BOHNENKAMP v. WHISTERBARTH

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RACHEL BOHNENKAMP )

Plaintiff ) Case No. 1:19-cv-00115-RAL

)

vs. )

) RICHARD A. LANZILLO

JAMES WHISTERBARTH,, et al. ) UNITED STATES MAGISTRATE JUDGE

Defendants )

) MEMORANDUM OPINION AND

) ORDER ON DEFENDANT’S MOTION

) TO DISMISS FOR FAILURE TO STATE

) A CLAIM

)

) ECF No. 47

I. Introduction

Plaintiff Rachel Bohnenkamp, the spouse of an inmate housed at the Federal Correctional

Institution at McKean, Pennsylvania (FCI-McKean), commenced this action against the United

States of America (the Government) under the Federal Tort Claims Act (FTCA) (Count I) and

against Defendant James Wusterbarth—a former Bureau of Prisons Correctional Officer—under

the state common-law theories of intentional infliction of emotional distress and invasion of privacy

(Counts IT and III).' Wusterbarth’s motion to dismiss the claims against him pursuant to Fed. R.

Cty. Pro. 12(b)(6) is currently pending before the Court. For the following reasons, Wusterbarth’s

motion is DENIED.”

' The Government previously moved pursuant to Fed. R. Civ. P. 12(b)(1) to dismiss Mrs. Bohnenkamp’s FTCA claim

for lack of subject matter jurisdiction. ECF No. 39. The Court granted in part and denied in patt the Government’s

motion. See ECF No. 69. The Court has subject matter jurisdiction over the surviving aspects of Mrs. Bohnenkamp’s

PTCA claim against the Government under 28 U.S.C. § 1346(b)(1). The Court has supplemental jurisdiction over Mrs.

Bohnenkamp’s state law claims against Wusterbarth pursuant to 28 U.S.C. § 1367.

2 The parties have consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this

case, including the entry of final judgment, as authorized by 28 U.S.C. § 636. ECF Nos. 7, 53. Although the Complaint

identified the individual defendant’s last name as “Whisterbarth,” he and the Government provided the correct spelling,

‘Wausterbarth,” which the Court uses throughout this Opinion. ECF No. 20, p. 1, n. 2. The Amended Complaint □□□□□□

to Plaintiff as “Mrs. Bohnenkamp.” ECF No. 30. The Court will do the same.

II. Factual Background

A. Allegations of the Amended Complaint

The operative pleading before the Court is Mrs. Bohnenkamp’s Amended Complaint. ECF

No. 30. The following facts are derived from the Amended Complaint and accepted as true for

putposes of Wusterbarth’s motion to dismiss. See US Express Lines Ltd. v. Higgins, 281 F.3d 383, 388

(3d Cir. 2002). They were also previously examined in the Court’s Opinion on the Government’s

motion to dismiss for lack of subject matter jurisdiction.

The Government hired Wusterbarth hired as a Correctional Officer at FCI McKean on

November 29, 2015. ECF No. 40-2, 4. On August 18, 2018, Wusterbarth was on duty in the

visitors’ room at FCI-McKean when Mts. Bohnenkamp and her two minor sons artived to visit Mr.

Bohnenkamp. ECF No. 30, {J 15-16. Mrs. Bohnenkamp had arranged for her, Mr. Bohnenkamp,

and their sons to visit the “family playroom” of the visiting area. Id. 4/18. When Mts. Bohnenkamp

arrived, Wusterbarth motioned for her to come over to the desk where he was stationed to oversee

visiting room activity. Id, J] 19-20. When she complied, Wusterbarth remarked to Mrs.

Bohnenkamp that “he had not spoken to her much in the facility.” Id., 21. This comment struck

Mrs. Bohnenkamp as odd because she had never met Wusterbarth before that day. Id, {| 20.

