Aaron Boring, et al v. Google Inc

Filing 309784032

ECF FILER: ELECTRONIC BRIEF with Volume I of Appendix attached on behalf of Appellants Aaron C. Boring and Christine Boring, filed. Certificate of Service dated 08/25/2009 by US mail, 3rd party, email. (GRZ)

C.A. NO. 09-2350 _________________________________________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________________________________________________________________ AARON C. BORING and CHRISTINE BORING, husband and wife, Appellants, v. GOOGLE, INC., a California corporation, Appellee. _________________________________________________________________________ Appeal from Western District of Pennsylvania 2:08-cv-00694 APPEAL FROM ORDER DATED FEBRUARY 17, 2009, DISMISSING PLAINTIFFS' AMENDED COMPLAINT, GRANTING DEFENDANT'S 12(B)(6) MOTION ON ALL COUNTS; APPEAL FROM ORDER DATED APRIL 6, 2009, DENYING PLAINTIFFS' MOTION FOR RECONSIDERATION _________________________________________________________________________ BRIEF OF APPELLANTS AARON AND CHRISTINE BORING APPENDIX VOLUME I (A1-A20) _________________________________________________________________________ Gregg R. Zegarelli, Esq. PA I.D. #52717 [e-mail] 412.765.0401 Dennis M. Moskal, Esq. PA I.D. #80106 [e-mail] 412.765.0405 ZEGARELLI Technology & Entrepreneurial Ventures Law Group, P.C. Allegheny Building, 12th Floor Pittsburgh, PA 15219-1616 v.412.765.0400 f.412.765.0531

TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................... i TABLE OF AUTHORITIES .................................................. ii STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION ................. 1 STATEMENT OF THE ISSUES ................................................ 2 STATEMENT OF THE CASE .................................................. 4 STATEMENT OF FACTS .................................................... 11 STATEMENT OF RELATED CASES ............................................ 10 SUMMARY OF ARGUMENT ................................................... 11 ARGUMENT .............................................................. 11 I. II. III. IV. V. VI. VII. Standard of Review ........................................... 18 Incorporation by Reference ................................... 19 Privacy ...................................................... 19 Trespass ..................................................... 22 Unjust Enrichment ............................................ 27 Punitive Damages ............................................. 28 Injunctive Relief ............................................ 31

CONCLUSION ............................................................ 32 CERTIFICATES OF BAR MEMBERSHIP ........................................ 38 CERTIFICATE OF COMPLIANCE ............................................. 39 CERTIFICATION OF IDENTICAL BRIEFS AND VIRUS SCAN ...................... 40 CERTIFICATE OF SERVICE ................................................ 41 APPENDIX TABLE OF CONTENTS

TABLE OF AUTHORITIES

Cases Bastian v. Marienville Glass Co., 126 A. 798 (Pa. 1924) ................ 23 Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007) .............. 18, 23 Brunette v. Humane Society, 40 Fed.Appx. 594, 2002 U.S.App. LEXIS 13169 (9th Cir. 2002) ...................................................... 22 Cohen v. Resolution Trust, No. 03-2729, 107 Fed. Appx. 287, (3rd. Cir 2004) ................................................................ 23 Cook v. Rockwell Int'l., 273 F.Supp 2d 1175 (D.Colo. 2003) ............. 25 Costlow v. Cusimano, 34 A.D.2d 196; 311 N.Y.S.2d 92 (1970) ............. 26 Dietemann v. Time, Inc., 449 F.2d 245, 247-249 (9th Cir. 1971) ......... 22 Dolan v. City of Tigard, 512 U.S. 374, 384, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994) .......................................................... 30 Gavcus v. Potts, 808 F.2d 596 (7th Cir. 1986) .......................... 24 Hoffman v. Vuilcan Materials Co., 91 F.Supp. 2d 881 (M.D.NC. 1999) ..... 25 Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988) ........ 24 In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 461 (3d Cir. 2000) . 18 Jones v. Walker, 425 Pa.Super. 102, 109 (Pa.Super. 1993) ............... 24 Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979) ....................................................... 30 Kirkbride v. Lisbon Contractors, 521 Pa. 97, 555 A.2d 800 (1998) ....... 29 Kopka v. Bell Tel, 91 A.2d 232, 235 (1952) ............................. 25 Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006). ................. 28 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982) ....................................... 30 Lugue v. Hercules, 12 F.Supp. 2d 1351 (S.D.Ga. 1997) ................... 25 Morris & Essex Mut. Coal Co., v. Delaware, L. & W.R. Co., 42 A. 883, 884 (Pa. 1899) ........................................................... 23 N.E. Women's Ctr., Inc. v. McMonagle, 689 F.Supp. 465, 477 (E.D.Pa. 1988) ..................................................................... 25 Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) .......................... 19 Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) ............................................... 30 Omnipoint Communications Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000) ................................................... 18 Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002) 18, 19 Phillips v. County of Allegheny, et. al., 515 F.3d 224; 2008 U.S. App. LEXIS 2513 (3rd Cir. 2008) ........................................ 18,19 Graham Oil v. BP Oil Co., 885 F. Supp. 716, 725 (W.D.Pa. 1994) ......... 22 Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000) ...................... 18 Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003) ..... 18

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Treatises and Restatements 2009 Federal Rules Handbook, 12(b)(6) .................................. F.R.C.P. 8(a)(2) ....................................................... F.R.C.P. 12(b)(6) ............................................ 1, 5, 18, Goodrich Amram, Summary of Pennsylvania Jurisprudence 2d, § 23:1 ....... Restatement (Second) of Torts, §158 .................................... Restitution and Unjust Enrichment 2d (Draft) ................... 17, 26, W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984) ....... 15 19 21 24 24 28 30

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STATEMENT OF SUBJECT MATTER AND APPELLATE JURISDICTION On April 2, 2008, this action was commenced in the Court of Common Pleas of Allegheny County, Pennsylvania captioned Boring v. Google, Inc., Case No. GD 08-694. County, Pennsylvania. On May 21, 2008, Google filed a Notice of Removal with the U.S. District Court for the Western District of Pennsylvania, removing the action to the District Court pursuant to 28 U.S.C. §1441. The District Court had Aaron and Christine Boring are residents of Allegheny

original jurisdiction of the civil action pursuant to 28 U.S.C. §1332. On July 18, 2008 and August 14, 2008, respectively, Google and the Borings each filed a Consent to Jurisdiction by U.S. Magistrate. On July 22, 2008, the Borings filed an Amended Complaint. On

August 14, 2008, Google filed a Motion to Dismiss the Amended Complaint, demurring to each count pursuant to F.R.C.P. 12(b)(6). On February 17, 2009, the Magistrate Judge granted Google's Motion to Dismiss, dismissing the Amended Complaint on all counts with prejudice. On February 27, 2009, the Borings filed a Motion for Reconsideration pursuant to Federal Rules of Civil Procedure 59(e). On April 6, 2009, the

Magistrate Judge denied the Borings' Motion for Reconsideration. On May 4, 2009, the Borings filed their Notice of Appeal. peal was from a final Order that disposed of all claims. The Ap-

This Court has

jurisdiction to review final Orders of the District Court pursuant to 28 U.S.C. §1291.

