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Klein v. Commerce Energy, Inc.

United States District Court, W.D. Pennsylvania

June 21, 2017

JEFFREY FRANK KLEIN, Plaintiff,
v.
COMMERCE ENERGY, INC., d/b/a JUST ENERGY, a California Corporation, and COLLECTCENTS, INC., o/a CREDIT BUREAU OF CANADA, a Foreign Corporation, Defendants.

          OPINION

          Joy Flowers Conti Chief United States District Judge

         I. INTRODUCTION

         Pending before the court are the motion for summary judgment (ECF No. 113) filed on behalf of defendant Collectcents, Inc., o/a Credit Bureau of Canada Collections ("Collectcents") and the motion for summary judgment (ECF No. 119) filed on behalf of defendant Commerce Energy, Inc. d/b/a Just Energy ("Commerce Energy"). This court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. In his third amended complaint (ECF No. 95), plaintiff Jeffrey Frank Klein ("Klein") claims that numerous telephone calls made to him by Collectcents on behalf of Commerce Energy violated the Telephone Consumer Protection Act of 1991 ("TCPA"), 47 U.S.C. § 227 et seq., and constituted negligence and invasion of privacy under Pennsylvania law. Specifically, Klein sues Collectcents for: a) violation of the TCPA (Count I); b) common law invasion of privacy under intrusion upon seclusion theory (Count II); and c) negligence (Count III). Klein sues Commerce Energy for: a) violation of the TCPA (Count IV); and b) "vicarious liability" for violation of the TCPA and invasion of privacy by Collectcents (Count V). By order dated November 18, 2016, (ECF No. III), and as indicated in the court's memorandum opinion issued with respect to Commerce Energy's partial motion to dismiss the third amended complaint, the negligence claims against Commerce Energy, directly and vicariously, under Counts V and VI of the third amended complaint were dismissed. Klein v. Just Energy Group, Inc., Civ. Act. No. 14-1050, 2016 WL 6822810, at *5 (W.D. Pa. Nov. 18, 2016).

         In support of their present motions for summary judgment, Collectcents filed its brief in support of its motion, (ECF No. 114), its concise statement of material facts, (ECF No. 115), an appendix, (ECF No. 116), a reply brief, (ECF No. 134), and a reply concise statement of material facts, (ECF No. 135), and Commerce Energy filed its brief in support of its motion, (ECF No. 120), its concise statement of material facts, (ECF No. 121), an appendix, (ECF No. 122), a reply brief, (ECF No. 136), and a reply concise statement of material facts. (ECF No. 137). Klein filed a response in opposition to Collectcents' motion (ECF No. 125), a response to Collectcents' concise statement of material facts (ECF No. 129), a response in opposition to Commerce Energy's motion (ECF No. 124), and a response to Commerce Energy's concise statement of material facts. (ECF No. 128). In accordance with this court's procedures, Klein and Collectcents filed a Combined Concise Statement of Material Facts ("Collectcents CCSMF") (ECF No. 140) and Klein and Commerce Energy filed a Combined Concise Statement of Material Facts ("Commerce Energy CCSMF"). (ECF No. 141). The Combined Concise Statement of Material Facts filed by Collectcents and the Combined Concise Statement of Material Facts filed by Commerce Energy indicate uncontested facts, disputes about certain facts and disputes about whether the responses of Klein to certain of the facts asserted by Collectcents and Commerce Energy in their respective Concise Statements of Material Facts are adequate to dispute those facts under the Local Rules of the United States District Court for the Western District of Pennsylvania and the Chambers' Rule of this court. See e.g., (ECF No. 140 at 8 (citing LCvR 56.E and this court's Chambers' Rule 3.F.c.ii)); (ECF No. 141 at 10 (citing LCvR 56.C.1.a and this court's Chambers' Rule 3.F.c.ii)). These motions are fully briefed and ripe for disposition. Because Klein cannot show that he was charged for any of the calls, because his claims for invasion of privacy are untimely, and because Klein's claims do not fall within the four scenarios for negligence causing emotional distress, as more fully explained below, summary judgment will be granted in favor of Collectcents and Commerce Energy with respect to all claims remaining against them.

