complaint. ” Ins. Adjustment Bureau [

, Inc.

v. Allstate Ins. Co. ]

, 905 A.2d [462,] 468 [(Pa. 2006)]. “ For the

purpose of evaluating the legal sufficiency of the challenged

pleading, the court must accept as true all well

- pleaded, material,

and relevant facts alleged in the complaint and every inferenc e

that is fairly deducible from those facts. ” Mazur v. Trinity Area

Sch. Dist.

, ... 961 A.2d 96, 101 (Pa. 2008).

The “ question presented by the demurrer is whether, on the

facts averred, the law says with certainty that no recovery is

possible. Where a doubt exists as to whether a demurrer should

be sustained, this doubt should be resolved in favor of overruling

it. ” Bilt

- Rite Contractors, Inc. v. The Architectural Studio

,J

- S02044

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- 4

-

... 866 A.2d 270, 274 (Pa. 2005) (quoting MacElree v. Phila.

Newspapers, Inc.

, ... 67 4 A.2d 1050, 1056 (Pa. 1996)).

Commonwealth v. UPMC

, 208 A.3d 898, 908

- 09 (Pa. 2019).

Shaner first claims that the trial court improperly sustained the

Defendants’ Preliminary O bjections and dismissed Shaner ’ s cause of action

against the Defendants for invasion of privacy

- intrusion upon seclusion . Brief

for Appellant at 15. According to Shaner, Koontz was working in the

Emergency Room at UPMC, but had no contact with Shaner, “ except what

[Koontz] could presumably discern from medical information on he r

computer. ” Id. at 16. Shaner contends that Koontz improperly accessed

Shaner ’ s private medical information from her computer, and then posted

about it on Facebook. Id. Shaner acknowle d ges that Koontz did not disclose

Shaner ’ s name in the post, but “ u sed the exact symptoms reported by

[Shaner ’ s] medical records that day. ” Id. at 17. Thus, Shaner asserts

, Koontz

“ intruded into the private affairs of [Shaner] by accessing her private medical

records. ” Id. Further, Shaner asserts that Koontz’s Faceboo k post was “ liked ”

by 39 people; Shaner’s personal medical issues were made public; a

reasonable person would be highly offended by the disclosure; and the act

caused Shaner humiliation in the community, “ as others came up to talk to

[Shaner] about the Fac ebook post and her medical issues. ” Id. at 19. In

support, Shaner relies upon this Court ’ s decisions in Haddad v. Gopal , 787

A.2d 975 (Pa. Super. 2001), and Chicarella v. Passant , 494 A.2d 1109 (Pa.

Super. 1985).J

- S02044

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- 5

-

To assert a claim for invasion of privacy

— intrusion upon seclusion in

Pennsylvania,

a plaintiff must aver that there was an intentional intrusion on the

seclusion of their private concerns [,] which was substantial and

highly offensive to a reasonable person, and aver sufficient facts

to es tablish that the information disclosed would have caused

mental suffering, shame or humiliation to a person of ordinary

sensibilities.

Pro Golf Mfg. v. Tribune Review Newspaper Co.

, 809 A.2d 243, 247 (Pa.

Super. 2002 ); see also Restatement (Second) of Torts § 652B, Comment C

(providing that “ [o]ne who intentionally intrudes, physically or otherwise,

upon the solitude or seclusion of another in his private affairs or concerns, is

subject to liability to the other for invasion of h is privacy, if the intrusion would

be highly offensive to a reasonable person. ” ).

As explained in the Pennsylvania Standard Jury Instructions, “ [c]onduct

that is highly offensive to a reasonable person is conduct that a reasonable

person, in similar circumstances, would find very objectionable or that a

reasonable person in similar circumstances could be expected to take with

serious offense. ” Pa. SSJI (Civ. 13.12).

In its Opinion, the trial court addressed Shaner ’ s claim and concluded

that it lacks merit , reasoning as follows:

In order for [] Shaner’s claims of intrusion to be sufficient[,] there

must be specific averments that [] Koontz [’ s] alleged intrusion

was so egregio us that it caused “mental suffering, shame or

humiliation to a person of ordinary sensibilities,” as held by the

Court in Chicarella [, 494 A.2d at 1114.] In Chicarella , the

[Superior] C ourt asserted that the disclosure of a specific medical

diagnosis was insufficient to allege a substantial and highlyJ

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- 6

-

offensive intrusion upon seclusion. In addressing allegations

sound ing in intrusion upon seclusion, the Chicarella Court stated

that “the brief description of [the] appellant’s medical treatment

cannot be d eemed a substantial intrusion.” Id. at [1114]. In the

matter at bar, [the trial court] does not believe that [] Shaner has

alleged that the intrusion would have been highly offensive to a

reasonable person, nor that it was substantial enough for a

reason able person to strongly object. DeAngelo v. Fortney , 515

A.2d 594, 595 (Pa. Super. 1986).

