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memorandum of law in opposition to defendant's motion to dismiss, the allegations in the
Complaint might suggest that plaintiff is alleging an exception to the at-will employment
rule based on estoppel, i.e. that defendant repeatedly assured plaintiff and others that it
would not intercept e-mail communications and reprimand or terminate based on the
contents thereof and plaintiff relied on these assurances to his detriment when he made
the "inappropriate and unprofessional" e-mail communications in October 1994. The law
of Pennsylvania is clear, however, that an employer may not be estopped from firing an
employee based upon a promise, even when reliance is demonstrated. Paul v. Lankenau
Hospital, 524 Pa. 90, 569 A.2d 346 (1990).
The Court of Appeals in Borse, observed that one of the torts which Pennsylvania
recognizes as encompassing an action for invasion of privacy is the tort of "intrusion
upon seclusion." As noted by the Court of Appeals, the Restatement (Second) of Torts
defines the tort 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 liability to the other for invasion of
his privacy, if the intrusion would be highly offensive to a reasonable person.
Restatement (Second) of Torts § 652B. Liability only attaches when the "intrusion is
substantial and would be highly offensive to the 'ordinary reasonable person.' " Borse,
963 F.2d at 621 (citation omitted). Although the Court of Appeals in Borse observed that
"[t]he Pennsylvania courts have not had occasion to consider whether a discharge related
to an employer's tortious invasion of an employee's privacy violates public policy", the
Court of Appeals predicted that in any claim where the employee claimed that his
discharge related to an invasion of his privacy "the Pennsylvania Supreme Court would
examine the facts and circumstances surrounding the alleged invasion of privacy. If the
court determined that the discharge was related to a substantial and highly offensive
invasion of the employee's privacy, [the Court of Appeals] believe that it would conclude
that the discharge violated public policy." Id. at 622. In determining whether an alleg...
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- Spring '08