256 F. Supp. 3d 563
W.D. Pa.2017Background
- Plaintiff Jeffrey Klein alleged Collectcents (a debt collector) placed numerous automated/recorded calls to his Google Voice VoIP number that Commerce Energy provided to Collectcents as the phone number for a Commerce Energy customer (P.S.).
- Calls occurred Sept. 2013–Aug. 2014; Klein produced voicemail recordings and Verizon/Google records but no billing showing he was charged for those inbound VoIP calls.
- Klein sued under the TCPA (47 U.S.C. § 227(b)), and state-law claims for intrusion upon seclusion (invasion of privacy) and negligence; Commerce Energy was sued vicariously for Collectcents’ conduct.
- Defendants moved for summary judgment: principal federal argument was Klein could not show he was charged for calls to his free Google VoIP number (necessary under the TCPA catchall for services not expressly listed); additional defenses included statute of limitations and lack of duty/neglect theory.
- Court deemed many factual assertions admitted under local rules, analyzed TCPA charged-call provision as applied to VoIP, considered vicarious-liability theories (formal agency, apparent authority, ratification), and declined to dismiss agency theories on summary judgment given the record.
- Ruling: summary judgment granted to Collectcents and Commerce Energy on all remaining counts — TCPA claims dismissed for failure to show call charges; invasion-of-privacy claims dismissed as time-barred; negligence against Collectcents dismissed for multiple reasons (no TCPA violation for negligence-per-se basis and failure to fit Pennsylvania’s four emotional-distress scenarios).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of TCPA charged-call provision to calls to Klein's free Google VoIP number | Klein argued the TCPA applies because calls ultimately burden his wireless plan when forwarded and statutory language should be read broadly (and cited cases treating VoIP as covered) | Defendants argued §227(b)(1)(A)(iii)’s catchall requires the called party be charged for the call where the number is not one of the enumerated services; Klein produced no billing evidence showing he was charged for inbound VoIP calls | Court: TCPA claim fails — Klein did not show he was charged for the VoIP calls, so §227(b)(1)(A)(iii) was not violated as to these calls; summary judgment for defendants on TCPA counts |
| Vicarious liability of Commerce Energy for Collectcents’ calls | Klein invoked agency theories (apparent authority, ratification, formal agency) and FCC precedent to hold Commerce Energy liable for third-party calls made on its behalf | Commerce Energy argued Collectcents was an independent contractor and no agency supported vicarious liability | Court: even though TCPA claims fail on the charging element, sufficient record evidence existed such that a jury could find agency (apparent authority/ratification); lack of agency did not provide an independent ground for summary judgment |
| Timeliness of intrusion-upon-seclusion (invasion of privacy) claims | Klein argued tolling (discovery rule/fraudulent concealment) and that identity of callers was not known earlier | Defendants pointed to discovery responses (served Sept. 24, 2014) identifying Commerce Energy and third-party collectors and argued plaintiffs had notice; Pennsylvania one-year statute of limitations applies | Court: invasion-of-privacy claims are time-barred as a matter of law because Klein had notice via discovery responses; summary judgment for defendants |
| Negligence claim (emotional distress) against Collectcents | Klein asserted negligence per se based on alleged TCPA violation and general emotional-distress harms from repeated calls | Collectcents argued negligence-per-se fails because TCPA violation wasn’t established, Pennsylvania requires negligence claims for emotional distress to fit one of four recognized scenarios, and law-of-the-case bars relitigation | Court: summary judgment for Collectcents — negligence per se fails because no TCPA violation; also barred under Pennsylvania law because Klein’s emotional-distress negligence does not fit the four required scenarios; law of the case supports dismissal |
Key Cases Cited
- Celotex Corp. v. Catrett, 477 U.S. 317 (Sup. Ct.) (summary-judgment burden-shifting; nonmovant must show genuine dispute)
- Mims v. Arrow Financial Services, LLC, 565 U.S. 368 (Sup. Ct.) (TCPA is a consumer-protection statute and federal courts have jurisdiction over TCPA claims)
- Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir.) (TCPA interpreted as remedial statute protecting consumers from intrusive calls)
- Leyse v. Bank of America National Ass'n, 804 F.3d 316 (3d Cir.) (standing/actual recipient of robocalls can sue under TCPA; remedial purpose favors consumers)
- Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Cir.) (statutory construction: charged-call modifier applies to "any service" and not to enumerated services like cellular numbers)
- Campbell-Ewald Co. v. Gomez, 136 S. Ct. 663 (Sup. Ct.) (vicarious liability principles apply to TCPA tort claims)