         II. PROCEDURAL BACKGROUND

         On August 13, 2014, this court granted plaintiff, who was proceeding pro se at that time, leave to proceed in forma pauperis. Klein's original complaint sued Just Energy Group, Inc., Just Energy Limited, Just Energy Pennsylvania Corp., and Just Energy Ohio, LLC (collectively, the "Just Energy Defendants"). The Just Energy Defendants responded to the pro se complaint by filing a partial motion to dismiss the complaint, seeking dismissal of claims for private nuisance and negligence for failure to state a claim. (ECF No. 17). By order dated May 27, 2015, this court granted Just Energy Defendants' motion to dismiss the counts for private nuisance and negligence without prejudice. (ECF No. 22). The court determined in its accompanying memorandum opinion that Pennsylvania does not recognize private nuisance claims outside the land context, and that, with respect to the negligence claim, Klein failed to set forth sufficient factual allegations to invoke any of the four scenarios under which a claim for negligent infliction of emotional distress can proceed under Pennsylvania law and also failed to allege the required physical manifestation of his emotional distress. (ECF Nos. 21 at 8-9). In the May 27, 2015 order, this court granted Klein leave to file an amended complaint. Klein, who was still proceeding pro se, filed the amended complaint on June 12, 2015. (ECF No. 24). The amended complaint contained claims against the Just Energy Defendants for violation of the TCP A, invasion of privacy under intrusion upon seclusion theory, and negligence.

         On November 16, 2015, counsel for Klein entered his appearance and Klein no longer proceeded pro se. (ECF No. 42). On January 20, 2016, with leave of court requested on January 8, 2016, Klein through his counsel filed a second amended complaint and added Collectcents and Data Exchange, Inc. as defendants to this action. (ECF Nos. 48, 51; (Minute Entry 1/19/16)). The Just Energy Defendants filed their answer to the second amended complaint on January 26, 2016. (ECF No. 52). After filing that answer and concluding discovery, on February 26, 2016, the Just Energy Defendants filed a motion for summary judgment. (ECF No. 57). Defendant Data Exchange responded to the second amended complaint on May 17, 2016 by filing a motion to dismiss for lack of personal jurisdiction (ECF No. 75) and a motion to dismiss for failure to state a claim. (ECF No. 77). Defendant Collectcents responded to the second amended complaint by filing its answer on June 21, 2016. (ECF No. 85). By order dated June 29, 2016, the court granted the Just Energy Defendants' motion for summary judgment. (ECF No. 87).

         Klein filed a motion for leave to file a third amended complaint on July 7, 2016 (ECF No. 88), seeking to add Commerce Energy as a defendant to this action and to assert claims against Collectcents, Data Exchange, Commerce Energy and Just Energy Group, Inc., despite the fact that Just Energy Group, Inc. had obtained summary judgment. After argument on the pending motions to dismiss and for leave to amend, the court granted Data Exchange's motion to dismiss for lack of personal jurisdiction, which was consented to by Klein, denied as moot Data Exchange's motion to dismiss for failure to state a claim, and granted in part and denied in part Klein's motion for leave to file a third amended complaint. (Minute Entry 9/7/2016). Klein was not granted leave to file any further claims against Just Energy Group, Inc. (Minute Entry 9/7/2016). Klein filed his third amended complaint on September 8, 2016 (ECF No. 95), which contained only claims against Collectcents and Commerce Energy. Commerce Energy responded to the third amended complaint on September 23, 2016 by filing a motion to dismiss the claims against it based on negligence, including the claim for vicarious liability for the negligence of Collectcents. (ECF No. 96). Collectcents responded to the third amended complaint with its answer and affirmative defenses on September 26, 2016. (ECF No. 100).