Wausterbarth then instructed Mts. Bohnenkamp to provide the last two digits of her

telephone number, explaining that he needed to speak with her. Id, ]22. When Mrs. Bohnenkamp

asked why, Wusterbarth replied that he could not speak freely in the facility but “hinted that there

was an issue with Mrs. Bohnenkamp’s husband Chris, which Defendant Wusterbarth needed to

discuss with her in private.” Id, | 22-23. This exchange left Mrs. Bohnenkamp “extremely

troubled.” Id, § 24. Wusterbarth then “warned her that she could not speak to anyone, including

her husband, about the subject of theit conversation,” which “only heightened” her concern. Id,

24. Wusterbarth again directed Mrs. Bohnenkamp to provide him with the last two digits of her

telephone number so that he could contact het. Id, {] 25. The stress and anxiety caused by

Wusterbarth’s orders and comments made her feel nauseous. Id, 4] 26. Mrs. Bohnenkamp

ultimately provided the numbers to Wusterbarth, “believing that she had no other option and

fearing that her husband was in some type of serious trouble.” Id.

Later that day, at approximately 4:03 p.m., after Mrs. Bohnenkamp and her sons had left

FCI-McKean, she tecetved a call on her cell phone from Wusterbarth. Id, 27. Wusterbarth told

her that he needed to meet her to discuss her husband. Id, § 28. Mrs. Bohnenkamp refused to meet

Wusterbarth and demanded to know what was going on. Id, 29. Wusterbarth then acknowledged

that his call was not about her husband; he explained that he was attracted to her and wanted to see

her. Id, § 30. Mrs. Bohnenkamp immediately responded that his advances were inappropriate and

that she was committed to her husband and children. Id, 31.

Despite this rebuke, Wusterbarth insisted multiple times during the call that they meet,

including at the hotel where she was staying with her two sons. Id, § 32. He instructed her “to

leave her two children, ages seven and nine, alone in the hotel room and to meet him in the lobby.”

Id., § 33. When Mrs. Bohnenkamp refused, he instructed her to drive to Buffalo to meet him

because he knew she lived near Niagata Falls. Id, 34. Now, frightened that Wusterbarth knew her

address, Mrs. Bohnenkamp again refused. At this, Wusterbarth then “threatened her that she could

never tell anyone about his advances, and that if she did her husband would be in serious danger.”

Id., 4 35.

The next day, when Mrs. Bohnenkamp returned to FCI-McKean with her sons to visit her

husband, Wusterbarth was again on duty in the visitors’ area. § 36. When he saw Mrs.

Bohnenkamp, Wusterbarth motioned to her to keep silent—a threat which terrified Mrs.

Bohnenkamp and left her in fear for her own safety and that of her husband and children. Id., 37.

As instructed, Mrs. Bohnenkamp did not disclose Wusterbarth’s advances and threats fot months.

Id., 4 38. Because Mrs. Bohnenkamp had given her personal information—including her address,

email, and phone numbet—to the prison when she had registered to visit het husband, she feared

what Wusterbarth could do with access to this information. Id, J 38.

On November 28, 2018, the Bohnenkamp’s son received a phone call from Wusterbarth

who identified himself as an officer at the Bureau of Prisons and told him that his father “had

recently been in an altercation at the prison, and had died.” Id., 39-40. When Mrs.

Bohnenkamp’s son related this information to her, she was terrified and contacted the prison. Id.,

441. A prison official advised that her husband was alive and had not been involved in any

incident. Id.

On March 2, 2019, while Mrs. Bohnenkamp visited her husband at FCI-McKean, another

cottections officer informed them that a new officer would be supervising the visitors’ room for the

next quarter Id., 42. When Mrs. Bohnenkamp asked whether Wusterbarth would be supervising

visitation, the same corrections officer advised her that Wusterbarth was on voluntary leave pending

an investigation of sexual harassment and misconduct against visitors. Id, {| 43-44. That same day,

Mrs. Bohnenkamp filed a report regarding Wusterbarth’s misconduct with the Bradford,

Pennsylvania Police Department. As part of her report, she told the police that Wusterbarth had

contacted her using a cell phone with a Las Vegas area code. Id, §]47. Later that evening, at 9:17

p.m., Mrs. Bohnenkamp received a series of text messages from a number she did not know, which

read as follows: “You opened your mouth, you aren’t smart at all”; “2022 you seem comfortable at

best”; “My Vegas number? Seriously”; “See ya soon.” Id, 48-49. Mrs. Bohnenkamp understood

the reference to ‘2022” to be to Mr. Bohnenkamp’s prison release date, while “My Vegas number?”

referred to the fact that Mrs. Bohnenkamp had provided Wusterbarth’s Las Vegas area cell phone

number to the Bradford Police. Id, 951. Mrs. Bohnenkamp feared that these text messages meant

that Wusterbarth would harm her or her family in retaliation for her police report. Id, Jf] 52-53. To

avoid Wusterbarth, Mrs. Bohnenkamp changed her phone number and moved her family multiple

times. Id., §] 53.