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STATEMENT OF ISSUES Standard of Review. For each issue, the Magistrate Judge erred in formu-

lating or applying a legal concept, for which the review of the Third Circuit is plenary, de novo. 1. Invasion of Privacy. The Magistrate Judge erred in determining, as a matter of law on a 12(b)(6) demurrer, that a reasonable person would be not be highly offended or incur mental suffering, shame or humiliation, having discovered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool (close to the home windows), while ostensibly trespassing, after also trespassing and driving far down a privately maintained graveled road and past "Private Road No Trespassing" signage, having published the pictures throughout the world via the trespasser's pervasive proprietary index system; and FURTHER erred by failing to view plaintiffs' averments, and reasonable inferences drawn therefrom, in the light most favorable to the plaintiffs; erred in considering the tortfeasor's removal weblinks with failure to consider the cost and burden upon the injured party to be required to discover and to mitigate within the technological constraints imposed by the tortfeasor; erred in using permissible conduct of plaintiffs, during the course of this civil action, after the fact, as evidence of damage averments before the fact, including that this action was not filed under seal; and erred in using unspecified lack of "claims," in unspecified jurisdictions, with unspecified facts, to draw invalid conclusions that tortfeasor's "Street View" is viable as part of a prima facie pleading ruling; and erred in accepting extrinsic evidence from the Court's own unilateral "Googling" activities regarding plaintiffs' counsel. 2. Trespass. The Magistrate Judge erred in prejudging that compensatory damages are not available as a matter of law; and FURTHER erred in requiring pleading damages when, at the same time, opining that damages are not an element of a prima facie claim; and erred in holding that plaintiffs had a special duty to plead nominal damages in the complaint and that plaintiffs were required to forfeit any claim to compensatory damages at the pleading stage without the aid of discovery or the benefit of expert review.

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3. Unjust Enrichment. The Magistrate Judge erred in ruling as a matter of law that: i) the relationship between the parties must be construed as contractual; ii) that plaintiffs did not confer anything of value on Google; and iii) that there is no independent cause of action for unjust enrichment being subsumed by the other claims, particularly when the other claims were dismissed. 4. Punitive Damages. The Magistrate Judge erred in holding punitive damages are not available as a matter of law even though pleaded and evidence is in the possession of defendant. 5. Injunctive Relief. The Magistrate Judge erred in dismissing the claim for injunctive relief leaving the plaintiffs without even a destruction/non-use claim.

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STATEMENT OF THE CASE The Borings filed this action against Google, among other claims, for trespass and invasion of privacy. The claims arise from Google's [Complaint; A29-35] "Street View" practices, whereby

Google traverses the physical earth with one or more 360° cameras and then automatically publishes the results throughout the world via the Internet as part of its profit strategy. a social phenomenon. For the first time, a commercial enterprise has the ability to use 21st Century roads, with 21st Century vehicles, with 21st Century 360° camera technology, with 21st Century recording, storage and digitization technology, with 21st Century indexing and search technology, with 21st Century Internet access technology, with 21st Century pervasive publishing technology. Notwithstanding a "Private Road No Trespassing" road sign, Google drove from a paved public road onto the Borings' crunching graveled and potholed privately owned road while taking 360° photographic imagery of the surroundings. Continuing on the privately owned road and past clearly Google's implementation of Street View is

marked "Private Road No Trespassing" signage, Google drove from the private road deeper back into and onto the Borings' private residential driveway. Then, Google proceeded to take additional close-up pictures of

the Borings' secluded residence, swimming pool and surroundings, while actually trespassing on the Borings' driveway at the front of their home.1
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"Crunching graveled and potholed" was not averred in the Complaint, nor was the length of more than 1000 feet (three football fields inclusive of a right of way); nor was the fact that the mailbox is at the beginning of the private road 1,000 feet from the home at the public road junction. Also, we also understand that drivers are paid by the mile photographed. These are detail inferences now and trial facts later. 4

Google commercially used the pictures by publishing them throughout the world as part of Google's profit strategy in its Street View program. The acts were without consent. Id. ____________________________________________ Google demurred to all counts, by F.R.C.P. 12(b)(6), and the Magistrate Judge dismissed all counts, and thus the entire case, giving rise to this appeal. The Magistrate Judge dismissed even though Google's specific

intent of the trespass was to accomplish the very goal that was, in fact, accomplished. Google's intent was to enter the land, and to acquire the

pictures that were actually acquired and to publish them as they were actually published, in Google's commercial environment.2 ____________________________________________ In ruling on the privacy count, the Magistrate Judge concluded that it is "hard to believe" that the damage was "as severe" as averred, apparently because of post-filing publicity about this case. the Magistrate Judge admitted "Googling."3 To reason thusly,

Googling for data by the trial

judge, as part of the 12(b)(6) demurrer review, is clearly improper, if not undermining confidence in the entire judicial process: that it occurred is no less concerning than why it occurred. And, even more egre-

giously, the conclusive inference drawn against the Borings is not sup-

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E.g., this was not a misdirected commercial ice cream truck, someone pushed onto the land, someone turning around, or a mail carrier. Google was on the private property, intentionally, for a profit purpose, to acquire pictures for publication, which it did acquire and publish, implementing Google's commercial profit strategy. 3 Opinion, dated February 17, 2009 at 4-5; A7-8 [hereafter "Opinion"] ("'Googling' the name of the Borings' attorney demonstrates that publicity regarding this suit has perpetuated dissemination of the Borings' names and location, and resulted in frequent re-publication of the Street View images. Plaintiffs' failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and the [sic] their suffering was less severe than they contend.") 5

ported by one reference and, therefore, cannot even be traced for its proper quality and authenticity apart from mere judicial speculation. The

undersigned appeals to this Court that the proper admission of evidence to a neutral judge is difficult enough for zealous advocates, let alone trying to manage a situation where the trial judge is conducting searches regarding the legal activities of plaintiffs' attorneys using the defendant's own index services. In addition to googling, the Magistrate Judge also performed unreferenced, uncategorized, independent research to draw a serious incorrect statistical inference against the Borings, to wit: that the lack of claims made against Google (apparently leaving it viable as a service) tends to prove that the Borings' privacy claim was not minimally pleaded pursuant to 12(b)(6).4 The act was improper, and the reasoning was

clearly invalid speculation.5 Even more revealing, the Magistrate Judge expressly concluded that "any attempted amendment would be futile." [Opinion, at 12, n. 8; A15]

