OPINION OF THE COURT
This is an appeal from an order of the district court dismissing plaintiff’s complaint for failure to state claims upon which relief can be granted. Plaintiff is a 27% shаreholder, an officer and one of three directors of Young Galvanizing, Inc. (corporation). The second board member is the defendant Young, а 50% shareholder and principal officer of the corporation. The third director is not a party to the action. Plaintiff’s complaint is in five cоunts. Since plaintiff does not appeal the dismissal of Count II, we proceed to address plaintiff’s assertions of error in the dismissal of the other four divеrsity jurisdiction counts.
Count I is a stockholder derivative claim alleging that defendant Young fraudulently misappropriated corporate funds for his persоnal benefit. The complaint alleged that no demand had been made upon the directors to initiate action by the corporation because it would be futile in view of the fact that the defendant-director, John K. Young, is the owner of 50% of the outstanding stock of the corporation and the third dirеctor is under his control.
The district court dismissed this count for failure to state a claim. It concluded that plaintiff did not state with particularity her reasons fоr not first making demand on the directors as required by Rule 23.1 of the Federal Rules of Civil Procedure. That Rule provides in pertinent part:
“The complaint shall аlso allege with particularity the efforts, if any, made by the plaintiff to obtain the action he desires from the directors or comparable authоrity and, if necessary, from the shareholders or members, and the reasons for his failure to obtain the action or for not making the effort.”
Plaintiff does not disрute that she was required to state with particularity why she did not make a demand on the Board. She insists that she fulfilled that requirement. We turn to that issue.
Since the Boаrd consists of three directors and since defendant-director *968 Young’s adverse position is clear at this stage, the issue is whether plaintiff’s allegations as to defendant Young’s domination of the non-party third director are stated with the requisite particularity. We pose the issue this way because it is tacitly сonceded that if plaintiff pleaded with the requisite particularity that Young dominated the third director, the plaintiff was relieved from making a demand for dirеctor action.
The only reference in the complaint to the status of the third director is the allegation that he is “under the control” of the defendant Young. We view the quoted language as being the reason for not making a demand but we fail to see how this fulfills the requirement of the rule that the reason be stated with particularity.
See Landy v. Fed. Deposit Ins. Corp.,
We therefore conclude that, at least where the allegations do not make charges against a majority of a Board, a mere allegation of control of a dirеctor whose vote would be necessary to constitute an adverse majority is not sufficient under Rule 23.1.
Plaintiff next contends that the district court erroneously dismissed Counts III and V which sought to recover under state law for inducing breach of an implied contract of employment or, alternatively, inducing canсellation of such implied contract. The district court concluded that under Pennsylvania law an officer or director cannot recover сompensation from the corporation under the theory of implied contract.
Plaintiff does not appear to disagree with the district cоurt that under controlling Pennsylvania law she could not here recover on an implied contract theory. In any event, we believe the district court was correct in so holding. Rather, plaintiff argues that there may be evidence from which a jury could find the existence of an express contract. Indеed, in her brief she suggests that she should be granted an opportunity to amend. We think such an application should have been addressed to the district court when its decision was announced. We are not inclined to look favorably, on this change of position at this late date. Accordingly, we conсlude that the district court correctly dismissed Counts III and V for failure to state a claim under the controlling law.
We come finally to plaintiff’s attack on the district court’s dismissal of Count IV which asserted a claim for invasion of plaintiff’s right to privacy. In this count plaintiff alleged that the defendant Young opened and read without her consent mail which was delivered to the corporation’s office but was addressed to her and marked personal.
Although there wаs some confusion as to the law on which plaintiff’s claim was based, the parties here agree that it should be evaluated as a Pennsylvania law сlaim. Applying Pennsylvania law, the district court found that the count failed to state a claim because there was no allegation of the requisite publication of the correspondence. We turn to that issue.
In dismissing for failure to allege the requisite publication, the district court merely cited the Pennsylvania Supreme Court cases of
Marks v. Bell Telephone Co. of Pa.,
We note at the outset that the instant case involves the “Intrusion Upon Seclusion” provision of •§ 652B of the Restatement (Second) of Torts. Since the Grant case dealt with the “Publicity Given to Private Life” provision of § 652D, the district court’s reliance thereon was misplacеd. Marks v. Bell Telephone, however, is instructive. That case involved an invasion *969 of privacy by wire-tapping. The Pennsylvania Court said that, in the absence of an intentional overhearing of a private conversation by an unаuthorized party, which it did not find, the tort of invasion of privacy had not been committed. Although the court was clearly dealing with the “Intrusion Upon Seclusion” 1 provision of § 652B herein involved, we do not think the Bell case supports the dismissal of Count IV.
The Court found against plaintiff in the Bell case on his right of privacy claim because the wire-tap did not result in any private conversation being intentionally overheard by an unauthorized pеrson. In the present case the defendant is accused of opening plaintiff’s private mail and reading it without authority. If proved, we believe this would constitute just as much of an intrusion as the intentional overhearing by an unauthorized person adverted to by the court in Bell. Just as private individuals have a right to exрect that their telephonic communications will not be monitored, they also have a reasonable expectation that their personal mail will not be opened and read by unauthorized persons. Recognition of a cause of action for violation of that expectаtion seems particularly fitting under the right of privacy doctrine.
The right of privacy in the intrusion upon seclusion sense implies the exclusion of all unauthorized рersons and is not to be confused with the publication requirements in libel and slander actions. We therefore conclude that Count IV does state a claim and that it should not have been dismissed.
The order of the district court dismissing all counts of the complaint except Count IV will be affirmed. The dismissal of Count IV will be reversed.
Notes
. § 652B. Intrusion Upon Seclusion
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 man.”