Mrs. Bohnenkamp’s husband also received a “bizarre” postcard while he was incarcerated

which was sent by Wusterbarth but purported to be from his son. Id, {| 54-56. It was signed with

his son’s nickname and included comments about the possibility of the Bohnenkamps’ divorce. Id.

This was sent after Mrs. Bohnenkamp had rejected Wusterbarth’s advances. Id., 4 56.

When Mts. Bohnenkamp reported Wusterbarth’s conduct to officials at FCI McKean, she

was informed that they “already knew about Defendant Wusterbarth’s predatory conduct, and had

known for some time.” Id, J§ 57-58. Mrs. Bohnenkamp also alleges that prison officials, including

Warden Trate, had known that Wusterbarth kept an office calendar on which he recorded when

vatious women were scheduled to come to the visitors’ area at FCI-McKean, that Wusterbarth used

this calendar to ensure that he was present when the women he wanted to pursue came to the

prison, and that Warden Trate was awate of Wusterbarth’s calendar before his contact with Mrs.

Bohnenkamp on August 18, 2018. Id., {J 58-61.

Because of Wusterbarth’s harassment, “Mrs. Bohnenkamp has suffered fear, humiliation,

panic, anxiety and helplessness.” Jd, [ 82. She has also “lived in a constant state of concern that her

husband might be retaliated against for her refusal to cooperate with Defendant Wusterbarth’s

desires,” until her husband was recently released. Id, | 84.

Mrs. Bohnenkamp filed an administrative claim alleging Wusterbarth subjected her to the

preceding mistreatment and that Warden Trate was aware of Wusterbarth’s predatory conduct. Jd,

68. See also ECF No. 40-3. Her administrative claim was denied on June 15, 2020. ECF No. 30,

{| 69.

B. Mrs. Bohnenkamp’s Legal Claims Against Wusterbarth

The Amended Complaint asserts an intentional infliction of emotional distress claim (Count

I) and an invasion of privacy claim (Count II) against Wusterbarth. ECF No. 30. Under Count II,

Mts. Bohnenkamp claims that Wusterbarth used his authority as a corrections officer to subject her

to repeated acts of sexual harassment and, after she refused his advances, repeated acts of retaliation,

all of which caused her to suffer severe emotional distress. /d, ] 89. Count III asserts that

Wusterbarth invaded her privacy “by stalking her while she visited her husband at FCI-McKean,

obtaining her personal information from the FCI-McKean records, attempting to use his offictal role

to coerce her to provide sexual favors to him, contacting her and her family members for the

purpose of intimidating her after she rebuffed him, and threatening her after she filed a police report

against him.” Id., 4 101-02. Wusterbarth’s motion challenges the legal sufficiency of the Amended

Complaint’s allegations to sustain either of Mrs. Bohnenkamp’s claims against him.

C. Standard of Review

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal

sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 Gd Cir. 1993). In deciding a

motion to dismiss, the coutt is not opining on whether the plaintiff is likely to prevail on the merits;

tathet, the plaintiff must only present factual allegations sufficient “to raise a right to relief above the

speculative level.” Be// Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed. 2d

929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (ad

ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). A

complaint should only be dismissed pursuant to Rule 12 (b)(6) if it fails to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 US. at 570, 127 S. Ct. 1955

(rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78S. Ct.

99, 2 L. Ed. 2d 80 (1957)). In making this determination, the court must accept as true all well-pled

factual allegations in the complaint and views them in a light most favorable to the plaintiff. ULS.

Express Lines Lid. v. Higgins, 281 F.3d 383, 388 Gd Cir. 2002).

While a complaint does not need detailed factual allegations to survive a motion to dismiss, a

complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555, 127 S. Ct.

