No, this newsletter is not a commentary on the ubiquitous if dehumanizing television shows highlighting the human fascination with and faculty for videotaping stupid human acts, seemingly contradicting Darwian evolution.
It is, however, a newsletter discussing the significance, if at all, of a recent Pennsylvania Superior Court opinion, in Ahmed Tagouma v. Investigative Consultant Services, Inc., circulated on August 10, 2010, beggaring/questioning the stupidity of irrational appeals, for which the ultimate question becomes, “for who, for what?”.
With apologies to Ricky Waters, a former Philadelphia Eagle’s running back whose classic philosophical retort seemingly encapsulates the empirical query of George Berkeley, the infamous English philosopher, whose fundamental empirical axiom was, “if a tree falls in the forest, and no one is there, does it make a sound?”, more aptly asking “for who, for what?”, as the Plaintiff in the above case before the Superior Court, alleged that his privacy had been invaded, when he was surveilled by an investigator, as the Plaintiff, was engaged in “private meditative” worship at a Muslim Mosque in, of all places, Mechanicsburg, PA.
In answer to Berkeley’s query, we now know, or should know, yes, the falling tree makes a sound that no one hears, nor cares about, unless the tree had Facebook friends.
In granting summary judgment in favor of the surveillance investigation company and its investigator, the Superior Court rejected the Plaintiff’s claim that he had an expectation of privacy, while at worship in the mosque, as the Plaintiff had been placed under surreptitious surveillance by the investigation company, hired by the insurance carrier paying workers’ compensation claim benefits to the Plaintiff, who was on disability for his workers’ compensation claim.
In the beginning, there was the word, and the word was do not get caught, and if you do, don’t cry fowl!
In subsequent chapters of biblical irreverence, the Superior Court carefully considered the issues raised by the Plaintiff for review on appeal, to include:
Sometimes, it depends upon what the meaning of the word is, is?
Citing to the Pennsylvania Supreme Court’s landmark ruling in Forster v. Manchester, 189 A.2d 147 (Pa. 1963), the Superior Court held, in affirming the trial court’s grant of summary judgment in favor of the investigators, that someone receiving workers’ compensation benefits has a “diminished expectation of privacy”, as Forster held:
“It is not uncommon for Defendants in accident cases to employ investigators to check on the validity of claims against them. Thus, by making a claim for personal injuries appellant must expect reasonable inquiry and investigation to be made of her claim and to this extent her interest in privacy is circumscribed. It should be noted that all of the surveillances took place in the open on public thoroughfares where appellant’s activities could be observed by passers-by. To this extent appellant has exposed herself to public observation and therefore is not entitled to the same degree of privacy that she would enjoy within the confines of her own home.
Moving to the question of whether “the investigator’s” conduct is reasonable, we feel that there is much social utility to be gained from these investigations. It is in the best interest of society that valid claims be ascertained and fabricated claims be exposed.”
Holding that the Plaintiff “must expect reasonable investigation”, the Superior Court further held that the Plaintiff’s “interest in privacy was circumscribed”.
Since the Plaintiff also asserted an intrusion upon seclusion claim, the Superior Court quoted the trial court’s ruling, “there is no case law in Pennsylvania on point, of a level privacy to be afforded persons in houses of worship”, with the trial court concluding that “a house of worship is a public place”.
Concluding that the Plaintiff failed to show that he had any expectation of privacy while praying in a public mosque, the Superior Court further held that the Plaintiff had a “diminished expectation of privacy because of his workers’ compensation claim”.
Rejecting the Plaintiff’s contention that he had a reasonable expectation of privacy while worshiping, as the Plaintiff contended that his prayers to his god were “private to himself”, the Court rejected that argument, disputing the Plaintiff’s contention, as the Plaintiff was essentially asking the Court to create a privacy expectation based on religion, while ignoring the fact that the Plaintiff was in public view, at the time that the surveillance was conducted.
The Court further held that the Plaintiff’s physical activities, and not his thoughts, prayers, or expressions of prayer, were under view, during the surveillance, as the surveillance could only capture what would otherwise be open to public view, being the Plaintiff kneeling in prayer.
The Superior Court also rejected all of the Plaintiff’s claims that limitations be placed on the surveillance techniques and equipment utilized, as Pennsylvania appellate courts have consistently concluded that various types of vision-enhancing equipment, utilized from a lawful vantage point, do not violate any expectation of privacy.
It being undisputed that the surveillance investigator was standing at a lawful vantage point, using a zoom lens, when conducting surveillance, and that the mosque itself was not obstructed from view from the street, the Superior Court concluded that the Plaintiff failed to establish either his right to privacy, or that his privacy had been violated by the investigator’s use of vision-enhanced photographic equipment, used in a public place, and from a lawful vantage point.
Perhaps, just perhaps, the Plaintiff was praying that he could settle his workers’ compensation claim, in order to offer it as penance.
This opinion is, in fact, an excellent opinion in support of the legitimacy of surveillance, in the course of investigating workers’ compensation or personal injury claims.
Questions concerning casualty litigation practice and procedures, can be directed to our general litigation department attorneys.
Questions concerning issues with regard to workers’ compensation litigation, can be directed to our workers’ compensation attorneys.
© Copyright 2010 by Kevin L. Connors. Reprinted with permission. This article originally appeared on the DuffyConnors LLP website.