LISA PUPO LENIHAN, Magistrate Judge.
It is respectfully recommended that the Court deny Defendant's Motion to Dismiss.
Presently before the Court is the Motion to Dismiss filed by Wells Fargo Bank, N.A. ("Defendant") pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 12). In his Second Amended Complaint, Jeremy D. Mulder ("Plaintiff") files various claims pro se under the Pennsylvania Wiretapping and Electronic Surveillance Control Act, 18 Pa. Cons. Stat. §§ 5701 et seq. ("Wiretap Act"), the federal Telephone Consumer Protection Act, 47 U.S.C. §§ 227 et seq., and Pennsylvania common law for invasion of privacy. Defendant seeks dismissal of all Wiretap Act and common law claims.
Beginning on or about October 5, 2017, and ending on or about December 15, 2017, Defendant allegedly placed thirty-five (35) calls to Plaintiff's cellular telephone, often multiple times in one day, for the purpose of collecting a debt
Plaintiff filed his initial Complaint in the Court of Common Pleas of Allegheny County, which was removed to this Court on January 5, 2018. (ECF No. 1). An Amended Complaint was filed on January 8, 2018 (ECF No. 3), and a Second Amended Complaint was filed on January 16, 2018 (ECF No. 7). Defendant's Motion to Dismiss was filed on February 1, 2018. (ECF No. 12). The matter is fully briefed and ripe for disposition.
Avoiding dismissal under Rule 12(b)(6) requires a complaint to provide "enough factual matter" to allow the case to move beyond the pleading stage of litigation; the pleader must "`nudge his or her claims across the line from conceivable to plausible.'" Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 556, 570 (2007)). In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a two-part analysis. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009). First, factual and legal elements of a claim must be distinguished. Id. Second, it must be determined whether the facts as alleged support a "plausible claim for relief." Id. In making the latter determination, the court must be mindful that the matter pleaded need not include "detailed factual allegations," Phillips, 515 F.3d at 231 (quoting Twombly, 550 U.S. at 555), and the court must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F.3d 651, 653 (3d Cir. 2003)). Moreover, pleadings filed by pro se litigants should be liberally construed. Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. —) (citing Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011)).
Nevertheless, the facts pled do need to raise the expectation of relief above a purely speculative level, and must include more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Phillips, 515 F.3d at 231-32 (quoting Twombly, 550 U.S. at 554-56). Rule 8(a)(2) "requires a 2018showing' rather than a blanket assertion of an entitlement to relief." Id. at 232. "[T]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," Fowler, 578 F.3d at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), and even pro se litigants are required to plead facts sufficient to supports their claims, and cannot flout procedural rules. Mala, 704 F.3d at 245.
In counts one through nineteen of the Second Amended Complaint, Plaintiff asserts claims pursuant to § 5725(a)
18 Pa. Con. Stat. § 5703.
In response, Defendant makes three primary arguments: (1) Plaintiff had no reasonable, objective expectation that his communications with Defendant would not be intercepted; (2) Plaintiff has no standing to assert such claims because he was merely the recipient of calls made by Defendant; and, (3) that by continuing to communicate after being notified that the calls would be recorded, Plaintiff implicitly consented to interception.
Defendant first argues that Plaintiff could have no reasonable expectation of privacy as to the telephone conversations at issue. It is well-established that, under the Wiretap Act, "`telephone conversations are wire communications which, unlike oral communications, are protected against interception without regard to the speaker's expectation of privacy.'" Commw. v. Diego, 119 A.3d 370, 379 (Pa. Super. Ct. 2015) (quoting Commw. v. Deck, 954 A.2d 603, 608-09 (Pa. Super. Ct. 2008)). Therefore, Plaintiff's expectation of privacy is irrelevant when pleading a claim for interception of a wire communication. Id.