1955. A “formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan □□

Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). Moreover, a court need not

accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the

complaint. See Cakfornia Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 3d Cir. 2004)

(citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept

legal conclusions disguised as factual allegations. Twombly, 550 US. at 555, 127 S. Ct. 1955. See also

McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) (“The tenet that a court must

accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”).

Expounding on the Twombly/Igbal line of cases, the Third Circuit has articulated the

following three-step approach:

First, the court must ‘tak[e] note of the elements a plaintiff

. must plead to state a claim.’ Second, the court should identify

allegations that, ‘because they are no more than conclusions,

ate not entitled to the assumption of truth.’ Finally, ‘where

there are well-pleaded factual allegations, a court should

assume their veracity and then determine whether they

plausibly give tise to an entitlement for relief.’

Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629

F.3d 121, 130 □□□ Cir. 2010)). This determination is “a context-specific task that requires the

,

reviewing court to draw on its judicial experience and common sense.” Igba/, 556 U.S. at 679, 129 S.

Ct. 1937.

D. Analysis

i. Mrs. Bohnenkamp’s Amended Complaint alleges facts sufficient to satisfy the

“extreme and outrageous” conduct element of her TED claim.

Although the Pennsylvania Supreme Court has never explicitly recognized the tort of

intentional infliction of emotional distress (IED) under Pennsylvania law, it has cited Section 46 of

the Restatement (Second) of Torts “as setting forth the minimum elements necessary to sustain such

a cause of action.” Taylor v, Albert Einstein Med. Ctr., 562 Pa. 176, 754 A.2d 650, 652 (Pa. 2000)

(citations omitted). Based on this ptecedent, the United States Court of Appeals for the Third

Circuit has predicted that the Pennsylvania Supreme Court would adopt ITED as a cause of action as

set forth in Section 46. Wiliams v. Guzzardi, 875 F.2d 46, 50-51 3d Cir. 1989) (discussing Chuy v.

Phila, Eagles Football Club, 595 F.2d 1265, 1273 d Cir. 1979) (en banc)). Applying Section 46, the

Third Circuit identified the following elements a plaintiff must demonstrate to prevail on an ITED

claim: (1) the Defendant’s conduct was extreme and outrageous; (2) his conduct caused the plaintiff

severe emotional distress; and (3) he acted intending to cause that person such distress or with

knowledge that such distress was substantially certain to occut. Brown v. Muhlenberg Tup., 269 F.3d

205, 217-18 (3d Cir. 2001) (citing Restatement (Second) of Torts § 46 (1965)). See aéso Robinson □□

Railroad Passenger Corp., 821 Fed. Appx. 97, 102 (3d Cir 2020). Several Pennsylvania courts and

federal courts interpreting Pennsylvania law have held that a plaintiff must also allege physical injury

or harm to state an ITED claim. See, ¢2., Seg v. Sloyer, 2014 WL 3907131, at *3 (Pa. Commw. Ct.

Aug. 12, 2014) (citing Abadie v. Riddle Memorial Hospital, 404 Pa. Super. 8, 589 A.2d 1143 (Pa. Super.

Ct: 1991)); Doughty v. Wells Fargo Bank, N.A., 2018 WL 1784159, at *4 (E.D. Pa. Apr. 13, 2018).

Wusterbarth’s motion to dismiss Mrs. Bohnenkamp’s ITED claim challenges ov/y the

sufficiency of her factual allegations to support the “extreme and outrageous” conduct element of

the cause of action. ECF No. 47, pp. 7-9. Wusterbarth correctly notes that a plaintiff must clear a

high factual bar to support this element. Indeed, liability on an NED claim “has been found only

where the [defendant’s] conduct has been so outrageous in character, and so extreme in degree, as to

go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in

a civilized community.” Field ». Phila. Elec. Co., 388 Pa. Super. 400, 565 A.2d 1170, 1184 (Pa. Super.

Ct. 1989). “It is the court’s responsibility to determine if the conduct alleged in a cause of action

teaches the requisite level of outrageousness.” Andrews v. City of Philadelphia, 895 F.2d 1469, 1487 3d

Cir. 1990).