         By order dated November 18, 2016, the court granted Commerce Energy's motion to dismiss the claims against it for negligence and vicarious liability for negligence. (ECF No. 111). Thus, remaining in this action are: the claims against Collectcents for violation of the TCP A, invasion of privacy, and negligence; and the claims against Commerce Energy for its violation of the TCP A and for its vicarious liability for the violation of the TCPA and invasion of privacy by Collectcents. Collectcents filed its motion for summary judgment on November 21, 2016. (ECF No. 113). Commerce Energy filed its answer to the remaining claims against it on November 30, 2016, and filed its motion for summary judgment on December 12, 2016. (ECF No. 119).

         III. FACTUAL BACKGROUND[1]

         At the outset, the court is constrained, again, [2] to address certain issues about the filings with respect to the statements of material facts required for filing and responding to a motion for summary judgment. Collectcents and Commerce Energy each filed their Concise Statement of Material Facts in accordance with Local Rule 56.B.1. (ECF Nos. 115, 121). In response to each Concise Statement of Material Facts, Klein filed his Response Concise Statements of Material Facts. (ECF Nos. 128, 129). With respect to Collectcents' statement of facts, Klein indicates that he denies the facts numbered 28, 30, 31, 32, 33, 34, 35, and 36. (ECF No. 129). With respect to the facts numbered 28, 34, 35, and 36, he states that he denies the fact and in support only cites to his third amended complaint as opposed to any evidence in the record or admission by pleading of Collectcents. With respect to the facts numbered 30, 31, 32, and 33, Klein denies each fact and cites only to Section A of his opposition brief addressing his argument that the TCPA applies to calls made to his free Google voice over Internet Protocol ("VoIP") service number ending in 0702 ("Klein's VoIP number"). With respect to Commerce Energy's statement of facts, Klein indicates that he denies the facts numbered 48, 49, 50, 51, 52, 53, and 54, and admits in part and denies in part the facts numbered 34 and 41 (ECF No. 128). With respect to the facts numbered 48, 49, 50, and 51, he denies each fact and cites only to the argument in Section A of his opposition brief addressing the application of the TCPA to VoIP. With respect to the facts numbered 52, 53 and 54, Klein states that he denies each fact and in support cites only to his third amended complaint as opposed to any evidence in the record or admission by pleading of Commerce Energy. Klein admits in part and denies in part the facts numbered 34 and 41 with respect to the claimed independent contractor relationship status with Commerce Energy of the entity who made the data verification call and of the debt collection agency, Collectcents, stating that the supporting documents cited to and relied on by Commerce Energy do not establish the lack of an agency relationship. (ECF No. 128 ¶¶ 34, 41).

         Argument in Klein's brief and the reference back to the allegations in his third amended complaint are not evidence and are not sufficient to show a genuine dispute of fact exists. Beyond the local rule and this court's procedures, the United States Supreme Court has instructed that reliance on the party's own pleading is insufficient to dispute a fact supported by evidence. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Schultz v. United States, Civ. Act. No. 15-454, 2017 WL 635289, at *4 (W.D. Pa. Feb. 16, 2017). Klein simply directs the court to his brief containing his argument that the TCPA applies to calls made to his free Google VoIP service number ending in 0702 and restates the allegation made in his third amended complaint that the calls to his VoIP number were charged to him based on his assertion that they were forwarded by him from his VoIP service to the Verizon Wireless phone account for which he pays. Klein does not dispute that he was not charged by Google for his VoIP service and that the service to him is free. (ECF Nos. 140 ¶ 30; 141 ¶ 48). Additionally, he does not provide evidence or point to any evidence in the record to show any charge for a call from Collectcents, whether from Collectcents directly, from a blocked number or from a call forwarded from his VoIP number to his cell phone, though he still argues and alleges he was called by a blocked number and that he was charged. (ECF Nos. 140 ¶¶ 28, 31, 33, 34, 35, 36; 141 ¶¶ 49, 51, 52, 53, 54).

