Prukala v. Elle, Civil Action No. 3:14–cv–92.

• Decision Date: 28 March 2014
• Docket Number: Civil Action No. 3:14–cv–92.
• Parties: Christina PRUKALA, Plaintiff, v. ELLE, John Does 1–10, Corporations X, Y, Z, Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

11 F.Supp.3d 443

Christina PRUKALA, Plaintiff

v.ELLE, John Does 1–10, Corporations X, Y, Z, Defendants.

Civil Action No. 3:14–cv–92.

United States District Court, M.D. Pennsylvania.

Signed March 28, 2014.

Joseph T. Sucec, Gardners, PA, for Plaintiff.

Michael Berry, Levine Sullivan Koch & Schulz, LLP, Philadelphia, PA, Chad R. Bowman, Levine Sullivan Koch & Schulz, LLP, Washington, DC, for Defendants.

MEMORANDUM

A. RICHARD CAPUTO, District Judge.

Presently before the Court is a Motion to Dismiss filed by Defendant Hearst Communications, Inc.¹ (“Hearst”) (Doc. 3). Hearst moves to dismiss Plaintiff Christina Prukala's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). In each count of the Complaint, because Plaintiff has failed to state a claim upon which relief can be granted, Hearst's motion to dismiss will be granted.

BACKGROUND

The facts as alleged in the Complaint are as follows:

Plaintiff received a series of electronic mail messages on her cellular telephone soliciting, either directly or indirectly, the purchase of services from Defendant. (Compl., ¶ 10.) The messages indicate that they came from a third-party domain, designed to make it difficult for Plaintiff to block the e-mails or request that they cease. Id. at ¶ 11. Plaintiff did not give implied or express permission to Defendant to contact her mobile telephone “via an automatic telephone dialing system.” Id. at ¶ 12. Without permission from Plaintiff, Defendant's actions are “directly violative of 73 PS 2250.3(b), regarding use of a ‘covered mobile telephone system’ to transmit an unsolicited email.” Id. at ¶ 13. The misleading character of the subject header of each email “is directly violative of 73 PS 2250.3(a)(3).” Id. at ¶ 14. The Complaint states that “[s]aid unsolicited voice mail messages² placed to Plaintiff's cellular telephone was to a cellular telephone service for which Plaintiff incurs a charge. Further, the emails were not for emergency or any other legitimate purpose.”

Id. at ¶¶ 16–17. The Complaint also states that Plaintiff brings this action “on behalf of himself [sic ] and on behalf of all others similarly situated” and contains additional class allegations. Id. at ¶¶ 18–31.

Based on the foregoing, Plaintiff commenced this action in the Court of Common Pleas of Lackawanna County, Pennsylvania. (Doc. 1, Ex. A.) The Complaint consists of six counts. Counts I and II both assert violations of the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). (Compl. ) Count III asserts a violation of the Telephone Consumer Protection Act (“TCPA”). Id. Count IV asserts a state law claim of invasion of privacy. Id. Count V asserts a state law claim of intentional infliction of emotional distress. Id. Finally, Count VI asserts a state law claim of harassment. Id.

On January 21, 2014 the action was removed to this Court. On January 28, 2014, Hearst moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6). The motion to dismiss is now fully briefed and ripe for disposition.

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). In considering a Rule 12(b)(6) motion, the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of his or her claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir.2000). The Court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.2000).

“A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The statement required by Rule 8(a)(2) must give the defendant fair notice of what the ... claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Detailed factual allegations are not required. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. However, mere conclusory statements will not do; “a complaint must do more than allege the plaintiff's entitlement to relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.2009). Instead, a complaint must “show” this entitlement by alleging sufficient facts. Id. “While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). As such, “[t]he touchstone of the pleading standard is plausibility.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.2012).

The inquiry at the motion to dismiss stage is “normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.” Malleus v. George, 641 F.3d 560, 563 (3d Cir.2011).

Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts to state a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570, 127 S.Ct. 1955, meaning enough factual allegations “ ‘to raise a reasonable expectation that discovery will reveal evidence of’ ” each necessary element. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 550 U.S. at 556, 127 S.Ct. 1955 ). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937, 1950.

In deciding a motion to dismiss, the Court should consider the allegations in the complaint, exhibits attached to the complaint, and matters of public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.1993). The Court may also consider “undisputedly authentic” documents when the plaintiff's claims are based on the documents and the defendant has attached copies of the documents to the motion to dismiss. Id. The Court need not assume the plaintiff can prove facts that were not alleged in the complaint, see City of Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 263 & n. 13 (3d Cir.1998), or credit a complaint's “ ‘bald assertions' ” or “ ‘legal conclusions.’ ” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429–30 (3d Cir.1997) ).

II. Counts I and II: UTPCPL

Plaintiff asserts claims for violation of the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201–1 et seq., in Counts I and II of the Complaint. The UTPCPL is a Pennsylvania consumer protection law, “designed to protect the public from fraud and deceptive business practices.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 497 (3d Cir.2013) (quoting Gardner v. State Farm Fire & Cas. Co., 544 F.3d 553, 564 (3d Cir.2008) ). Plaintiff appears to assert these claims under the UTPCPL's “catch-all” provision, subsection (xxi), which bars “[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 Pa. Stat. § 201–2(4)(xxi).³ Under the catch-all provision, “a showing of deceptive activity, as opposed to establishing the elements of a common law fraud claim, is sufficient to impose liability.” Wilson v. Parisi, 549 F.Supp.2d 637, 666 (M.D.Pa.2008). Nonetheless, a plaintiff must allege facts showing a “deceptive act,” that is, “conduct that is likely to deceive a consumer acting reasonably under similar circumstances.” Seldon v. Home Loan Servs., Inc., 647 F.Supp.2d 451, 470 (E.D.Pa.2009). To establish liability under the catch-all provision of the UTPCPL, “a plaintiff must present evidence showing: (1) a deceptive act that is likely to deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and (3) that the plaintiff's justifiable reliance caused ascertainable loss.” Slapikas v. First Am. Title Ins. Co., CIV.A. 06–0084, 298 F.R.D. 285, 292, 2014 WL 899355, at *6 (W.D.Pa. Mar. 7, 2014) (citing Seldon v. Home Loan Servs., 647 F.Supp.2d 451, 470 (E.D.Pa.2009) ; Hunt v. U.S. Tobacco Co., 538 F.3d 217, 223 (3d Cir.2008) ).

Here, Plaintiff fails to adequately allege a deceptive act on behalf of Defendant.

At most, the Complaint states that the “misleading character of the subject header(s) of each email, which were designed to induce Plaintiff, at a minimum, to open said emails, is directly violative of [the UTAA].”⁴ (Compl., ¶ 14.) As such, Counts I and II of the Complaint will be dismissed without prejudice.

III. Count III: TCPA

The relevant portion of the TCPA provides that “[i]t shall be unlawful for any person within the United States ... to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement” unless certain exceptions are met. 47 U.S.C. § 227(b)(1)(C). “Telephone facsimile machine” is defined under the statute as “equipment which has the capacity (A) to transcribe text or images, or both, from paper into an electronic signal and to transmit that signal over a regular telephone line, or (B) to transcribe text or images (or both) from an electronic signal received over a regular telephone line onto paper. 47 U.S.C. § 227(a)(3).” TCPA regulations state: “[w]e...