The Court finds that Wusterbarth’s alleged misconduct in this case easily rises to the

requisite level of outrageousness necessaty to support a plausible ITED claim against him. The

Amended Complaint alleges facts to support a finding that Wusterbarth used his position of

authority to solicit a sexual telationship with Mrs. Bohnenkamp under the pretext that he possessed

important and sensitive information regarding her incarcerated husband. Id.,] 35. According to the

Amended Complaint, when she rejected him, he warned her that “she could never tell anyone about

his advances, and that if she did her husband would be in setious danger.” Id. The Amended

Complaint alleges that Wusterbarth further escalated his harassment and tetaliation to the point of

misrepresenting to Mrs. Bohnenkamp’s son that her husband had died in prison when Wusterbarth

knew that her son would communicate this false information to Mrs. Bohnenkamp. Id, □□□ 39-41.

The Amended Complaint also alleges that Wusterbarth sent her text messages that could reasonably

be understood as threats against her safety and that of her family. Id, 47-53.

□

Several courts have found that falsely representing that a spouse or other family member has

died or suffered a serious injuty is enough on its own to demonstrate extreme and outrageous

conduct. Indeed, Comment d to Section 46 of the Restatement of Torts cites cases involving

ptecisely this type of conduct as sufficiently outrageous to support an ITED claim. Both the

Pennsylvania Supteme Court and federal courts interpreting Pennsylvania law have looked to the

comments to Section 46 and the cases cited therein to guide their analysis of whether conduct is

outrageous for purposes of an ITED claim. See Kazatsky v. King David Mem’l Park, Inc., 515 Pa. 183,

527 A.2d 988, 991-92 (Pa. 1987); Doughty v. Wells Fargo Bank, N.A., 2018 WL 1784159, at *3 n. 4

(E.D. Pa. Apr. 13, 2018) (noting that “the black letter rule of § 46 of the Restatement, along with the

interpretive comments, may be applied as the basis in Pennsylvania law for [IIED]”) (quoting Chuy ».

Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 Gd Cir. 1979)).

One illustrative case cited by the Reporter’s Notes to Comment d is Savage v, Botes, wherein

the court found a police officer liable for TED based on his falsely telling the plaintiff that her child

was seriously injured as a means to induce her to enter a mental hospital. 77 Ariz. 355, 272 P.2d 34

(1954), The Reportet’s Notes also cite Béelitski v. Obadisk, a case out of Canada that imposed liability

based on the defendant's spreading a false rumor that the plaintiff's son had hanged himself when

the defendant knew that the rumor was likely to reach the plaintiff. (1921) 61 D.L.R. 494, 495, 497,

15 Sask. L.R. 155 (Can. Sask. K.B.). See also, Wilkinson v. Downston, 2 Q.B.D. 57 (1897) (lability based

on the defendant’s having falsely told the plaintiff that her husband had been severely injured in an

accident; first example cited to illustrate extreme and outrageous conducted under Section 46 of the

Restatement). Here, Wusterbarth’s alleged misconduct is directly analogous to that addressed in the

cases cited in the comments to Section 46. In fact, the Amended Complaint presents a narrative

even more compelling than those cases because it goes beyond the one shocking misrepresentation

10

that Mr. Bohnenkamp had died and presents this mistepresentation as part of a pattern of

harassment and retaliation.

Wusterbarth repeatedly chatactetizes his actions merely as “bad romantic passes that” Mrs.

Bohnenkamp “subjectively view[s] as offensive.” ECF No. 47, p. 8. It is accurate that Mrs.

Bohnenkamp’s allegations include Wusterbarth’s unwanted sexual advances. See ECF No. 30,

4 37, 82-85. And the Court agrees that propositioning another person to engage in a physical or

romantic relationship alone may not enough to support an TED claim. But here, Wusterbarth’s

failed overtures were allegedly accompanied by cruel misrepresentations and threats to her safety

and that of her family that one would reasonably expect to cause a person of average sensitivity to

suffer severe emotional distress.

Wusterbarth also argues in his brief that Mrs. Bohnenkamp’s ITED claim must be dismissed

because the “facts presented by the Plaintiff are speculatively tied to the Defendant” and “cannot be

connected” to him. ECF No. 48, pp. 8-9. This argument ignores the applicable standard of review

on a motion to dismiss. The current posture of this case requires the Court to take as true all well-

pled factual allegations in the complaint and view them in a light most favorable to the plaintiff. See

U.S. Express Lines Lid, 281 F.3d at 388. Under this standard, Wusterbarth’s motion to dismiss this

ITED claim must be denied.