         Local Civil Rule of Court 56.B.1 requires the party moving for summary judgment to file a separate concise statement of material facts and requires that the party cite "to a particular pleading, deposition, answer to interrogatory, admission on file or other part of the record supporting the party's statement, acceptance, or denial of the material fact." W.D. Pa. LCvR 56.B.1. In further support, the moving party must file an appendix with the documents supporting that party's concise statement of material facts. W.D. Pa. LCvR 56.B.3. The opposing party also is to provide a separately filed concise statement admitting or denying the facts in the moving party's concise statement, W.D. Pa. LCvR 56.C.l.a, setting forth the basis for a denial of the moving party's concise statement with reference to the record, W.D. Pa. LCvR 56.C.l.b, and providing any additional material facts that are necessary for the court's ruling on the motion. W.D. Pa. LCvR 56.C.I.e. This court's Chambers' Rule 3.F.c.ii requires that the opposing party file a separate document in response to the moving party's concise statement indicating which facts are disputed and citing and attaching the evidence in support of any disputed facts. Local Civil Rule of Court 56.E specifically provides that the facts claimed to be undisputed and material in a party's concise statement "will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." W.D. Pa. LCvR 56.E.

         Collectcents and Commerce Energy supported their concise statements with cites to the record and provided sufficient evidentiary materials in their appendices in support of the stated facts (ECF Nos. 115, 121), in compliance with Local Civil Rule of Court 56.B.1 and 56.B.3. Under these circumstances and for the purpose of resolving the present motions for summary judgment, Collectcents' facts numbered 28, 30, 31, 32, 33, 34, 35, and 36 and Commerce Energy's facts numbered 48, 49, 50, 51, 52, 53, and 54 will be deemed admitted. With respect to the dispute about independent contractor status, Commerce Energy's facts numbered 34 and 41 and Klein's argument about the import of certain undisputed facts will be addressed later in this opinion.

         A. Just Energy Entities and Master Services Agreements

         Just Energy Group, Inc., a Canadian corporation, is a natural gas and electricity retailer, (Collectcents CCSMF ¶ 13; Commerce Energy CCSMF ¶ 23), and has multiple affiliated entities. Collectcents CCSMF ¶¶ 14, 15, 16, 20; Commerce Energy CCSMF ¶¶ 24, 25, 27, 31. The other entities include Commerce Energy, (Collectcents CCSMF¶14, Commerce Energy CCSMF ¶ 24), and Just Energy Corporation, which is not a defendant in this lawsuit. Collectcents CCSMF¶20; Commerce Energy CCSMF If 31. Just Energy Corporation, when it was known as Ontario Energy Savings Corporation, entered into a Master Collection Agency Services Agreement dated September 10, 2008 ("collection MSA") with Collectcents, operating as the Credit Bureau of Canada Collections. Collectcents CCSMF ¶¶ 17; Commerce Energy CCSMF ¶¶ 25, 40. Pursuant to the collection MSA, Collectcents provided debt collection services to Commerce Energy for its customer accounts. Collectcents CCSMF ¶¶ 17, 26; Commerce Energy CCSMF ¶ 40. Just Energy Corporation also entered into a Master Services Agreement effective July 21, 2009 with Quick Response Outsourcing, LLC ("QRO") under which QRO provided customer verification and information services to Just Energy Corporation and its affiliates ("customer verification MSA"). Collectcents CCSMF ¶¶ 20, 21; Commerce Energy CCSMF ¶¶ 31, 32.

