Klein v. Commerce Energy, Inc.

• Decision Date: 21 June 2017
• Docket Number: Civil Action No. 14-1050.
• Parties: 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.
• Court: U.S. District Court — Western District of Pennsylvania

256 F.Supp.3d 563

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.

Civil Action No. 14-1050.

United States District Court, W.D. Pennsylvania.

Signed June 21, 2017

Adam G. Vahanian, The Chiurazzi Law Group, Pittsburgh, PA, for Jeffrey Frank Klein.

Louis A. DePaul, Eckert Seamans Cherin & Mellot, Pittsburgh, PA, Thomas E. Sanchez, Morgan, Lewis & Bockius LLP, Pittsburgh, PA, for Collectcents.

Erin Lucas Hamilton, Cindy Dunlap Hinkle, Buchanan Ingersoll & Rooney, Pittsburgh, PA, for Commerce Energy, Inc.

OPINION

CONTI, Chief 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. 111), 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.

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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 TCPA, 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

256 F.Supp.3d 569

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 TCPA, invasion of privacy, and negligence; and the claims against Commerce Energy for its violation of the TCPA 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...