In saying so, the Magistrate Judge admitted the deeper belief and rationale, that nothing would allow this case to proceed to discovery on any count: to wit, that there are no facts that could be amended with the same counts, nor any count that could be amended with the same facts, nor any

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Opinion, at 5, A8 ("[I]t does not appear that the viability of Street Search [sic] has been compromised by requests that images be removed, nor does a search of relevant legal terms show that courts are inundated with - or even frequently consider - privacy claims based on virtual mapping.") 5 "Inundated" is not defined as a standard, but the inference must be that an injured person needs a computer, must know how to use it, then be caused to investigate online. There is no foundation to draw any inference against the Borings that Google's database is not replete with undiscovered violations. In fact, the inference must be that a statistician would prove the presupposition as backwards: property owners are older, older people are less technologically capable, and the most secluded person, with the most egregious injury, would be least able to discover it.

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combination of both, that would allow the facts to match the law and to permit the case to proceed on any basis (even with inferences). _______________________ Google is a success to be sure. But, because Google is a success Such a legal

does not mean that it follows that it has done no wrong. presumption is reserved for kings.

The Borings have their inference.

If a person claims an accident, and I find his penny in my pocket, I might believe it; but, if I find my penny in his pocket, I am not so sure. Google's success is no accident, and Google's actions to achieve that success are no accident. Google has far too many pennies in its pocket.

Sweet words aside, Google gets exactly what it wants, and has the profit to show for it. But, there are no accidents. The Google people are very

smart people, and they are equally clever.

While we love Google for sat-

isfying our addictions for "free" computer candy, Google acquires raw power in our new age: money, technology and information. We are sugar-

blind where we should be vigilant: to see that Google enjoys profits by socializing its expenses onto the unwary. The inference now, and fact to

be proved, after discovery at trial, is as follows: Google's "Street View" program is a database that requires "critical mass" to be viable. Critical mass is the point where enough people have enough random search success that the site gains a positive reputation for reliable results. A search database needs data, in volume, fast. Google values its time and money, and needs to gain competitive advantage, so it intentionally disregards property rights and the commitment of time and money to verify data before or after the fact and publishes automatically. Google does exactly what it intends: it acquires data, publishes data, and then makes the sweet offer of an after-thefact mitigation policy. This yields perfect cost efficiency and extremely high profitability, because there is no inefficiency or cost in verifying the content that would already be permissible; only errors actually discovered by people on their own time, at their own cost, bubble up to be removed by the automated technology, by special request opt-out. Google in7

tentionally socializes its compliance costs by requiring that we use our own valuable resources to "cleanse" Google's database. Google is a probability expert. It disregards property rights and merely runs a probability risk analysis: 1) what is the probability that we will end up on someone's property in violation of their rights? 2) if we do, what is the probability that they will actually discover it? 3) if they do actually discover it, what is the probability that they will care? 4) if they do care, what is the probability that they will not be satisfied with our removal system? 5) if they are not satisfied, what is the probability that they will start to enforce their rights? 6) if they do start to enforce their rights, what is the probability that we will ultimately have to pay any money? 7) if we do have to pay any money, what is the probability that the amount will have a material negative impact on our $30B in net worth, in light of any injured party's average claim? Let us at least admit the game. people. There are no accidents. The Google people are very smart

Google places burdens onto each of us --

indeed, onto society generally -- to fix the problem that it has chosen to create, at our cost, and for its own profit. Google argues that we have

to take our own time to correct their mistake, and their mistake only occurred to save their own time. Google thinks only its time is money. Indeed,

It may be just a little time from everyone, but it adds up.

it ends up in Google's pocket for their use and benefit -- at least until we happen to discover it, stop the happiness we are otherwise trying to pursue, and use our training and valuable equipment to make the special request to opt out. ____________________________________________ The infraction by Google is now less important that the error in dismissing the case, because the particular has become the policy: It is one thing that even one drop of my blood is extracted for the profit of another; it is an entirely different thing if the law should permit it.

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If the Magistrate Judge is correct, then the law is that Google's acts are effectively legally permitted, at least in this jurisdiction. They are permitted, even if Google should do them as part of a business strategy, and with the flagrant impunity of a demurrer's "so what." The

Magistrate Judge does not make Google obliged to answer for its actions, nor does the Magistrate Judge even allow the Borings equitably to claim that the pictures must be destroyed. The ruling of the Magistrate Judge leaves private property owners helpless and creates an implied servitude on the land. Indeed, the acts

are not only effectively permitted for Google, but, by equal protection of the law, are also permitted to countless other profiteers, driving up and onto the Borings' "private" property, seriatim. No matter what circuitous

legal bait Google may offer this Court in this appeal; that is the legal effect. ____________________________________________ Although the principles of private property and trespass are an inherent part of our American heritage, this is the first time that a private enterprise has the money, the technology, and the information -- that is, the raw power in the new age of our existence -- to contend so deeply against our guaranteed individual rights, as a social phenomenon. Google is a young darling in the world of corporate enterprise. But, if we should be vigilant to see it, this baby behemoth has not even yet hit its stride, or is even toddling. Google already controls money, And, it is just getting

technology and information, throughout the world. started.

We applaud Google's success, with only the reasonable condition

that Google's commercial and social omnipotence be checked and balanced where providence permits.

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A jury of the People can weigh the relative social value of private property versus the intrusions of technology. Google simply needs to an-

swer for its actions, defend its policies and testify to the quality of its database. Indeed, that it has been and is careful with our rights.

There is no one, and no law firm, that supports and applauds technology and entrepreneurial ventures more than the undersigned. is our name. To wit, it

But, there is a point at which the Entrepreneurial Spirit

must attorn to the American Dream it serves, and pay rent.