2. The Amended Complaint alleges facts to state a plausible claim for invasion of

ptivacy.

The tort of invasion of privacy in its intrusion on seclusion form requires “an intentional

intrusion upon the seclusion of [plaintiffs] private concerns which was substantial and highly

offensive to a reasonable person, and ...sufficient facts to establish that the information disclosed

would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities.”

11

Boring v. Google Inc., 362 Fed. Appx. 273, 279 (3d Cir.2010) (quoting Pro Golf Mfe., Inc. v. Tribune Review

Newspaper Co., 570 Pa. 242, 809 A.2d 243, 247 (Pa. 2002)). The privacy invasion may occur “(1) by

physical intrusion into a place where the plaintiff has secluded himself, (2) by use of the defendant’s

senses to oversee or overhear the plaintiffs private affairs, or (3) some other form of investigation

of examination into plaintiffs private concerns.” Harris by Harris v. Easton Publishing Co., 483 A.2d

1377, 1383-84 (Pa. Super. Ct. 1984). Further, unlike libel and slander claims, publicity is not an

element of the claim of intrusion on seclusion invasion of privacy. Id. Examination of the caselaw

and the Restatement (Second) of Torts, Section 652B (which Pennsylvania has adopted) reveals that

even if the alleged invasion did occur in some way upon the plaintiffs private concerns, the mere

fact of the intrusion is insufficient; the conduct must have been “highly offensive to a reasonable

person.” Larsen v. Philadelphia Newspapers, Inc., 375 Pa. Super. 66, 543 A.2d 1181, 1186-87 (Pa. Super.

Ct. 1988)). See also Marks v. Bell Telephone Co. of Pa., 460 Pa. 73, 331 A.2d 424 (Pa. 1975). Moreover,

although persistent intrusions are illustrative of the cause of action in the Second Restatement, “it is

cleat that the important point is not that the intrusions be persistent but that the intrusions should

by one means or another...rise to the level of what a reasonable person would find “highly

offensive.” Diaz v. D.L. Recovery Corp., 486 F. Supp. 2d 474, 480 (E.D. Pa. 2007), cited approvingly by

Boring, 362 Fed. Appx. at 279 (3d Cir. 2010).

Wusterbarth argues that Mrs. Bohnenkamp has failed to plead facts to support a plausible

claim for invasion of privacy. ECF No. 47, p. 3. In support of the sufficiency of her claim, Mrs.

Bohnenkamp cites Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996). In that case, the district

court gtanted a preliminary injunction in favor of the plaintiffs on their intrusion on seclusion claim

that the defendants—news reporters—had engaged in “a course of hounding, harassing,

intimidating, and frightening conduct” in violation of the plaintiffs “night to be let alone’ to enjoy

the tranquility and solitude of their home” when the reporters over a petiod of days surveilled the

12

plaintiffs at their home, closely followed them in vehicles from their home to their daughtet’s

daycare and back, and aimed professional, technically sophisticated video and sound recording

equipment at them in public and at their home. Id, at 1423-34. Mrs. Bohnenkamp argues that the

facts alleged in the Amended Complaint are more egregious than those found sufficient for a

pteliminary injunction in Wolfson. ECF No. 49, pp. 7-8. Wusterbarth argues that Wod/son is

distinguishable on its facts because the Amended Complaint does not allege that he followed Mts.

Bohnenkamp to her home or anywhere else. ECF No. 55, p. 4. In the Court’s view, this case

presents factual allegations sufficiently analogous to the facts examined in Wolfson to support Mts.

Bohnenkamp’s claim. No two cases arise from identical facts, and in certain respects, the Amended

Complaint here alleges more egregious conduct than that considered in Wod/son. For example, the

reporter defendants in that case made no explicit or implied threats of harm or violence.

