Bissett v. Verizon Wireless

Decision Date18 July 2019
Docket NumberNo. 1:18-cv-01907,1:18-cv-01907
Citation401 F.Supp.3d 487
Parties Kristal Masciocchi BISSETT, Plaintiff v. VERIZON WIRELESS and Brandon Shane Kostick, Defendants
CourtU.S. District Court — Middle District of Pennsylvania

John M. Ogden, Law Office of John M. Ogden, York, PA, for Plaintiff.

Brian T. Feeney, Bradly A. Nankerville, Greenberg Traurig LLP, Philadelphia, PA, for Defendants.


Kane, Judge


Presently before the Court is Defendant Verizon Wireless ("Defendant Verizon")'s motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 4.) For the reasons that follow, the Court will grant the motion and dismiss all of Plaintiff's claims against Defendant Verizon, with the exception of Plaintiff's breach of contract claim asserted at Count VI of the complaint, with prejudice, and dismiss Plaintiff's breach of contract claim without prejudice to Plaintiff's right to file an amended complaint as to this claim.

A. Factual Background1

In December of 2015, Plaintiff Kristal Masciocchi Bissett ("Plaintiff") went to a Verizon Wireless store in Shrewsbury, York County, Pennsylvania to purchase a cellular phone from Defendant Verizon. (Doc. No. 1-3 ¶¶ 4-5.) While at this store, Plaintiff was assisted by Defendant Brandon S. Kostick ("Defendant Kostick"), an employee of Defendant Verizon. (Id. ¶ 6.) During her first visit to Defendant Verizon's store, Plaintiff "was asked to provide her cellular telephone number and the last 4 numbers of her social security number." (Id. ¶ 7.) Plaintiff left the store and subsequently returned to the store "on December 9, 2015, to obtain her cellular telephone and to have all of her data transferred" from her current phone to her newly purchased phone. (Id. ¶ 8.) When Plaintiff returned to the store to retrieve her new phone, Defendant Kostick approached Plaintiff and "read back to her [her] telephone number and last 4 [digits] of her social security number." (Id. ¶ 10.) Defendant Kostick "then took [Plaintiff's] existing [ ] phone and started transferring all of her data" onto her newly purchased phone, and the procedure for transferring the data "took abnormally longer than expected." (Id. ¶¶ 10-12.) While the data was being transferred, "Plaintiff heard numerous text alerts sounding from [Defendant] Kostick's" phone, and another employee approached Plaintiff and Defendant Kostick while laughing and commenting that Defendant Kostick " ‘must be late for a meeting’ to explain the numerous text alerts." (Id. ¶¶ 13-14.)

After leaving the Verizon store, Plaintiff attempted to use her phone to send a text message to her son when "she noticed that about 14 text messages were sent to an unknown telephone number." (Id. ¶¶ 15-16.) Plaintiff "then viewed the electronic text messages and saw that the images were of private nude photos of her being sent to the unknown number without her knowledge, consent[,] or authorization." (Id. ¶ 17.) Plaintiff's legal counsel then reported this matter to the Pennsylvania State Police, and Defendant Kostick subsequently "admitted to texting the photos from" Plaintiff's phone "to his telephone number without her knowledge, consent[,] or authorization." (Id. ¶¶ 18-20.) On approximately March 9, 2016, Defendant Kostick was charged with the following criminal offenses under Pennsylvania law: computer theft in violation of Pa. Cons. Stat. § 7613; designing/copying obscene or sexual materials in violation of Pa. Cons. Stat. § 5903; and invasion of privacy in violation of Pa. Cons. Stat. § 7507.1. (Id. ¶ 20.) Defendant Kostick pled guilty to the charges of designing/copying obscene material and invasion of privacy in June of 2017, and in October of 2017, the court adjudicating Defendant Kostick's case permitted him "to withdraw his guilty plea after realizing that he would be labeled a sexual predator." (Id. ¶¶ 21-22.) In December of 2017, Defendant Kostick entered a guilty plea as to the charge of designing/copying obscene materials, "and received a sentence of 18 months probation[,] 50 hours of community service[,] and to be subject to the sexual offender conditions." (Id. ¶ 23.)

