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Archavage v. Professional Account Services, Inc.

United States District Court, M.D. Pennsylvania

March 29, 2017

STEVEN ARCHAVAGE, on his own behalf and on behalf of all other similarly situated, Plaintiffs,
v.
PROFESSIONAL ACCOUNT SERVICES, INC., Defendant.

          MEMORANDUM

          JOSEPH F. SAPORITO, JR. U.S. Magistrate Judge

         On January 25, 2016, this civil action was initiated by Steven Archavage on his own behalf and on behalf of all others similarly situated in the Court of Common Pleas of Luzerne County filed to Docket No. 2016-566. Archavage named Professional Account Services, Inc. (“PAS”) as the defendant. PAS is a debt collector in the business of collecting debts. (Doc. 2 ¶ 17). In his complaint, Archavage asserted several Pennsylvania claims for unfair and deceptive debt collection activities on behalf of himself and other persons similarly situated under (1) the Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1 et seq.; (2) common law fraud; (3) the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-3; (4) the Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. Ann. § 5703; and (5) for unjust enrichment.

         On February 22, 2016, PAS filed a notice of removal (Doc. 1) to this court alleging subject matter jurisdiction under 28 U.S.C. § 1332(d)(2) (diversity of citizenship and amount in controversy greater than $5, 000, 000) and 28 U.S.C. § 1331 (federal question). Before the court is Archavage's motion to remand (Doc. 5) the case to the Court of Common Pleas of Luzerne County. The parties have fully briefed the issues and for the reasons set forth herein we will grant the motion.

         I. Background

         Archavage has alleged that on various occasions in 2012, he received medical treatment at the Wilkes-Barre General Hospital (the “hospital”) for which the hospital sought payment. (Doc. 2 ¶ 18). Most of the medical bills were processed and paid by applicable insurance and when some of the bills went unpaid, the hospital sent the unpaid bills to PAS for collection. (Id. ¶ 19). Archavage alleges that PAS conducted its collection activity under the guise of being the original creditor, wrongfully cloaking itself with the identity of the creditor and referring to itself as the original creditor. (Id. ¶10).

         He further alleged that PAS learned that Archavage's unpaid medical bills of the hospital should have been paid by his workers compensation insurance carrier. (Id. ¶ 22). Thereafter, Archavage alleged that in an attempt to ascertain information about the outstanding hospital bills, a representative of PAS made a telephone call to the workers compensation carrier's third party administrator. (Id. ¶ 23). During the call, the PAS representative unlawfully recorded the telephone call, failed to identify herself as a debt collector, falsely claimed that she was calling from the hospital, requested and received the name and contact information of the workers compensation claims adjuster, and failed to secure the appropriate consent from Archavage. (Id. ¶¶ 23-28). Archavage asserts that at least three of PAS's female representatives telephoned the adjuster for his workers compensation carrier as well as his counsel and represented themselves as being from the hospital or “the business office, ” or the “corporate office from the hospital.” (Id. ¶¶ 29-37). During all of those calls to counsel, (1) the representatives concealed that they were debt collectors, (2) failed to state they were attempting to collect a debt, (3) created phony letterhead of the hospital and sending it by facsimile to counsel, and (4) unlawfully tape recorded the telephone conversations. (Id. ¶¶ 38-45).

         By way of history, on February 14, 2013, Archavage had filed a different, prior suit against PAS in the Court of Common Pleas of Luzerne County (“Archavage I”). (Doc. 6-2, at 2). This action is active and still pending in the Luzerne County Court of Common Pleas. (Id.). In that lawsuit, Archavage has alleged that his claims are based on PAS's collection activities relative to his unpaid medical bills, and PAS is liable for damages based on the following:

1. Violation of the Fair Debt Collection Act - 15 U.S.C.A. § 1692;
2. Fraud;
3. Violation of the Pennsylvania Fair Credit Extension Uniformity Act - 73 P.S. § 2270.4;
4. Violation of the Unfair Trade Practices and Consumer Protection Law - 73 P.S. § 201-3.

(Id.). Furthermore, Archavage claimed that PAS used the telephone and other instrumentalities of interstate commerce in its attempts to collect debts, and specifically a debt allegedly owed by Archavage. (Id.).

         On December 8, 2015, Archavage had also filed a separate prior class action complaint in the Court of Common Pleas of Luzerne County (“Archavage II”). (Id. at 58). There, Archavage alleged those same violations of state and federal law as in Archavage I. (Id.). The complaint in Archavage II alleged the total amount in controversy for each member as less than $75, 000, and it also alleged that members of the class in Pennsylvania exceed one-thousand persons. (Id. at 62, 71). PAS then filed a notice of removal on January 12, 2016, and Archavage II was removed to this Court. (Id. at 87). After a scheduling order was signed by the Honorable Richard P. Conaboy (Id. at 125), Archavage filed a notice of voluntary dismissal of that action, without prejudice. (Id. at 127).

         On January 25, 2016, Archavage filed the instant action against PAS (“Archavage III”) in the Court of Common Pleas of Luzerne County Pennsylvania. (Doc. 2). This complaint contains the same factual basis as those previously filed; however, Archavage removed all explicit claims based on federal statutes. (Id.). Nevertheless, in his complaint, Archavage refers to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 and references the FDCPA's purpose to eliminate abusive debt collection practices by debt collectors. (Id. ¶ 2). However, he claims that the Pennsylvania law counterpart, the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”), also provides that if a debt collector violates any of the provisions ...


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