Trial Court Opinion, 8/8/19, at 2 (unnumbered). We agree with the sound

reasoning of the trial court, as set forth above, and affirm on this basis as to

Shaner ’ s first claim. 3 See id

.

I n her next claim, Shaner asserts that the trial court improperly

dismissed her cause of action for breach of physician

- patient confidentiality.

See Brief for Appellant at 19. Shaner contends that her “ medical information

was posted on Facebook for all to see. ” Id. at 21. According to Shaner,

“ Koontz accessed [Shaner ’ s] medical treatment for that day and tried to

humiliate [Shaner] by making fun of her conditions. ” Id. Shaner asserts that

anyone at UPMC could access her med ical information; she did not consent to

the release of her information; Koontz intentionally looked up Shaner ’ s

medical records; and Koontz “ talked about what she saw on Facebook. ” Id.

_________________ __________ ______ ____ _______

3 In affirming, we particularly note that Koontz’s Facebook post did not identify

Shaner by name, or indicate that i t pertained to any UPMC patient. Further,

the Facebook post did not disclose that Shaner, or any patient, had contracted

an illness or suffered from a condition such that the post would be highly

offensive to a reasonable person

.J

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- 7

-

In Haddad

, supra

, this Court held that a cognizable action sounding in

breach of physician

- patient confidentiality exists in th is Commonwealth.

Haddad

, 787 A.2d at 978

. I n Grimminger v. Maitra

, 887 A.2d 276 (Pa.

Super. 2005)

, this Court relied on Haddad and the evidentiary privilege set

forth at 42 Pa.C.S.A. § 5929, p hysicians not to disclose information , for a

rough formulation of what a breach of the confidential duty between physician

and patient entails :

[In Ha d dad ,] [t]his Court found an actionable breach of

physician

- patient confidentiality and stated [,] “ [d] octo rs have an

obligation to their patients to keep communications, diagnosis,

and treatment completely confidential. ” [ Haddad

, 787 A.2d] at

981. However, in stating this standard, the [ Haddad ] Court

emphasized the fact that a sexually transmitted disease was at

issue. See id

. Our courts have recognized sexually transmitted

diseases to be loathsome diseases which blacken one ’ s character.

See Agriss v. Roadway Exp., Inc.

, ... 483 A.2d 456, 470 (Pa.

Super. 1984); see also Evans v. Workmen ’ s Compensation

Appeal Board (Julia Ribaudo Home)

, ... 617 A.2d 826, 828 (Pa.

Cmwlth. 1992) ( [stating that the] “ [b] lackening of the character

results from testimony concerning a loathsome diseas e. ” ).

Therefore, the Haddad standard

... must be limited to the context

of the privilege statute [ 4 ] which protects against the disclosure of

information directly related to a patient ’ s confidential information

that blackens their reputation.

Grimminger

, 887 A.2d at 280 (footnote added).

_________________ __________ ______ ____ _______

4 See 42 Pa.C.S.A. § 5929 (providing that “ [n]o physician shall be allowed, in

any civil matter, to disclose any information which he acquired in attending

the patient in a professional capacity, and which was necessary to enable him

to act in that capacity, whi ch shall tend to blacken the character of the patient,

without consent of said patient, except in civil matters brought by such

patient, for damages on account of personal injuries

. ” )

.J

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- 8

-

In her Complaint, Shaner avers that Koontz posted the following

statement on Facebook : “ Getting older is such an adventure. Like is this

chest pain indigestion or a heart attack? Can ’ t wait to see if I ’ m alive

tomorrow .” Plaintiff’s Complaint, ¶ 6. As set forth above, the Facebook post

did not identify Shaner, or state that the post pertained to a ny patient at

UPMC. Further, the post did not disclose a medical condition or diagnosis, or

that Shaner, or any pa tient, had contracted an illness or suffered from a

condition that would blacken their character. See Grimminger

, supra

.

Consequently, we discern no error by the trial court in sustaining the

Defendants’ P reliminary O bjections, and dismissing Shaner’s Co mplaint.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/24/2020