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STATEMENT OF THE FACTS The Borings live at 1567 Oak Ridge Lane; their home is on a private road, and it is not visible to the public eye, being surrounded by trees. The property is secluded, with a clearly marked "Private Road No Trespassing" sign. The Borings had an expectation of privacy. [Complaint, ¶¶1,

5-6, 9, 10, 11; A30-35] Google has a "Street View" service, the scope of which is to gather pictures of paved non-private roads, using mounted cameras on vehicles. [Id., ¶¶7-8] The Borings discovered that Google trespassed, and, while on the Borings' very driveway without authorization, Google took close-up pictures of their residence, including the recent additions and the swimming pool. [Id., ¶¶9, 17] Google drove on the private drive, past the clearly

marked "Private Road No Trespassing" signage onto the Borings driveway, with its vehicle packed with cameras, in close proximity to the residence, garage and swimming pool, and recorded the secluded surroundings. ¶¶7, 8, 9, 11, 13, 15] The invasion to seclusion was substantial; learning that Google had trespassed onto their private road (1,000 feet of crunching gravel and potholes), past "Private Road No Trespassing" signage, entered property unbeknownst to the Borings, driving close up to the residence and swimming pool, and taking photographs that were published worldwide, was highly offensive and a disregard of the Borings' privacy interests. 9, 11, 13]. [Id. ¶¶7, 8, [Id.,

The Borings purchased their home for a considerable sum of

money, and privacy and seclusion of the home was a major component to purchase the property. [Id., at ¶5]

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Publication of close-up photographs, including the Borings' swimming pool, was not authorized or desired, and exposes the Borings and their family to additional undesired life risks, including based upon new methods of data access and dissemination, contrary to their posted and desired seclusion; the imposition is not of their choosing. [Id., at ¶15].6 Google failed to take proper measures to prevent the conduct, and does not implement appropriate controls or filtering prior to publication. [Id., at ¶15, 24, 26, 28] Google profits by the conduct. [Id., at ¶27]

The Borings incurred mental suffering, diminishment of market value, consequential damages, punitive damages, compensatory damages, incidental damages, and all other damages deemed to be just after discovery and trial. [Id., at 14, 15, 24; each Count's Prayer for Relief]

STATEMENT OF RELATED CASES There are no related cases and this case has not been previously reviewed.

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For example, many people have children and grandchildren. Certainly, the children and grandchildren exist in the world, and their physical likeness is public information. But, parents and grandparents decide whether or not to publish pictures of the children on Facebook and MySpace, for example. This is not an issue of legal theory, it is one of practicality in the new world of data accessibility and dissemination: one does not need to be forced to "show its gold to thieves" when it chooses to be relatively secluded from something. It is about free choice. For this reason, as a practical matter, even government agencies, such as Allegheny County, PA, have reduced the online accessibility of public data. Even though the data is public information, the ease of access and dissemination yields its own independent problems and legal interests in our new shrinking world, as a practical experiential matter. This may be why the Chief Judge of the United States District Court for the Western District of Pennsylvania requested removal of the public information names of approximately 100 judges from the Allegheny County website. The interest served does not relate to the public nature of the data, but is one of practical judgment guided by experience: ease of access and dissemination. 12

SUMMARY OF THE ARGUMENT The fact scenario is so basic that there is no need to restate matters contained in the Summary of the Case and/or Statement of the Facts. The Magistrate Judge concluded, "Plaintiffs have failed to state a claim under any count" and "any attempted amendment would be futile." [Opinion, at 1, A4; at 12, A15] There are two general analytical categories for pleading: 1) the defendant's conduct; and 2) the damage. A combination of pleading one or

both of these categories forms elements of the claim. Conduct. Google's conduct in this case is straight-forward. The Boring have

nothing remaining to plead from a "short and plain" perspective, pursuant to F.R.C.P. 8(a). Certainly, Google is on fair notice to frame a defense

that its vehicle was not on the property, that the driver did not take close-up 360° pictures, and that the pictures were never published. By way of example, in a bodily trespass case, whether a person actually touched another may be a point of dispute; that is, whether or not the conduct occurred. But, here, the defense is not to the Borings' case

in chief, but, if at all, by an affirmative defense claimed by Google for which Google has the burden of proof. For example: Google admitting it

was on the property, took the pictures, and commercially published them; however, a claim that liability is excused because: there was no gate or guard dog, the entry was trivial, that Google is effectively a mail carrier or a person turning simply around in a driveway. The irony is that, for the trespass count, for example, the Borings would expect almost to be assured summary judgment on liability with bifurcation of the trial for damages only. 13 Requests for Admission on the

trespass count would almost assuredly prove liability, but for survival of any affirmative defenses. Damages. The Magistrate Judge's ruling is centered on damages. Certainly, And, that brings us to damages.

from a conduct perspective, the Borings pleaded exactly the wrongful conduct that, if accepted as true, states the claim. However, the Magistrate

Judge finally adjudicated all damage issues and denied all counts, with the googled information in mind, finding damages "hard to believe" on a convincing fact standard of pleading for damages (not conduct),7 while, at the same time, ruling that amendment of the pleading would be futile. [Opinion, at 12; A15] Regarding the trespass count, and as a result of the same presuppositions and improperly drawn inferences, the Magistrate Judge ruled that the Borings, at the pleading stage, had to waive any claim to compensatory damages as a matter of law in order to proceed, without even the benefit of discovery or expert assessment. [Opinion, 8-9; A11-12] This is so,

even though the Magistrate Judge also ruled that damages are not part of a prima facie claim for trespass.8 Pleading damages is different than pleading conduct, and elements of claims are distinct in this regard: damage is not a prima facie element of all causes of action; in some cases, damages are presumed as unified and self-perfected within the conduct itself. For example, conduct in the na-

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Opinion, at 4; A7 ("[I]t is hard to believe"; "Plaintiffs have not alleged facts to convince the Court otherwise.") The Magistrate Judge begs the ultimate jury determination and clearly fails to draw the proper inference. See F.R.C.P. 54(c) ("Every [non-default] final judgment should grant relief to which each party is entitled, even if the party has not demanded that relief in its pleading"). 8 Reconsideration Opinion, dated April 6, 2009 [hereafter "Reconsideration"] at 8; A11 ("[D]amages are not part of a prima facie claim for trespass.") 14

ture of a trespass to body or property is inherently legally unpermitted. But, for example, the conduct of an unsterilized doctor might or might not be legally unpermitted: the conduct and damage are not unified; the prima facie claim depends upon a conditional secondary event of damage, and the satisfaction of that condition must be pleaded to perfect the claim. Moreover, wrongful conduct can be asserted and defended at the onset, but the pleading of damages, with assessments and categorizations, can be sophisticated and may require expert assessment after discovery and the adducement of evidence.9 Also, at the inception of a case, a trial

judge may be incompetent to pre-judge the merits of a damage claim, particularly when discovery has not occurred, and the trial judge must, whether personally agreeing or not -- or finding difficult or "hard to believe" or not10 -- exercise the judicial discipline and restraint to allow a plaintiff a full and fair opportunity to make its case and claim without prejudgment. To use the trespass to body example again, a person may be groped; but it is a point of discovery and expert damage assessment if the data taken from the groper's trespass is not for pleasure, but is the acquisition of data to be used in a commercial environment. For example, it

might be that the groper supplies the clothing industry with data, and is paid for the individualized body statistic. If the groper required data

for its commercial purpose, and used the data for its commercial endeavor and for its profit, there is no basis to prejudge that the groper "took"