However, Plaintiff's standing to raise a claim under the Wiretap Act is not so certain. "Pennsylvania courts have. . .consistently held that the interception of or recording of a telephone conversation by a private party without the consent of all of the parties violates the Wiretap Act." Barasch v. Pa. Pub. Util. Comm'n, 576 A.2d 79, 93 (Pa. Commw. Ct. 1990) (Pellegrini, J., concurring and dissenting) (emphasis added). In Barasch v. Bell Telephone Company of Pennsylvania, the Supreme Court of Pennsylvania held that the "two-party consent rule has long been established in Pennsylvania as a means of protecting privacy rights and principles of statutory construction require that the provisions of the Wiretap Act be interpreted in a manner which is consistent with those concerns." 605 A.2d 1198, 1203 (Pa. 1992). See also Martinez v. City of Reading Prop. Maint. Div., No. 16-1290, 2018 WL 1290087, at *11 (E.D. Pa. Mar. 13, 2018) (citing Barasch, 605 A.2d at 1203) (consent to any form of interception is generally required from all parties). When "the consent of less than all parties is required under the Wiretap Act, the General Assembly specifically so stated." Barasch, 605 A.2d at 1203 (citing § 5704(2)(ii) (permitting law enforcement to intercept a communication where "one of the parties to the communication has given prior consent."). Moreover, any exceptions to this rule are to be "very narrowly drawn." United Tel. Co. of Pa. v. Pa. Pub. Util. Comm'n, 676 A.2d 1244, 1251 (Pa. Commw. Ct. 1996).
Plaintiff has plainly alleged that the wire communications between him and Defendant were intercepted and that he never consented to this interception. Defendant has not cited to any of the explicitly enumerated exceptions to the two-party consent rule contained in § 5704 of the Wiretap Act. In light of the aforementioned precedent set by the courts of Pennsylvania, Plaintiff has alleged sufficient factual matter to demonstrate a violation of § 5703. See also Martinez, No. 16-1290, 2018 WL 1290087, at *12 (observing that a party violated the Wiretap Act by recording telephone calls without the recipients' consent).
Notwithstanding the above, Defendant relies upon a number of federal district court cases in an attempt to persuade this Court that, as the purported recipient-only of the wire communications presently at issue, Plaintiff has no private right of redress under § 5725 for Defendant's alleged violation of § 5703. In 2008, the district court in Klump v. Nazareth Area School District observed that the Wiretap Act "provides a cause of action only to a `person whose wire, electronic or oral communication is intercepted, disclosed or used.'" 425 F.Supp.2d 622, 633 (E.D. Pa. 2006) (quoting 18 Pa. Con. Stat. § 5725). As interpreted by the Klump court, this provision "suggests that the cause of action belongs to the person with whom the communication originated, not the recipient." Id.
For additional support, Defendant notes the holding of the district court in Walsh v. Krantz agreeing with the conclusion reached in Klump, and finding that because allegedly intercepted telephone calls did not originate with the plaintiff, the plaintiff had no standing to assert a claim under the Wiretap Act. No. 1:07-CV-0616, 2008 WL 3981492, at *5 (M.D. Pa. Aug. 22, 2008). Similarly, the district court in Ideal Aerosmith, Inc. v. Acutronic USA, Inc., recognized that a "Plaintiff has standing to assert claims only with respect to those communications sent by Plaintiff. . .not with respect to those communications sent by third parties." No. 07-1029, 2007 WL 4394447, at *4 (W.D. Pa. Dec. 13, 2007) (citing Klump, 425 F.Supp.2d at 633). Thus, it appears that if Plaintiff was truly the recipient-only of Defendant's telephone calls, he has no standing to assert a Wiretap Act claim. Plaintiff's Response cites no authority to the contrary.
However, § 5725 of the Wiretap Act clearly provides that "[a]ny person whose wire. . .communication is intercepted. . .in violation of this chapter shall have a civil cause of action." 18 Pa. Con. Stat. § 5725(a) (emphasis added). The courts in Klump, Walsh, and Ideal Aerosmith, do not cite rulings by any Pennsylvania state courts construing § 5725 as applicable only to the caller, and not the recipient of a call — particularly when the recipient of a call was also an active participant. The court in Klump found that the language of § 5725 merely "suggests" that the cause of action belongs only to the party with whom the communication originated. 425 F.Supp.2d at 633. This is likely because there is no explicit distinction in the language of § 5725 between the originator and recipient of a wire communication.
