Cmty. Vocational Sch. of Pittsburgh, Inc. v. Mildon Bus Lines, Inc.

• Decision Date: 09 February 2018
• Docket Number: CIVIL ACTION NO. 09–1572
• Citation: 307 F.Supp.3d 402
• Parties: COMMUNITY VOCATIONAL SCHOOLS OF PITTSBURGH, INC., a corporation, individually and as the representative of a class of similarly situated persons, Plaintiff, v. MILDON BUS LINES, INC., a Pennsylvania corporation, Defendant/ Third Party Plaintiff, v. Caroline Abraham and Joel Abraham, Third Party Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

307 F.Supp.3d 402

COMMUNITY VOCATIONAL SCHOOLS OF PITTSBURGH, INC., a corporation, individually and as the representative of a class of similarly situated persons, Plaintiff,

v.MILDON BUS LINES, INC., a Pennsylvania corporation, Defendant/ Third Party Plaintiff,

v.Caroline Abraham and Joel Abraham, Third Party Defendants.

CIVIL ACTION NO. 09–1572

United States District Court, W.D. Pennsylvania.

Signed February 9, 2018

John C. Evans, David J. Manogue, Specter Specter Evans & Manoque, P.C., Pittsburgh, PA, Tod A. Lewis, Phillip A. Bock, Bock Law Firm, LLC dba Bock, Hatch, Lewis & Oppenheim, LLC, Chicago, IL, Brian J. Wanca, Deborah Bussert, Jeffrey A. Berman, Ross M. Good, Ryan M. Kelly, Anderson and Wanca, Rolling Meadows, IL, for Plaintiff/Third Party Defendants.

Arthur J. Leonard, Amy M. Kirkham, Robb Leonard Mulvihill LLP, Pittsburgh, PA, for Defendant/Third Party Plaintiff.

MEMORANDUM OPINION

Conti, Chief District Judge

I. Introduction

Plaintiff Community Vocational Schools of Pittsburgh, Inc. ("plaintiff" or "Community Vocational Schools") brings this action under the Telephone Consumer Protection Act, as amended by the Junk Fax Prevention Act of 2005 ("TCPA"), 47 U.S.C. § 227. Presently pending before this court is the motion for summary judgment filed by defendant Mildon Bus Lines, Inc. ("defendant" or "Mildon"). (ECF No. 93.) For the reasons fully explained in this opinion, Mildon's motion for summary judgment will be granted because Community Vocational Schools lacks standing and because there is insufficient evidence from which a reasonable jury could find that Mildon violated the TCPA with respect to Community Vocational Schools.

II. Procedural History

Community Vocational Schools initiated this action on November 30, 2009, against Mildon advancing a claim under the TCPA for sending an unlawful facsimile advertisement. (ECF No. 1.) Mildon filed a motion to dismiss on February 3, 2010, (ECF No. 4), and in response, Community Vocational Schools filed its first amended class action complaint on February 11, 2010. (ECF No. 7.) Specifically, Community Vocational Schools alleges that Mildon on or about January 11, 2006, sent one unsolicited advertisement to it by telephone facsimile machine in violation of the TCPA. (ECF No. 7, ¶¶ 10, 12.) On February 16, 2010, Erie Insurance Exchange ("Erie") filed a claim against defendant, in the Court of Common Pleas of Allegheny County at Erie Ins. Exch. v. Mildon Bus Lines, Inc. & Community Vocational Sch. of Pittsburgh, Alleg. Cty. Ct. of Common Pleas, Civil Action No. GD–10–003030 ("coverage action"), concerning insurance coverage with respect to this action. Mildon filed a motion to dismiss the amended complaint filed in this action on February 18, 2010. The motion to dismiss was denied without prejudice on August 6, 2010, just prior to Mildon filing for bankruptcy. (Status Conference 8/26/10; ECF Nos. 13, 26.)

On July 27, 2010, Mildon filed for bankruptcy in In re Mildon Bus Lines, Ins., Bankruptcy Action No. 10–25312, in the United States Bankruptcy Court for the Western District of Pennsylvania. A suggestion of bankruptcy was filed in the instant action on September 22, 2010. (ECF No. 26.) That same day, this court issued a stay pending resolution of Mildon's bankruptcy proceedings. (ECF Nos. 26, 27.) The bankruptcy court, in light of Mildon's possible insurance coverage, lifted the automatic stay to permit the coverage action to proceed to the extent of the coverage. (Bankruptcy Action No. 10–25312, ECF No. 79.) The bankruptcy case was terminated on October 23, 2012, with the defendant receiving a discharge. (ECF Bankruptcy No. 85.)

After the termination of the bankruptcy action, this court continued the stay of this matter pending the resolution of the summary judgment motions filed by Erie and Community Vocational Schools in the coverage action. (ECF No. 64 at 2.) On November 22, 2016, after being advised that summary judgment was denied in the coverage action, this court held a status conference, at which point, this court lifted the stay and reopened the case and ordered fact discovery to be completed on or before February 15, 2017. (ECF No. 49.) Due to the bankruptcy and ensuing coverage litigation, this case had been stayed for approximately six years and four months and this matter has been active in this court for only one and a half years.