See, generally, Black's Legal Dictionary 9th, "Damages" (two and onehalf pages of damage categories); see also F.R.C.P. 54(c). 10 See, Opinion, at 4, A7 ("hard to believe"); this is not a proper legal standard for the truth sought to be proved; to wit, many things that are true are hard to believe; see 2009 Federal Rules Handbook, 12(b)(6), 429 ("No claim will be dismissed merely because the trial judge disbelieves the allegations or feels that recovery is remote or unlikely.") 15

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nothing, as the Court below opined; it is inferred, if not self-evident, that the data has value from the specific intent and conduct.11 Whether an expert can attribute compensatory damage related to the value of the data in a profit-environment is a point for the expert, after discovery, and pre-trial motion practice in due course.12 Certainly, the groper who needs the data should have negotiated for the data, but, of course, that might raise questions about the scope of use and particulars, and it would take time and cost money. So, the

groper wrongly avoids the negotiation, and gropes for exactly the value desired, and by commercializing the wrongfully acquired data, makes its profit.13 For a judge to presuppose compensatory damages cannot be claimed or calculated, when the defendant is a commercial enterprise commercially using the fruits of the alleged tortuous conduct for which there was specific intent to acquire, is both clearly an improper inference and a pre11

Opinion, at 10 ("It cannot fairly be said that the Borings conferred anything of value upon Google. The entire thrust of the Borings' allegations is that Google took something from the Borings without their consent, and should be liable for having done so.") This is another telltale sign of the Magistrate Judge's presupposition and error. In 2009, it is not about taking trees, as it might have been in 1899. 12 Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). Compensatory damages is a damage completely separate in purpose from punitive damages. If the groper promises not to do it again, improves controls and spends millions to create general social affinity by giving away free clothing, it may be that punitive damages are not awarded, but the groper still sits on profits for which payment has not been made to compensate the provider of the data. It may even be that the groper uses the profit acquired by the wrongful deeds to create that social affinity. The compensatory damage for pain and suffering may also be applicable if the person groped perceives it; but, the compensation for the value of the data is a different interest and a different measure. The Borings should not have to waive compensatory damages, as a matter of law, at the pleading stage, because the Magistrate Judge does not yet see or does not properly draw the inference of a compensatory value to be presented by an expert. 13 Certainly, the groper may assert affirmative defenses, such as the grope is exactly the same conduct of a doctor, or that there was no protective gear, or that it was trivial, or that the groper was involuntarily pushed into the touch. 16

sumes the perfect pre-discovery professional competence of the judge to determine the legal and factual impossibility of the damage assertion. Indeed, the Restatement of Restitution 2d (Draft) sets forth: § 40. Trespass and Conversion, Comment b. Measure of Recovery. ...Restitution is justified in such cases because the advantage acquired by the defendant is one that should properly have been the subject of negotiation and payment...The more difficult issues of valuation are accordingly those in which the defendant has made a use of the claimant's property for which there is no ordinary market; or in which the defendant has bypassed any market by taking without asking, or by proceeding in the face of a refusal. Valuation in such cases resists any precise formula, and courts exercise a wide discretion in fixing a price for the benefit in question--in other words, a measure of liability--that will correspond to the unjust enrichment of the defendant. The one constant factor in such cases is that values will be more liberally estimated against a conscious wrongdoer... Id., §40. According, the Magistrate Judge's drew improper inferences, using invalid information, and begged exactly the damage question that the Borings assert they are entitled to an inference to prove.

17

ARGUMENT I. THE STANDARD OF REVIEW 1. The Standard of Review for Third Circuit.

This appeal arises from the Magistrate Judge's granting of Google's F.R.C.P. 12(b)(6) demurrer on all counts, dismissing the entire action with prejudice. The standard of review for a dismissal under Fed.R.Civ.P. 12(b)(6) is de novo. Phillips v. County of Allegheny, et. al., 515 F.3d 224; 2008

U.S. App. LEXIS 2513 (3rd Cir. 2008), quoting, Omnipoint Communications Enters., L.P. v. Newtown Township, 219 F.3d 240, 242 (3d Cir. 2000); see In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 461 (3d Cir. 2000) ("de novo means [that] ... the court's inquiry is not limited to or constricted by the record ... nor is any deference due the ... conclusions [under review]"). 2. The Standard of Review for F.R.C.P. 12(b)(6).

The standard of review for a dismissal under F.R.C.P. 12(b)(6) is to accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief. Phillip, 515 F.3d at 231, citing, Pinker v. Roche Holdings Ltd.,

292 F.3d 361, 374 n.7 (3d Cir. 2002); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, at 1969 n.8, 167 L. Ed. 2d 929 (2007); Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003). Moreover,

in the event a complaint fails to state a claim, unless amendment would be futile, the District Court must give a plaintiff the opportunity to amend the complaint. Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).

18

Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." the Phillips, 515 F.3d at 231. is not whether the In considering a motion to dismiss, ultimately will prevail but Nami

issue

plaintiffs

whether they are entitled to offer evidence to support their claims. v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (emphasis added).

II. INCORPORATION BY REFERENCE. Certain facts and argument were stated in the Statement of the Case, Statement of the Facts and Summary of Arguments. In all prudence and cau-

tion those sections are hereby incorporated into each of the following Sections III through VII, inclusive, as if again restated therein.

III. INVASION OF PRIVACY. The Magistrate Judge erred in determining, as a matter of law on a 12(b)(6) demurrer, that a reasonable person would be not be highly offended or incur mental suffering, shame or humiliation, having discovered that someone recently entered onto secluded private property, took 360° pictures within and while close-up on the driveway close to the home and swimming pool (close to the home windows), while ostensibly trespassing, after also trespassing and driving far down a privately maintained graveled road and past "Private Road No Trespassing" signage, having published the pictures throughout the world via the trespasser's pervasive proprietary index system; and FURTHER erred by failing to view plaintiffs' averments, and reasonable inferences drawn therefrom, in the light most favorable to the plaintiffs; erred in considering the tortfeasor's removal weblinks with failure to consider the cost and burden upon the injured party to be required to discover and to mitigate within the technological constraints imposed by the tortfeasor; erred in using permissible conduct of plaintiffs, during the course of this civil action, after the fact, as evidence of damage averments before the fact, including that this action was not filed under seal; and erred in using unspecified lack of "claims," in unspecified jurisdictions, with unspecified facts, to draw invalid conclusions that tortfeasor's "Street View" is viable as part of a prima facie pleading ruling; and erred in accepting extrinsic evidence from the Court's own unilateral "Googling" activities regarding plaintiffs' counsel. 19

The Borings' statement of facts, if accepted as true, satisfy a short and plain statement of facts to state a claim for relief, pursuant to F.R.C.P. 8(a). To the Borings' averments, the Magistrate Judge stated that facts must be alleged that the intrusion "could be expected to cause mental suffering, shame or humiliation to a person of ordinary sensibilities."