         B. Account of P.S.[3] and Customer Call and Verification Process

         On June 17, 2013, Cedric Frisco ("Frisco"), who worked as an independent contractor[4]for Just Energy Marketing Corporation, which is not a defendant here, signed up P.S. as a customer of Commerce Energy. Collectcents CCSMF ¶ 18; Commerce Energy CCSMF ¶ 29. As part of the process of signing up P.S. as a customer, Frisco on or about June 17, 2013, provided to QRO the correct phone number for P.S. during a verification call with QRO, the third-party verification services company. Collectcents CCSMF ¶¶ 19, 22; Commerce Energy CCSMF ¶¶ 30, 32, 33, 35, 36. The individual from QRO participating in the verification call with Frisco regarding the Commerce Energy account of P.S. incorrectly recorded P.S.'s phone number. Collectcents CCSMF¶23; Commerce Energy CCSMF ¶ 37. The number recorded was Klein's VoIP number ending in 0702, which was assigned to him for his Google VoIP service. Collectcents CCSMF ¶¶ 23, 24, 29; Commerce Energy CCSMF ¶¶ 37, 38, 47. Klein's Google VoIP service is a free service. Collectcents CCSMF ¶¶ 29, 30, 31; Commerce Energy CCSMF ¶¶ 48, 49, 51, 52, 53, 54. Klein also has Verizon cell service with the number ending in 7489 assigned to that service. Collectcents CCSMF If 32; Commerce Energy CCSMF ¶ 50; (ECF No. 122-7).

         Commerce Energy does not directly place calls to consumers for the purpose of verifying customer information when marketing energy to customers or for the purpose of collecting delinquent accounts. Collectcents CCSMF ¶¶ 16, 19; Commerce Energy CCSMF ¶ 26. All of Just Energy Group, Inc.'s affiliates and subsidiaries, including Commerce Energy, use third parties, such as QRO, to verify customer information and use third parties, such as Collectcents, for the purpose of collecting delinquent accounts. Collectcents CCSMF ¶¶ 16, 17, 26, 27; Commerce Energy CCSMF ¶ 26, 27, 28, 40.

         C. Numerous Phone Calls to Klein's VoIP number

         In September 2013, the account of P.S. with Commerce Energy became delinquent. Collectcents CCSMF ¶ 25; Commerce Energy CCSMF ¶ 39. Pursuant to the collection MSA, Commerce Energy utilized Collectcents for all the debt collection phone calls related to the account of P.S.; Commerce Energy did not place any debt collection calls. Collectcents CCSMF ¶ 26; Commerce Energy CCSMF ¶¶ 40, 43, 44, 45. Because Klein's VoIP number had been erroneously recorded as the number for P.S., Commerce Energy provided Klein's VoIP number to Collectcents for the purpose of collecting the amount owing on P.S.'s account with the belief that the number provided was the correct number. Collectcents CCSMF ¶¶ 27, 29; Commerce Energy CCSMF ¶ 42. Collectcents made the debt collection calls that related to P.S.'s account beginning on September 30, 2013, and continuing until August 2014. Collectcents placed the calls to Klein's VoIP number-not P.S.'s phone number-because that was the number Commerce Energy gave to Collectcents for collection calls. Collectcents CCSMF ¶¶ 28, 29; Commerce Energy CCSMF ¶¶ 42, 43, 44, 47. Klein's VoIP records show calls coming from a number ending in 7575 or an "unknown" number related to various voice mail messages left by Collectcents. (ECF Nos. 116-7, 124-3, 125-3). The number ending in 7575 is not directly associated with Commerce Energy. Commerce Energy CCSMF ¶ 46. Numerous phone calls were made by Collectcents to Klein's VoIP number attempting to collect the debt owed by P.S.[5]

         During the course of this litigation, on September 24, 2014, Just Energy Defendants served on Klein their Objections and Responses to First Set of Requests to Admit, their Objections and Responses to First Set of Interrogatories, and their Objections and Responses to First Set of Requests to Produce Documents. Commerce Energy CCSMF ¶ 55. The Just Energy Defendants' response to Klein's interrogatory number 2 states that "upon information and belief [P.S.] is a customer of Commerce Energy, Inc. d/b/a Just Energy." (ECF No. 122-9 at 13). In response to interrogatory number 4, the Just Energy Defendants state that "none of the [Just Energy Defendants (nor any of their subsidiaries/related parties) have placed telephone calls to [P.S.] and/or the phone number [0702] for the purposes of debt collection calls, " (ECF No. 122-9 at 14), and in response to interrogatory number 3 the Just Energy Defendants state that they "use a third-party independent contractor collection agency for debt collection purposes and therefore do not make outbound telephone calls for the purposes of collecting debts." (ECF No. 122-9 at 13-14).