After the stay was lifted, Mildon filed its answer and affirmative defenses on December 15, 2016. (ECF No. 50.) On December 20, 2016, with leave, Mildon filed a third-party complaint joining Caroline Abraham and Joel Abraham as third-party defendants. (ECF Nos. 52, 53.) On January 30, 2017, this court granted Community Vocational Schools' unopposed motion to extend fact discovery and ordered that discovery be completed on or before May 15, 2017. (ECF No. 62.) Erie filed a motion for leave to intervene pursuant to Federal Rule Civil Procedure 24 on February 1, 2017, (ECF No. 64), which was denied on March 27, 2017, with prejudice. (ECF No. 80.) On April 18, 2017, default was entered against the third-party defendants.¹ (ECF Nos. 89–90.)

After the close of discovery, on July 7, 2017, Mildon filed its motion for summary judgment, (ECF No. 93), brief in support thereof, (ECF No. 94), and concise statement of material facts. (ECF No. 95.) On August 7, 2017, Community Vocational Schools filed its response in opposition to Mildon's motion for summary judgment, (ECF No. 105), and to Mildon's concise statement of material facts. (ECF No. 106.) Mildon filed a reply brief on August 28, 2017, (ECF No. 107), along with a reply to Community Vocational Schools' concise statement of material facts. (ECF No. 108.) The parties filed their combined statement of material facts ("CCSMF") on September 7, 2017, as required by this court's Chamber Rule 3.F.c.ii. (ECF No. 110.) A hearing on the motion for summary judgment was held on September 19, 2017, and the parties were ordered to file supplemental briefs. (Minute Entry & Order 9/20/2017.) Community Vocational Schools filed its supplemental brief on September 26, 2017. (ECF No. 112.) Mildon filed its response in opposition on October 3, 2017. (ECF No. 113.) This matter is now ripe for disposition.²

III. Background ³

In January 2006, Caroline and Joel Abraham d/b/a as Business to Business Solutions ("B2B") contacted Mildon about hiring B2B to write, design, and transmit a facsimile advertisement on Mildon's behalf.⁴ (CCSMF ¶ 1.) On January 10, 2006, Mildon sent a check in the amount of $268.00 to B2B as consideration for 5,000 faxed advertisements. (Id. ¶ 2.) Mildon, however, never received any documentation from B2B that the fax campaign had occurred. (Id. ¶ 3.)

As part of a separate litigation action in the United States District Court for the District of New York ("New York action"), to which Community Vocational Schools was not a party, present counsel for Community Vocational Schools obtained in discovery a DVD and a hard drive belonging to B2B. (Id. ¶ 7; ECF No. 98–3.) On the hard drive, Community Vocational Schools located what it believes to be a copy of a facsimile advertisement sent to it and which it attached as Exhibit A to its first amended complaint. (CCSMF ¶¶ 4, 6–7.) Its counsel provided the DVD and the hard drive to Robert Biggerstaff ("Biggerstaff") for purposes of this action.⁵ (CCSMF ¶ 8.) Community Vocational Schools filed this action though the counsel that obtained the DVD and hard drive in the New York action and is using the same expert, Biggerstaff.

As part of this case, Biggerstaff was asked to review and analyze the DVD and hard drive with respect to records and any recorded fax transmissions related to Mildon. (CCSMF ¶¶ 8, 15.) In response, Biggerstaff located two archived directories on the DVD dated January 11, 2006, that contained an image file and xferfaxlogs from HylaFAX software. (Id. ¶ 16.) Biggerstaff found no additional logs related to Mildon. (Id. ¶ 17.) Biggerstaff testified that the xferfaxlogs were created by the HylaFAX software used by B2B for facsimile advertising campaigns and reflect how many pages had been confirmed as faxed/sent/received by the positive confirmation process in the T.30 fax transmission standard. (Id. ¶ 18.)

Biggerstaff describes the five-phase confirmation process as follows: (1) Call establishment; (2) Pre-message procedure; (3) In-message procedure and message transmission, (4) Post-message procedure, and (5) Call release. (ECF No. 98–4). He explains:

Because a record of a successful transmission by a computer based facsimile transmission system capable of sending standard T.30 fax transmissions, reflects the successful completion of all 5 phases of the T.30 fax transmission to a device with a fax-modem, and every device with a fax-modem capable of receiving a T.30 fax transmission has the capacity to print the contents of that transmission, a record of a successful transmission by computer based facsimile transmission is a record that such a transmission was sent to and received by "equipment which has the capacity to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper."

(Id. )

Biggerstaff admitted, however, that the logs by their nature do not show what was sent and, therefore, the logs do not show whether or not the alleged fax attached as Exhibit A to the Amended Complaint was sent or whether there was an image rendering issue. (ECF No. 96–3, 189.) The only way to determine what actually was sent, if anything, would be to review the Doc Q file, which was not found on Biggerstaff's review of the DVD and hard drive.⁶ (Id. at 190.) According to Biggerstaff, Doc Q files are routinely erased because they take up an enormous amount of space on a computer's hard drive. (ECF No. 96–3, 190–91.) Plaintiff does not, however, provide any forensic evidence through Biggerstaff or otherwise that a Doc Q file has been erased or even existed on the DVD or hard drive with respect to...