[Opinion, pg. 4, A7].

Yet, the Magistrate Judge finally adjudicated the

entire claim against Plaintiffs at the pleading stage, stating: While it is easy to imagine that may whose property appears on Google's virtual maps resent the privacy implications, it is hard to believe that any ­ other than the most exquisitely sensitive ­ would suffer shame or humiliation. The Plaintiffs have not alleged facts to convince the Court otherwise. [Id. (emphasis supplied)] Contrary to the Borings pleading of the conduct

to state the claim, the Magistrate Judge required additional factual allegations of the damage on a "convince" standard. The Magistrate Judge,

clearly by presupposition, gave little weight to the seclusion that the Borings intend to prove. Seclusion is not absolute, but relative: that Because children's faces are public at some The

is, seclusion from something.

degree does not mean seclusion is waived to Google for all degrees.

Magistrate Judge draws from no precedent applicable to these facts, nor can that be accomplished without discovery and trial. Nevertheless,

clearly the Magistrate Judge did not view the facts in a light most favorable to the Borings. Even a more egregious error of law, the Magistrate Judge then further opined, without any legal basis whatsoever, and no factual references whatsoever: Although the Plaintiffs have alleged intrusion that was substantial and highly offensive to them and have asserted that others would have a similar reaction, they have failed to set out facts to sub20

stantiate the claim. This is especially true given the attention that the Borings have drawn to themselves and the Street View images of their property. The Borings do not dispute that they have allowed the relevant images to remain on Google Street View, despite the availability of a procedure for having them removed from view. Furthermore, the have failed to bar others' access to the images by eliminating their address from the pleadings, or by filing this action under seal. "Googling" the name of the Borings attorney demonstrates that publicity regarding this suit has perpetuated dissemination of the Borings' names and location, and resulted in frequent re-publication of the Street View images. The Plaintiffs' failure to take readily available steps to protect their own privacy and mitigate their alleged pain suggests to the Court that the intrusion and the [sic] their suffering was less severe than they contend. Id at 4-5. The Magistrate Judge opined that the Borings should have filed As

under seal, without any legal basis whatsoever for the proposition.

stated above, the Magistrate Judge conducted "googling" of the attorneys' activities in this case, on a 12(b)(6) demurrer.14 Google is the defen-

dant, and the Court admits using the defendants' indexing methods to make determinations on matters of law; there are no references whatsoever. The Magistrate Judge does not cite to the record, nor articulates any fact underlying the finding, so the Borings are clearly prejudiced in not even being able to definitively tell this Court exactly what the Magistrate Judge reviewed to make its ruling; the ruling is completely unfastened by references and is, therefore, tantamount to improper speculation and reverse inference. The Magistrate Judge's "Googling" efforts under-

mines confidence in the entire legal process because a party plaintiff should not have to proceed in fear that a neutral judge is going to make determinations based upon research of activities off the record. happened is as concerning as why it happened. Moreover, "[a]ny illegal entry would be sufficiently serious and offensive to state a claim for invasion of privacy." Brunette v. Humane SoThat it

14

The Magistrate Judge clearly set forth the standard of review under F.R.C.P. 12(b)(6).

21

ciety, 40 Fed.Appx. 594, 2002 U.S.App. LEXIS 13169 (9th Cir. 2002); see also Dietemann v. Time, Inc., 449 F.2d 245, 247-249 (9th Cir. 1971) (finding invasion of privacy where reporter entered and photographed the plaintiff at home without authorization). The Magistrate Judge stated that amendment of the pleading would be futile. [Opinion, pg. 12, n. 8, A15] quires additional facts to be pleaded. And, yet, the Magistrate Judge re-

IV. TRESPASS. The Magistrate Judge erred in prejudging that compensatory damages are not available as a matter of law; and FURTHER erred in requiring pleading damages when, at the same time, opining that damages are not an element of a prima facie claim; and erred in holding that plaintiffs had a special duty to plead nominal damages in the complaint and that plaintiffs were required to forfeit any claim to compensatory damages at the pleading stage without the aid of discovery or the benefit of expert review. The Magistrate Judge ruled that: The Court considers this argument in order to eliminate any possibility that the language of its Memorandum Opinion addressing Defendant's Motion to Dismiss might be read to suggest that damages are part of a prima facie case for trespass. Clearly, they are not. The tort is complete once there has been an unprivileged intentional entry upon property in the possession of another. See Graham Oil v. BP Oil Co., 885 F. Supp. 716, 725 (W.D.Pa. 1994). [Reconsideration, at 2; A18] So far, so good; the Borings pleaded the But,

conduct constitutes an intentional trespass [Complaint ¶17, A32]. then the court proceeded to state immediately thereafter:

What the Court did hold was that the Borings, in their Amended Complaint, failed to allege facts sufficient to support a plausible claim that they suffered any damage as a result of trespass. [Id.] Plaintiff met its prima facie pleading burden, only to have not met

it in the next sentence based upon the Magistrate Judge's requirement of

22

additional pleading.15

The authority cited is equally misguided.

The

Magistrate Judge cited the 1899 case of Morris & Essex Mut. Coal Co., v. Delaware, L. & W.R. Co., 42 A. 883, 884 (Pa. 1899) for the proposition that only nominal damages and not compensatory damages are available. However, that case expressly, on its own terms, is inapplicable to this case; to wit, "The whole proceeding was to recover damages based, not upon a wrongful invasion of the plaintiff's rights, but upon an act of assembly..." Morris, at 445. The Magistrate Judge cited Bastian v. Marienville Glass Co., 126 A. 798 (Pa. 1924) affirming the trial court's instruction for defendant because plaintiff failed to provide proof of actual damages, and although nominal damages may have been permitted, plaintiff failed to plead them. First, this case was in assumpsit, in Pennsylvania state court, subject to fact pleading rather than notice pleading requirements. Second, more im-

portantly, the posture of the case was "[a]fter the pleadings had been closed and discovery completed." Id., at 140. In that case, plaintiff was

given a full and fair opportunity to adduce evidence of damage, and it was expressly stated as inapplicable where "a property right involved." Lastly, the Magistrate Judge's reliance on Cohen v. Id.

Resolution

Trust, No. 03-2729, 107 Fed. Appx. 287, (3rd. Cir 2004), is equally inapplicable. In Cohen, this Third Circuit Court held that nominal damages

were waived not having been requested through and including at trial, but this Court did so only after providing a full and fair opportunity for plaintiff to make a case to prove compensatory damages. Id., at 288. It

is noted that this was expressly not a property rights case, where damages

See, generally, Summary of Argument (distinguishing conduct and damage); See Opinion, at 3; A6 (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007) "the [proscribed] conduct") 23

15

are presumed.