B. Procedural Background

On August 30, 2018, Plaintiff filed suit against Defendants in the Court of Common Pleas of York County by filing an eight-count complaint setting forth the following claims: unlawful computer duplication (Count I); unlawful use of a computer and other computer crimes (Count II); unlawful transmission of electronic mail (Count III); computer theft (Count IV);2 breach of fiduciary duty (Count V); breach of contract (Count VI); civil conspiracy (Count VII); and vicarious liability under the doctrine of respondeat superior (Count VIII). (Doc. No. 1-3.) On September 28, 2018, Defendant Verizon filed a notice of removal and removed the case to this Court on the basis of federal diversity jurisdiction. (Doc. No. 1.) Defendant Verizon then filed a motion to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) in October of 2018. (Doc. No. 4.) A review of the docket in this matter reveals that, to date, Defendant Kostick has not entered an appearance in this matter, nor has counsel entered an appearance on his behalf. Having been fully briefed, Defendant Verizon's motion to dismiss is ripe for disposition.


Federal notice and pleading rules require the complaint to provide the defendant notice of the claim and the grounds upon which it rests. See Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff must present facts that, accepted as true, demonstrate a plausible right to relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure 8(a)(2) requires "only a short and plain statement of the claim showing that the pleader is entitled to relief," a complaint may nevertheless be dismissed under Federal Rule of Civil Procedure 12(b)(6) for its "failure to state a claim upon which relief can be granted." See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all factual allegations in the complaint and all reasonable inferences that can be drawn from them, viewed in the light most favorable to the plaintiff. See In re Ins. Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). The Court's inquiry is guided by the standards of Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Under Twombly and Iqbal, pleading requirements have shifted to a "more heightened form of pleading." See Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). To avoid dismissal, all civil complaints must set out "sufficient factual matter" to show that the claim is facially plausible. Id. The plausibility standard requires more than a mere possibility that the Defendant is liable for the alleged misconduct. As the Supreme Court instructed in Iqbal, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not ‘show[n]‘that the pleader is entitled to relief.’ " Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (citing Fed. R. Civ. P. 8(a)(2) ).

Accordingly, to determine the sufficiency of a complaint under Twombly and Iqbal, the United States Court of Appeals for the Third Circuit has identified the following steps a district court must take when determining the sufficiency of a complaint under Rule 12(b)(6) : (1) identify the elements a plaintiff must plead to state a claim; (2) identify any conclusory allegations contained in the complaint "not entitled" to the assumption of truth; and (3) determine whether any "well-pleaded factual allegations" contained in the complaint "plausibly give rise to an entitlement to relief." See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (citation and quotation marks omitted).

In ruling on a Rule 12(b)(6) motion to dismiss for failure to state a claim, "a court must consider only the complaint, exhibits attached to the complaint, matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) ). A court may also consider "matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case." Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006) (internal quotation marks omitted) (quoting 5B Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (3d ed. 2004) ).


Defendant Verizon moves for dismissal of Plaintiff's complaint under Rule 12(b)(6) on the following grounds: (1) Counts I-V and VII-VIII are untimely; (2) "the complaint admits to facts establishing that [Defendant] Kostick's alleged conduct was outside the scope of his employment and thus [Defendant Verizon] cannot be vicariously liable" for any of the claims asserted against it; and (3) the complaint "otherwise fails to state any viable claims." (Doc. No. 4 at 5, 7, 9.) The Court first addresses the applicability of the doctrine of respondeat superior to Plaintiff's claims against Defendant Verizon for unlawful computer duplication, unlawful use of a computer and computer crimes, unlawful transmission of electronic mail, and computer theft, respectively asserted at Counts I-IV, VII, and VIII of the complaint, and then examines the sufficiency of Plaintiff's claims against Defendant Verizon for breach of fiduciary duty and breach of contract, which are asserted at Counts V and VI of the complaint, respectively.

A. Applicability of Respondeat Superior to Counts I-IV, VII, and VIII
1. Applicable Legal Standard

Pennsylvania law recognizes the...

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