United States District Court, M.D. Pennsylvania
For Christina Prukala, Plaintiff: Joseph T. Sucec, LEAD ATTORNEY, Gardners, PA.
For Elle, Defendant: Michael Berry, LEAD ATTORNEY, Levine Sullivan Koch & Schulz, LLP, Philadelphia, PA; Chad R Bowman, Levine Sullivan Koch & Schulz, LLP, Washington, DC.
A. Richard Caputo, United States District Judge.
Presently before the Court is a Motion to Dismiss filed by Defendant Hearst Communications, Inc. (" Hearst" ) (Doc. 3). Hearst moves to dismiss Plaintiff Christina Prukala's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In each count of the Complaint, because Plaintiff has failed to state a claim upon which relief can be granted, Hearst's motion to dismiss will be granted.
The facts as alleged in the Complaint are as follows:
Plaintiff received a series of electronic mail messages on her cellular telephone soliciting, either directly or indirectly, the purchase of services from Defendant. ( Compl., ¶ 10.) The messages indicate that they came from a third-party domain, designed to make it difficult for Plaintiff to block the e-mails or request that they cease. Id. at ¶ 11. Plaintiff did not give implied or express permission to Defendant to contact her mobile telephone " via an automatic telephone dialing system." Id. at ¶ 12. Without permission from Plaintiff, Defendant's actions are " directly violative of 73 P.S. 2250.3(b), regarding use of a 'covered mobile telephone system' to transmit an unsolicited email." Id. at ¶ 13. The misleading character of the subject header of each email " is directly violative of 73 P.S. 2250.3(a)(3)." Id. at ¶ 14. The Complaint states that " [s]aid unsolicited voice mail messages  placed to Plaintiff's cellular telephone was to a cellular telephone service for which Plaintiff incurs a charge. Further, the emails were not for emergency or any other legitimate purpose."
Id. at ¶ ¶ 16-17. The Complaint also states that Plaintiff brings this action " on behalf of himself [sic] and on behalf of all others similarly situated" and contains additional class allegations. Id. at ¶ ¶ 18-31.
Based on the foregoing, Plaintiff commenced this action in the Court of Common Pleas of Lackawanna County, Pennsylvania. (Doc. 1, Ex. A.) The Complaint consists of six counts. Counts I and II both assert violations of the Unfair Trade Practices and Consumer Protection Law (" UTPCPL" ). ( Compl. ) Count III asserts a violation of the Telephone Consumer Protection Act (" TCPA" ). Id. Count IV asserts a state law claim of invasion of privacy. Id. Count V asserts a state law claim of intentional infliction of emotional distress. Id. Finally, Count VI asserts a state law claim of harassment. Id.
On January 21, 2014 the action was removed to this Court. On January 28, 2014, Hearst moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion to ...