Certainly, if the Borings cannot sustain a claim for com-

pensatory damages after full and fair discovery, and if the Borings do not seek leave to amend for nominal damages, and if such a request would be necessary for this property rights case, the applicability of Cohen can be revisited as applicable in due course. It is the substantive law of this Commonwealth that it is not necessary to allege any actual injury or damage as an element of the claim: There is no need to allege harm in an action for trespass, because the harm is not to the physical well-being of the land, but to the landowner's right to peaceably enjoy full, exclusive use of the property. Jones v. Walker, 425 Pa.Super. 102, 109 (Pa.Super. 1993); see, Houston v. Texaco, Inc., 371 Pa.Super. 399, 538 A.2d 502 (1988), alloc. den., Pa. 575, 549 A.2d 136 (1988). Torts, §158, 163. 520

Moreover, see Restatement (Second) of

Section 158 states as follows:

One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionally (a) enters land in the possession of the other, or causes a thing or a third person to do so... Id. (emphasis added). And, in Goodrich Amram, Summary of Pennsylvania Ju-

risprudence 2d, § 23:1, it is further stated: Under this definition, one who intentionally and without consensual or other privilege enters land in possession of another or causes anything or a third person to do so is liable as a trespasser irrespective of whether harm is thereby cause to any legally protected interest. Id. (emphasis added). See also, Pennbaur v. City of Cincinnati, 745

F.Supp. 446 affirmed 947 F.2d 945 (S.D.OH 1990) (every unauthorized entry upon land of another constitutes a trespass, and regardless of whether the owner suffered substantial injury, he at least sustains legal injury which entitles the owner to verdict for some damages); accord Gavcus v. Potts, 808 F.2d 596 (7th Cir. 1986); Hoffman v. Vuilcan Materials Co., 91 F.Supp.

24

2d 881 (M.D.NC. 1999); Wilson v. Amoco, 33 F.Supp.2d 969 (D. Wyo. 1998); Cook v. Rockwell Int'l., 273 F.Supp 2d 1175 (D.Colo. 2003); Lugue v. Hercules, 12 F.Supp. 2d 1351 (S.D.Ga. 1997). The Magistrate Judge originally opined that the Plaintiffs "do not describe damage to or interference with their possessory rights." [Opinion, at 8; A11]. In clear error to Walker, the Magistrate Judge merely

cited to a district court case for the ever-present standard proposition that liability is imposed for damages caused, to wit: "See N.E. Women's Ctr., Inc. v. McMonagle, 689 F.Supp. 465, 477 (E.D.Pa. 1988)." at 8; A11]. [Opinion,

The indirect citation to Kopka v. Bell Tel, 91 A.2d 232, 235

(1952) stands for the same proposition. The fact that the District Court of Philadelphia stated the positive proposition that, "a trespasser is responsible in damages for all injurious consequences which are the natural and proximate result of his conduct," does not make the negative inverse proposition true. That is, that

without physical damage, there is no liability; or, that the damage must be pleaded or the case dismissed.16 While a trespasser is responsible in

damages for all injurious consequences which are the natural and proximate result of his conduct, this is not the same as opining that a plaintiff, in a trespass action, has to establish actual damages to maintain the action at the initial pleading.17 In N.E. Women, the Court was merely not

16

E.g., "If you are hungry, then you eat" does not create the truth of the inverse negative proposition, "You cannot eat unless you are hungry." The question is not whether damages must be proximate at the post-trial point of award. The question is whether they must be pleaded as a an element and/or whether a plaintiff must waive a claim for compensatory damages to proceed in trespass.

Post discovery, defendants in N.E. Women contended that the Court erred by permitting the jury to award plaintiff damages for injury to its business as well as injury to its property under the trespass claim. The defendants argued that they should only be required to pay for the actual 25

17

limiting plaintiff to actual damages to real property.

Moreover, impor-

tantly, the Court still let the jury decide whether the damages flowed from the trespass.18 sets forth as follows: § 40. Trespass and Conversion: (1) A person who obtains a benefit by an act of trespass or conversion, is accountable to the victim of the wrong for the benefit so obtained. (2) The measure of recovery depends on the blameworthiness of the defendant's conduct. As a general rule: (a) a conscious wrongdoer, or one who acts despite a known risk that the conduct in question violates the rights of the claimant, will be required to disgorge all gains (including consequential) derived from the wrongful transaction. Comment b. Measure of Recovery. ...In consequence, a conscious wrongdoer may be liable to disgorge more than the value of what was taken or obtained in the first instance. ... Restitution is justified in such cases because the advantage acquired by the defendant is one that should properly have been the subject of negotiation and payment....The more difficult issues of valuation are accordingly those in which the defendant has made a use of the claimant's property for which there is no ordinary market; or in which the defendant has bypassed any market by taking without asking, or by proceeding in the face of a refusal. Valuation in such cases resists any precise formula, and courts exercise a wide discretion in fixing a price for the benefit in question--in other words, a measure of liability--that will correspond to the unjust enrichment of the defendant. The one constant factor in such cases is that values will be more liberally estimated against a conscious damage to plaintiff's real property, not for any injury to plaintiff's business. The Court found that it "sees no valid reason why a trespasser could not be held liable for injuries to his or her business which are properly found by a jury to be the proximate cause of the trespass. If plaintiff's alleged injuries to business were not the consequence of defendants actions, the jury would have found that they were not the proximate cause of defendants' actions. Plaintiff's injuries as alleged and proven were not unduly indirect or remote from defendants' trespass. Therefore, defendants' motion on this ground is denied." N.E. Women, at 477.
18

The Restitution and Unjust Enrichment 2d (Draft)

In the dicta of footnote 4 of the Opinion [A11], this Magistrate Judge referenced the case of Costlow v. Cusimano, 34 A.D.2d 196; 311 N.Y.S.2d 92 (1970). That case is inapplicable as it is a citation to the New York state court, which is applying the rules of procedure and body of law for that state court forum, rather than this Federal court forum, using the substantive law of the State of New York. Most importantly, the State of New York uses a form of fact pleading, superseded by the Federal Rules.

