PITTSBURGH – The U.S. District Court for the Western District of Pennsylvania has granted Mildon Bus Lines' motion for summary judgment, saying plaintiff Community Vocational Schools of Pittsburgh failed to provide enough evidence for its Telephone Consumer Protect Act lawsuit.
According to the memorandum opinion written by U.S. District Judge Joy Flowers Conti, Community Vocational Schools claims that Mildon’s representatives faxed an unsolicited advertisement to it on Jan. 11, 2006.
After the lawsuit was filed, the opinion says Erie Insurance Exchange filed a separate suit against Mildon and the school “concerning insurance coverage with respect to this action.”
The litigation was stayed when Mildon filed bankruptcy on July 27, 2010, according to the opinion, but the bankruptcy court granted Erie relief from the stay to prosecute the insurance coverage lawsuit.
After Mildon’s bankruptcy case ended and a motion for summary judgment in the Erie case was denied, “this court lifted the stay and reopened the case” filed by the Community Vocational Schools on Nov. 22, 2016, the opinion said.
The court said the TCPA dispute arose when Caroline and Joel Abraham, who do business as Business-to-Business Solutions, were hired by Mildon in January 2006 to fax 5,000 advertisements on behalf of the bus company.
“Mildon, however, never received any documentation from B2B that the fax campaign had occurred,” the opinion said.
Community Vocational Schools said its lawyers did find a copy of a faxed ad as part of a separate lawsuit.
In addition, the opinion said the Community Vocational did not have a fax log that could have proven receipt of the fax allegedly sent by Mildon, and “Community Vocational Schools does not have the physical copy of the facsimile that it purportedly received, even though it was collecting faxes for the purpose of bringing an action, and did not keep its facsimile machine either.”
However, the court said an expert that testified in the case “indicated that he ‘believes’ that the fax advertisement was successfully transmitted based on the source code and logs contained on the hard drive that confirm through a positive-confirmation process that a one-page fax went through with no error detected or recorded.”
In its request for summary judgment, the opinion said Mildon argued that “Community Vocational Schools lacks standing because Community Vocational Schools cannot prove that it sustained a concrete injury that falls within the zone of interest sought to be protected by the TCPA.”
Mildon also cited the fact that Community Vocational Schools could not prove that the fax in question had been received as grounds for a ruling in its favor, the court said.
Conti agreed with the defendant.
“The court must conclude that there is insufficient evidence for a reasonable jury to find that B2B’s facsimile machine was used on behalf of Mildon to send one or more faxes of an unsolicited advertisement to Community Vocational Schools’ telephone fax machine or to find that a transmission constituting an unsolicited advertisement was received by Community Vocational Schools in violation of the TCPA,” the opinion said.