The definition of "wire communication" in the Wiretap Act is "[a]ny aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception..." 18 Pa. Con. Stat. § 5702 (emphasis added). An "aural transfer" is a "transfer containing the human voice at any point between and including the point of origin and the point of reception." Id. (emphasis added). Thus, the definition of wire communication would appear to include an aural transfer from the party receiving a telephone call.
Plaintiff has not alleged that he was simply a passive recipient of telephone calls from Defendant; Plaintiff alleges that he also participated in these calls. If Plaintiff informed Defendants during the telephone calls that he did not consent to being recorded, in addition to whatever else was communicated during the course of the calls, this would constitute an aural transfer between the point of origin and point of reception — a wire communication. That the call was not initially placed by Plaintiff is immaterial. The Supreme Court of Pennsylvania has established that the two-party consent rule applies to all Wiretap Act claims, and that the Wiretap Act is to be construed consistent with this rule in order to protect privacy. To rule in conformity with Klump, Walsh, and Ideal Aerosmith
Defendant still argues
Defendant cites a case out of the Eastern District of Pennsylvania for the proposition that "consent can be implied in fact based on whether the surrounding circumstances demonstrate that the party whose communications were intercepted knew of such interceptions." (ECF No. 16 at 4-6) (citing Tarnoff v. Wellington Fin. Corp., 696 F.Supp. 151, 152 (E.D. Pa. 1988)). However, no such statement appears in the reasoning of the Tarnoff court. In fact, the court in Tarnoff allowed for the admission into evidence of intercepted communications despite concluding that the Wiretap Act had likely been violated, because "admitting the tapes. . .does not substantially thwart the policy underlying the Pennsylvania statute." Id. The court also noted that, because "the person whose statement was recorded without his consent testified at trial, the statement could have been admitted to impeach him." Id. There was no determination by the court that the Wiretap Act had not been violated due to any sort of implied consent.
Defendant also cites to Commonwealth. v. Arrington, 86 A.3d 831 (Pa. —), for the same proposition. (ECF No. 16 at 4 n. 3). As with Tarnoff, the Pennsylvania Supreme Court in Arrington did not find that the Wiretap Act was not violated because of implied consent. While the court in Arrington did indicate that there was a question as to whether implied consent existed, Arrington is factually distinguishable from the present case; in Arrington, the party whose communications were intercepted clearly stated that "it did not matter to him whether the call was being recorded." Arrington, 86 A.3d at 847.
Defendant also looks outside the Third Circuit for support. Defendant cites In re Google Inc. Gmail Litigation, wherein it was held that "consent can be implied in fact based on whether the surrounding circumstances demonstrate that the party whose communications were intercepted knew of such interceptions." No. 13-MD-02430-LHK, 2014 WL 1102660, at *14 (N.D. Cal. Mar. 18, 2014). Yet, the court also determined that "if either party to a communication did not consent, that would end the inquiry." Id. "`Implied consent is consent in fact which is inferred from surrounding circumstances indicating that the party knowingly agreed to the surveillance.'" Id. at 16 (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 116-17 (1st Cir. 1990) (emphasis added)). As pled by Plaintiff, the claims in the Second Amended Complaint make clear that he explicitly declined to consent to interception of his calls by Defendant. According to the cases cited by Defendant, this is enough to end the inquiry into consent — express or implied.
Under the common law of Pennsylvania, it has been recognized that "`an action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4) publicity placing the person in a false light.'" Kline v. Security Guards, Inc., 386 F.3d 246, 259-60 (3d Cir. 2004) (quoting Harris v. Easton Publishing Co., 483 A.2d 1377, 1383 (Pa. Super. Ct. 1984)). In count twenty-one of the Second Amended Complaint, Plaintiff claims that the thirty-five calls received from Defendant constituted an intrusion upon seclusion. (ECF No. 7 ¶¶ 257-65). Defendant counters that the calls to Plaintiff were not sufficiently frequent or offensive to be a substantial burden upon his existence, as required under Pennsylvania law. (ECF Nos. 13 at 8-11; 16 at 4-5).