26

wrongdoer.. . . A conscious wrongdoer ought not to be left on a parity with a person who, in pursuing the same objectives, respects legally protected rights of the property owner, since if liability in restitution were limited to the price that would have been paid in a voluntary exchange, the calculating wrongdoer would encounter no incentive to bargain. By this reasoning, a benefit taken by a conscious wrongdoer is properly valued at a price greater than the cost of the negotiated transaction that the defendant wrongly elected to bypass. Id.; see also, Jacque v. Steenberg Homes, 209 Wis. 2d 605; 563 N.W.2d 154, 159-162 (1997). Certainly, federal notice pleading, with a general prayer

for relief, at the pleading stage, prior to discovery, and in light of the fact that nominal damages are the subsumed within other damage claims (being only $1), and in light of the presumption of damages in trespass, the Magistrate Judge erred to have dismissed the claim. V. UNJUST ENRICHMENT. The Magistrate Judge erred in ruling as a matter of law that i) the relationship between the parties must be construed as contractual, ii) that the Borings did not confer anything of value on Google and iii) that there is no independent cause of action for unjust enrichment being subsumed by the other claims, particularly when the other claims were dismissed. The Magistrate Judge ruled, "there was no relationship between the parties that could be construed as contractual. It cannot be fairly said [Opinion, at

that the Borings conferred anything of value upon Google." 9-10]

For the reasons stated upon, the Magistrate Judge presupposes

against the Borings the very inference that the Borings require for their claim. Although it may be that a surviving trespass count would subsume the substance of this claim, the trespass count must survive to do so; otherwise unjust enrichment is appropriate claim. Valuation in such cases resists any precise formula, and courts exercise a wide discretion in fixing a price for the benefit in question--in other words, a measure of liability--that will correspond to the unjust enrichment of the defendant. 27

Restatement of Restitution 2d (Draft).

The Borings properly satisfy the

standard, and the same have been pleaded: (1) benefits conferred on defendant by plaintiff; (2) appreciation of such benefits by defendant; and (3) acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. Lackner v. Glosser, 892 A. 2d 21, 34 (Pa. Super 2006).

VI. PUNITIVE DAMAGES The Magistrate Judge erred in holding punitive damages are not available as a matter of law even though pleaded and evidence is in the possession of defendant. In addition to dismissing all counts, the Magistrate Judge also ruled that the "allegations in the Amended Complaint fail to establish a plausible claim of entitlement to punitive damages." 4; A20] [Reconsideration, at

However, with regard to punitive damages, the Pennsylvania Su-

preme Court has delineated the clear purpose as a jury question: In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct. Kirkbride v. Lisbon Contractors, 521 Pa. 97, at 103-4, 555 A.2d 800 (1998). Determining punitive damages is a jury function to determine af-

ter discovery, and the Borings are entitled to all inferences.

The determination that punitive damages are not warranted because the Borings do not point to aggravating or outrageous conduct begs the question. The Borings averred entry onto property without permission

(which is also crime), pursuant to a calculated scheme of approach, substantiating a claim for punitive damages. The Borings are entitled

to discovery to prove that the acts are not mere "accidents" but are

28

reckless disregard of rights with a profit-motive as stated in the Summary of the Case. The question must be reserved the jury because

discovery may yield information that bears on the question and the initial inference. intoxicated, or For example, discovery may show that a doctor was Google's policy was to consciously disregard

that

property rights.
Furthermore, the Pennsylvania Supreme Court has stated: If the purpose of punitive damages is to punish a tortfeasor for outrageous conduct and to deter him or others from similar conduct, then a requirement of proportionality defeats that purpose. ... In making its determination, the jury has the function of weighing the conduct of the tortfeasor against the amount of damages which would deter such future conduct. In performing this duty, the jury must weigh the intended harm against the tortfeasor's wealth. If we were to adopt the Appellee's theory, outrageous conduct, which only by luck results in nominal damages, would not be deterred and the sole purpose of a punitive damage award would be frustrated. If the resulting punishment is relatively small when compared to the potential reward of his actions, it might then be feasible for a tortfeasor to attempt the same outrageous conduct a second time. If the amount of punitive damages must bear a reasonable relationship to the injury suffered, then those damages probably would not serve as a deterrent. It becomes clear that requiring punitive damages to be reasonably related to compensatory damages would not only usurp the jury's function of weighing the factors set forth in Section 908 of the Restatement (Second) of Torts, but would also prohibit victims of malicious conduct, who fortuitously were not harmed, from deterring future attacks. Kirkbride v. Lisbon Contractors, 521 Pa. 97, at 103-4, 555 A.2d 800 (1998) (emphasis added). Moreover, the Supreme Court of Wisconsin also

eloquently stated the socio-philosophical policy behind punitive damages in a trespass count: [Plaintiffs] argue that both the individual and society have significant interests in deterring intentional trespass to land, regardless of the lack of measurable harm that results. We agree with the [plaintiffs].... [T]he United States Supreme Court has recognized that the private landowner's right to exclude others from his or her land is "one of the most essential sticks in the bundle of rights that are commonly

29

characterized as property." Dolan v. City of Tigard, 512 U.S. 374, 384, 129 L. Ed. 2d 304, 114 S. Ct. 2309 (1994); (quoting Kaiser Aetna v. United States, 444 U.S. 164, 176, 62 L. Ed. 2d 332, 100 S. Ct. 383 (1979)). Accord Nollan v. California Coastal Comm'n, 483 U.S. 825, 831, 97 L. Ed. 2d 677, 107 S. Ct. 3141 (1987) (quoting Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 433, 73 L. Ed. 2d 868, 102 S. Ct. 3164 (1982). ... [B]ecause a legal right is involved, the law recognizes that actual harm occurs in every trespass. The action for intentional trespass to land is directed at vindication of the legal right. W. Page Keeton, Prosser and Keeton on Torts, § 13 (5th ed. 1984). The law infers some damage from every direct entry upon the land of another. Id. The law recognizes actual harm in every trespass to land whether or not compensatory damages are awarded. Id. Thus, in the case of intentional trespass to land, the nominal damage award represents the recognition that, although immeasurable in mere dollars, actual harm has occurred. . . . Society has an interest in punishing and deterring intentional trespassers beyond that of protecting the interests of the individual landowner. Society has an interest in preserving the integrity of the legal system. Private landowners should feel confident that wrongdoers who trespass upon their land will be appropriately punished. When landowners have confidence in the legal system, they are less likely to resort to "self-help" remedies. In McWilliams, the court recognized the importance of "'preventing the practice of dueling, [by permitting] juries to punish insult by exemplary damages.'" McWilliams, 3 Wis. at 381. Although dueling is rarely a modern form of self-help, one can easily imagine a frustrated landowner taking the law into his or her own hands when faced with a brazen trespasser, like [defendant], who refuses to heed no trespass warnings.... If punitive damages are not allowed in a situation like this, what punishment will prohibit the intentional trespass to land? Moreover, what is to stop [defendant] from concluding, in the future, that [it] is not more profitable than obeying the law? . . . An appropriate punitive damage award probably will. In sum, as the court of appeals noted, the Barnard rule sends the wrong message to [defendant] and any others who contemplate trespassing on the land of another. It implicitly tells them that they are free to go where they please, regardless of the landowner's wishes. As long as they cause no compensable harm, the only