         IV. SUMMARY JUDGMENT STANDARD

         Summary judgment may only be granted where the moving party shows that there is no genuine dispute about any material fact, and that judgment as a matter of law is warranted. Fed.R.Civ.P. 56(a). Pursuant to Federal Rule of Civil Procedure 56, the court must enter summary judgment against a party who fails to make a showing sufficient to establish an element essential to his or her case, and on which he or she will bear the burden of proof at trial. Celotex Corp., 477 U.S. at 322. In evaluating the evidence, the court must interpret the facts in the light most favorable to the nonmoving party, drawing all reasonable inferences in his or her favor. Watson v. AbingtonTwp.. 478 F.3d 144, 147 (3d Cir. 2007).

         The burden on a motion for summary judgment is initially on the moving party to demonstrate that the evidence contained in the record does not create a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). A dispute is "genuine" if the evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will bear the burden of proof at trial, the moving party may meet its burden by showing that the admissible evidence contained in the record would be insufficient to carry the nonmoving party's burden of proof or that there is an absence of evidence to support the nonmoving party's case. Celotex Corp.. 477 U.S. at 322, 325; Marten v. Godwin. 499 F.3d 290, 295 (3d Cir.2007).

         Once the movant meets its burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial" and to present sufficient evidence demonstrating that there is indeed a genuine and material factual dispute for a jury to decide. Fed.R.Civ.P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Celotex. 477 U.S. at 323-25. The nonmoving party must go beyond his or her pleadings and designate specific facts by the use of affidavits, depositions, opposing party admissions or answers to interrogatories showing that there is a genuine issue of material fact for trial. Id. at 324. The nonmoving party cannot defeat a well-supported motion for summary judgment by simply reasserting unsupported factual allegations contained in his or her own pleadings. Williams v. Borough of West Chester. 891 F.2d 458, 460 (3d Cir. 1989).

         One of the principal purposes of summary judgment is to isolate and dispose of factually unsupported claims or defenses. Celotex, 477 U.S. at 323-24. The summary judgment inquiry asks whether there is a need for trial-"whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. In ruling on a motion for summary judgment, the court's function is not to weigh the evidence, make credibility determinations or to determine the truth of the matter, but only to determine whether the evidence of record is such that a reasonable jury could return a verdict for the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000) (citing decisions); Liberty Lobby, 477 U.S. at 248-49; Simpson v. Kay Jewelers. Div. of Sterling. Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998). The mere existence of a factual dispute, however, will not necessarily defeat a motion for summary judgment. Only a dispute over a material fact-that is, a fact that would affect the outcome of the suit under the governing substantive law-will preclude the entry of summary judgment. Liberty Lobby, 477 U.S. at 248.

         A defendant who moves for summary judgment is not required to refute every essential element of the plaintiffs claim; rather, the defendant must only point out the absence or insufficiency of plaintiffs evidence offered in support of one or more those elements. Celotex, 477 U.S. at 322-23. If the evidence the nonmovant produces is "merely colorable, or is not significantly probative, " the moving party is entitled to judgment as a matter of law. Liberty Lobby, 477 U.S. at 249. The nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). To survive summary judgment, the nonmoving party must "make a showing sufficient to establish the existence of [every challenged] element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. Furthermore, "[w]hen opposing summary judgment, the non-movant may not rest upon mere allegations, but rather must 'identify those facts of record which would contradict the facts identified by the movant.'" Corliss v. Varner, 247 F.App'x 353, 354 (3d Cir.2007) (quoting Port Auth. of N.Y. and N.J, v. Affiliated FM Ins. Co.. 311 F.3d 226, 233 (3d Cir.2002)). Inferences based upon speculation or conjecture do not create a material factual dispute sufficient to defeat a motion for summary judgment. Robertson v. Allied Signal, Inc., 914 F.2d 360, 382n.l2(3dCir. 1990).