Following the definition provided in the Restatement (Second) of Torts, Pennsylvania courts have established that an intrusion upon seclusion has occurred when one "`intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns. . .if the intrusion would be highly offensive to a reasonable person.'" Id. at 260 (quoting Harris, 483 A.2d at 1383). The intrusion must be of such nature and degree that it causes "`mental suffering, shame, or humiliation to a person of ordinary sensibilities.'" Doe by and through Doe v. Boyertown Area Sch. Dist., 276 F.Supp.3d 324, 404 (E.D. Pa. 2017) (quoting Harris, 483 A.2d at 1384-85).
Defendant argues that thirty-five "misplaced" calls is not enough to be considered an actionable intrusion. (ECF No. 13 at 11). The Second Amended Complaint contains only general allegations of "highly offensive" "hounding," resulting in "injuries, including but not limited to, anxiety and distress." (ECF No. 7 ¶¶ 261, 263-64). According to Defendant, such vague and conclusory allegations do not suffice to demonstrate a highly offensive intrusion.
On this issue, it has been found that:
Klein v. Commerce Energy, Inc., 256 F.Supp.3d 563, 593-94 (W.D. Pa. 2017) (quoting Restatement (Second) of Torts § 652B, cmt. d (1977)). As further noted by Defendant, even generalized claims of persistent calls involving allegedly profane and abusive language are not adequate when the plaintiff has failed to specify the number or substance of the calls. Stuart v. AR Res., Inc., No. 10-3520, 2011 WL 904167, at * 6 (E.D. Pa. Mar. 16, 2011).
Conversely, in Hamburger v. Northland Group, Inc., a district court denied a motion for summary judgment when a plaintiff was mistakenly called only seven or eight times after instructing the defendant to stop. No. 3:13-CV-01155, 2015 WL 631066, at * 8 (M.D. Pa. Feb. 12, 2015). The court held that whether such circumstances constituted a substantial burden was a question of fact for a jury. Id. Similarly, in Berk v. J.P. Morgan Chase Bank, N.A., a claim based upon approximately twenty-one calls over a period of two years, at three different residences and on four different telephone lines, and after the defendant had been advised that it was contacting the plaintiff in error, was considered sufficiently offensive to proceed. No. 11-2715, 2011 WL 4467746, at * 7 (E.D. Pa. Sept. 26, 2011). In Desmond v. Phillips & Cohen Associates, Ltd., a plaintiff had been contacted by telephone at least fourteen times within a period of several months, and had been the recipient of multiple letters, even after the defendant had been told to cease all contact. 724 F.Supp.2d 562, 569 (W.D. Pa. 2010). Although the content of the telephone calls and letters was not considered to be disrespectful or impolite, the persistence of the intrusion was considered to be sufficient to go before a jury for a determination as to whether it was substantial or highly offensive. Id.
In the present case, Plaintiff has alleged being called on thirty-five occasions during a two-month period, often multiple times in one day, and after informing Defendant during the first call that Defendant was not contacting the correct party. Viewed in the light most favorable to Plaintiff, and upon consideration of the holdings by district courts analyzing similar factual scenarios, the Court finds that the Second Amended Complaint contains sufficient allegations of persistent telephone calls which a reasonable person could find highly offensive. It is therefore recommended that the motion to dismiss Plaintiff's claim for invasion of privacy be denied.
Based upon the foregoing, Plaintiff has alleged facts sufficient to establish civil claims for intentional interception of a wire communication, in violation of the Wiretap Act, and for invasion of privacy under the common law of Pennsylvania. Accordingly, it is recommended that Defendant's Motion to Dismiss be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.