In addition, contrary to Wusterbarth’s position, there is no requitement in Pennsylvania case

law that the only actionable intrusions on seclusion occur at home, school, or work. See, ¢.g., Wolfson,

924 PF. Supp. at 1420 (acts “conducted in a public or semi-public place, may nevertheless rise to the

level of invasion of ptivacy based on intrusion upon seclusion”), Mts. Bohnenkamp alleges that

Wusterbatth invaded her privacy when he called her and sent her text messages that were highly

offensive and caused her harm. The court in Dzay found that the plaintiff stated a cause of action

for intrusion on seclusion based on statements in a single phone call. 486 FP. Supp. 2d at 479 (E.D.

Pa. 2007). The plaintiff received a call from a then-unknown person who “warned her that he

would, within hours, ‘repossess all of her household belongings and even her car’” unless she paid

up on “a Summons for over $100,000.” Id, at 476. The caller also stated, “if you don’t want your

baby to sleep on the floor tonight you'll give me your checking account number”; and “aren’t you

ashamed that the father of your child doesn’t care about you or your child, Henry has five other

girlfriends that we also have summons fot, aten’t you afraid of getting AIDS?” Jd The court ruled

13

that these statements supported a claim for invasion of privacy “by virtue of the outrageous

character of the one intrusion described by Plaintiffs.” Id, at 480. By comparison, courts reject

intrusion on seclusion claims when the facts alleged do not “clearly demonstrate outrageous, rather

than annoying or upsetting, conduct.” Rush v. Portfolo Recovery Associate LLC, 977 F. Supp.2d 414,

435 (D.N.J. Oct. 17, 2013). See Correctional Medical Car, Inc. v. Gray, 2008 WL 248977, at *7 (E.D. Pa.

Jan. 30, 2008) (single call which involved no harassment ot threats was not highly offensive as a

matter of law in comparison to the Eastern District of Pennsylvania’s decision in Diaz); Linko 0,

Action Financial Services, 2007 WL 6882431, at *1, *8 (M.D. Pa. Oct. 29, 2007) (insults and

swears accompanying three phone calls requesting payment on a debt were not highly offensive);

Wattie-Bey v. Modern Recovery Solutions, 2016 WL 1253489, at *7 (M.D. Pa, Mar. 10, 2016) (granting

summaty judgment on evidence of two calls to a cell phone placed within a minute by an automated

phone dialer).

Wusterbarth 1s alleged to have intruded on Mrs. Bohnenkamp’s privacy by attempting to

coerce her into a sexual relationship with false and misleading expressions of concern for her

husband, deceptive and improper efforts to secure her personal identifying information, and a false

report that her husband had died. The Amended Complaint further alleges that Wusterbarth made

implicit threats against her and her family and, after she reported his misconduct to authorities, sent

threatening and intimidating text messages to her. As previously discussed, such conduct would be

highly offensive to a reasonable person. See Savage, 77 Ariz. 355; Bzelitski, 61 D.L.R. at 495, 497.

These allegations ate sufficiently analogous to the harassment in Dzaz to state a claim for intrusion

on seclusion. Dzaz, 486 F. Supp. 2d at 479. Wusterbarth argues that it is “pure speculation”

unsupported with documentation that he placed the phone call or sent these text messages at issue

[ECF No. 47, pp. 5-6], again raising factual disputes that are beyond the Court’s applicable standard

of review on a motion to dismiss. See Burich, 662 F.3d at 221 (citations omitted). Accepting the facts

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alleged in the Amended Complaint as true and drawing all reasonable inferences in the plaintiff's

favor, as the Court must, Mrs. Bohnenkamp’s Amended Complaint states an invasion of privacy

claim. Accordingly, the Court will deny Wusterbarth’s motion to dismiss this claim.

V. Conclusion

The Amended Complaint alleges facts sufficient to state plausible claims of both intentional

infliction of emotional distress and invasion of privacy against Wusterbarth. Therefore, the Court

deny Wusterbarth’s motion to dismiss pursuant to Fed. R. Civ. Pro. 12(b)(6). An appropriate order

follows.

□ ORDER

Defendant James Wusterbarth’s Motion to Dismiss the Amended Complaint pursuant to

F ed. R. Civ. P. 12(b)(6) [ECF No. 47] is DENIED. Wusterbarth is ordered to file an Answer to the

Amended Complaint on or before May 28, 2021. □

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Dated: May 14, 2021 RICHARD A. LANZILLO

United States Magistrate Judge

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