         V. DISCUSSION

         Collectcents and Commerce Energy initially argue that Klein's TCPA claims against them fail because Klein cannot show that he was charged for his VoIP service or even that he was charged for any of the challenged calls. They further argue that any claim for invasion of privacy fails because the undisputed evidence shows that the calls were unintentionally made to Klein and because the claim is barred by the applicable statute of limitations. Commerce Energy argues with respect to vicarious liability urged only against it, that Klein cannot establish its vicarious liability for the conduct of Collectcents under agency principles. Collectcents argues with respect to the negligence claim remaining only against it, that it is entitled to summary judgment because Klein cannot show a duty owed to him, it breached any duty, or he suffered damages as a result of any breach and because the court previously dismissed the same negligence claim. Finally, Collectcents argues that the statute of limitations bars the negligence claim with respect to calls made before January 20, 2014.

         A. TCPA Claim (Counts I, IV and V)

         Klein seeks to hold Collectcents and Commerce Energy liable under the TCPA for Collectcents' violation of § 227(b)(1)(A)(iii) by using an automatic telephone dialing system or an artificial prerecorded voice in making numerous calls to him. (ECF Nos. 95 ¶¶ 25, 26, 53). The dispute under the TCPA centers on whether the calls to Klein's VoIP number constituted calls "to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call." 47 U.S.C. § 227(b)(1)(A)(iii). In its prior opinion, the court left for another day the question whether the calls to Klein's VoIP number were subject to the TCPA under the charged call provision of 47 U.S.C. § 227(b)(1)(A)(iii), "or any service for which the called party is charged for the call, " because Klein's particular VoIP service from Google is free. Klein v. Just Energy Group. Inc.. 2016 WL 3539137, at *14 (W.D. Pa. June 29, 2016). That day now has come.

         The TCPA provides in pertinent part:

(b) Restrictions on use of automated telephone equipment
(1) Prohibitions. It shall be unlawful for any person within the United States, or any person outside the United States if the recipient is within the United States-
(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-
(i) to any emergency telephone line . . .;
(ii) to the telephone line of any guest room or patient room of a hospital, health care facility, elderly home, or similar establishment; or
(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call ......

47 U.S.C. § 227(b)(1) (emphasis added).

         The TCPA provides a private right of action for violation of 47 U.S.C. § 227(b)(1):

(3) Private right of action. A person or entity may, if otherwise permitted by the laws or rules of court of a State, bring in an appropriate court of that State-
(A) an action based on a violation of this subsection or the regulations prescribed under this subsection to enjoin such violation,
(B) an action to recover for actual monetary loss from such a violation, or to receive $500 in damages for each such violation, whichever is greater, or
(C) both such actions.
If the court finds that the defendant willfully or knowingly violated this subsection or the regulations prescribed under this subsection, the court may, in its discretion, increase the amount of the award to an amount equal to not more than 3 times the amount available under subparagraph (B) of this paragraph.

47 U.S.C. § 227(b)(3).

         The section relating to residential telephone subscribers is 47 U.S.C. § 227(c) and governs calls to the National Do-Not-Call Registry. See 47 U.S.C. § 227(c)(1) (authorizing the Federal Communications Commission ("FCC") to initiate rulemaking concerning the privacy rights of residential telephone subscribers). Section 227(c)(5) provides for a private right of action for § 227(c) violations where a person has received more than one telephone call "by or on behalf of' the same entity in violation of § 227(c). 47 U.S.C. § 227(c)(5).

         To prevent evasion of the TCPA's call prohibitions, the FCC has treated calls made by a third party on behalf of a company as if the company itself made the call, whether in relation to collection or solicitation calls subject to § 227(b) or in rules governing solicitation calls addressed in § 227(c). With respect to collection calls under § 227(b)(1)(A)(iii) made to wireless numbers, the FCC explained:

To ensure that creditors and debt collectors call only those consumers who have consented to receive autodialed and prerecorded message calls, we conclude that the creditor should be responsible for demonstrating that the consumer provided prior express consent. The creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications. . . . [A] creditor on whose behalf an autodialed or prerecorded message call is made to a wireless number bears the responsibility for any violation of the Commission's rules. Calls placed by a third party collector on behalf of that creditor are treated as if the creditor itself placed the call.

In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991: Request of ACA Int'l for Clarification and Declaratory Ruling. 23 FCC Red. 559, 564 ¶ 10 (2008) (footnotes omitted). In its ruling, the FCC noted that the prohibitions on the use of autodialers in § 227(b)(1)(A)(iii) apply regardless of the content of the call, as opposed to the separate restrictions of § 227(c) on "telephone solicitations" that do not apply to calls that are solely for the purpose of collecting a debt. 23 FCC Red. at 565 ¶11.

         As a remedial consumer protection statute, Gager v. Dell Financial Services, LLC, 727 F.3d 265, 271 (3d Cir. 2013), the TCPA's language is to be construed "broadly to effect its purpose." Lesher v. Law Offices of Mitchell N. Kay, P.C., 650 F.3d 993, 997 (3d Cir. 2011) (applying principal in context of Fair Debt Collection Practices Act "FDCPA" case). If proposed interpretations of the TCPA are equally plausible, the scales tip in favor of the consumer. Leyse v. Bank of America Nat. Ass'n, 804 F.3d 316, 327 (3d Cir. 2015).

         Considering the TCPA, the Supreme Court has explained:

Voluminous consumer complaints about abuses of telephone technology-for example, computerized calls to private homes-prompted Congress to pass the Telephone Consumer Protection Act of 1991 (TCPA or Act), 47 U.S.C. § 227 The Act bans certain practices invasive of privacy and directs the Federal Communications Commission (FCC or Commission) to prescribe implementing regulations.

Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 370-71 (2012). The Court of Appeals for the Third Circuit observed that "Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls." Gager, 727 F.3d at 268 (citations omitted).

         The legislative history of the TCPA refers to prerecorded calls as "an intrusive invasion of privacy" and indicates that the TCPA is aimed at protecting individuals' privacy rights while balancing legitimate telemarketing practices. Leyse, 804 F.3d at 325-26 (citing Telephone Consumer Protection Act of 1991, Pub.L. No. 102-243, § 2(5)-(6), (10), 105 Stat. 2394 (note following 47 U.S.C. § 227); § 2(9), (12)-(13)). Debt collection calls as well as telemarking calls are within the TCPA's purview. Gager, 727 F.3d at 273; Fenescey v. Diversified Consultants, Inc., Civ. Act. No. 14-347, 2014 WL 252651, at *2 (M.D. Pa. June 4, 2014); Forrest v. Genpact Services, LLC, 962 F.Supp.2d 734, 736 (M.D. Pa. 2013) (holding plaintiff stated a claim under both the TCPA and the FDCPA for excessive debt collection calls).

         For purposes of the TCPA, it does not matter that P.S. was the intended recipient of the calls. In Leyse, the Court of Appeals for the Third Circuit held that the individual who answers the robocall[6] has standing to sue. 804 F.3d at 327. The aggrieved persons under the TCPA's provisions include the actual recipient of the telephone call, 804 F.3d at 325-26, because "[i]t is the actual recipient, intended or not, who suffers the nuisance and invasion of privacy." Leyse, 804 F.3d at 326.

         VoIP service, which is the service used by Klein and the service to which his 0702 number is assigned, is becoming more commonly used and is provided over broadband connection, cable modem, fiber to the premises (FTTP), digital subscriber line (DSL) or other wireline, and fixed wireless or other connections. FCC Releases New Local Telephone Competition Data: Third Collection to Comprehensively Include Interconnected VoIP, 2011 WL 97677, at * 1-2 (FCC Jan. 11, 2011).

Interconnected VoIP service represents an important and rapidly growing part of the U.S. voice service market. [It] enables voice communications over a broadband connection and allows users both to receive calls from, and place calls to, the public switched telephone network, like traditional phone service. Providers of the service include companies ...

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