HARRISBURG – The Superior Court of Pennsylvania has affirmed a trial court’s dismissal without prejudice of a prolific serial litigant’s Telephone Consumer Protection Act (TCPA) case against a Florida insurance agent.
Superior Court judges Jack A. Panella, Mary P. Murray and Correale F. Stevens handed down the upholding opinion on Jan. 3, in Robert D. Kline’s action versus Joseph S. Novick. Panella wrote for the Court in this matter.
“Kline, an adult individual who lives in McClure, Pennsylvania, is a serial litigant who has brought over four hundred lawsuits in Mifflin and Snyder Counties, including numerous suits for alleged Telephone Consumer Protection Act violations. Typically, the TCPA suits are based upon allegations of telemarketing phone calls from out-of-state defendants using automatic telephone dialing systems (ATDS). On Jan. 24, 2022, Kline filed a pro se complaint against Novick, who is a telemarketing insurance agent with an office in Lake Worth Beach, Florida,” Panella said.
“In the complaint, Kline averred that on Nov. 29, 2021, he received a call from a foreign-sounding man who asked Kline insurance-related questions. The man then transferred Kline to a person licensed in Pennsylvania, Novick, who asked him further questions. Kline alleged violations of the TCPA and related regulations, violations of telemarketing laws, trespass to chattels and invasion of privacy. In essence, Kline argued that Novick engaged in illegal telemarketing to provide insurance quotes for products and services through live, automated or robocalls on Kline’s phone. Kline sought damages of $3,000 and costs from Novick. Relevantly, Kline filed a similar lawsuit in Robert Kline v. Stanley Loiselle, CP-44-CV-860-2022.”
Novick and Loiselle secured the services of the same lawyer, who filed motions to dismiss pursuant to Pennsylvania Rule of Civil Procedure 233.1 in both cases. Specific to this case, Novick noted that he was one of many individuals targeted by Kline, highlighting that Kline had filed at least 194 pro se cases in Mifflin County since 2017 and 188 pro se cases in Snyder County since 2001. These numbers include seven separate TCPA actions in Mifflin County filed between Jan. 4, 2022, and Feb. 8, 2022.
Novick argued that a similar federal district court case from 2020, which involved Kline and different Florida defendants, Kline v. Advanced Insurance Underwriters, LLP, was dismissed for lack of jurisdiction in Pennsylvania. Novick further argued that there was no jurisdiction over him in Pennsylvania, noting that the facts of [the other case] and the instant case are essentially the same – and that there were no non-conclusory allegations in Kline’s complaint that Novick initiated any calls to Kline, and Kline is merely engaged in repetitive litigation.
“The trial court stayed the cases pending resolution of the motion to dismiss. In response to the motion to dismiss, Kline filed a praecipe to discontinue the case without prejudice, stating that he intended to refile the action in Florida. The trial court then scheduled a hearing on the motions to dismiss in both the instant case and the Loiselle case and the praecipe to discontinue. Following the hearing, the trial court dismissed this case without prejudice for lack of jurisdiction,” Panella said.
“The trial court did not rule on the praecipe to discontinue. Thereafter, Kline filed a motion to vacate; however, before the trial court could rule on the motion, Kline filed a counseled notice of appeal. On appeal, Kline raises the following questions for our review: 1) Should the trial court have dismissed Novick’s motion to dismiss under Pennsylvania Rule of Civil Procedure 233.1, for lack of pleading sufficient elements to grant relief? 2) Did the trial court deny [Kline] due process by sua sponte dismissing [Kline’s] complaint for lack of jurisdiction, without affording an opportunity to be heard? 3) Did the trial court err by dismissing [Kline’s] complaint for lack of jurisdiction?”
Pennsylvania Rule of Civil Procedure 233.1 states, in relevant part: “Upon the commencement of any action filed by a pro se plaintiff in the Court of Common Pleas, a defendant may file a motion to dismiss the action on the basis that (1) The pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and (2) These claims have already been resolved pursuant to a written settlement agreement or a court proceeding.”
Panella explained Kline argued that “the trial court had personal jurisdiction over Novick, that Novick directed contacts to Pennsylvania, as he and/or his agents, employees, and representatives engaged in telemarketing using ATDS to his number despite being on Do-Not-Call lists and that Novick is registered as an agent in Pennsylvania to sell insurance – which he said established Novick’s minimum contacts with Pennsylvania, and an expectation that he may be hauled into court in Pennsylvania.”
“In Novick’s motion to dismiss under Rule 233.1, he cites to Advanced Insurance Underwriters, noting that Kline filed essentially the same complaint in that case as the facts and claims alleged herein. In Advanced Insurance Underwriters, Kline asserted claims against Florida-based defendants for violations of TCPA, arguing that he received several calls from an automatic telephone dialing system. Kline maintained he received a call from “Erica” who transferred the call to a named defendant who attempted to sell him health insurance. Kline alleged numerous causes of action, including TCPA violations and trespass to chattels claim,” Panella said.
“The named defendants moved to dismiss the complaint for lack of personal jurisdiction. Specifically, the defendants claimed the principal place of business of Advanced Insurance was Florida, no business was conducted in Pennsylvania, neither defendant directed phone calls into Pennsylvania for the purpose of soliciting insurance business and no one directed anyone to make a sales call to Kline. Ultimately, the federal district court found Kline did not have general jurisdiction over the defendants, because Kline failed to specify the number of calls he received from the defendants to his mobile phone number or indicate that the calls were of a continuous and systematic nature to exercise general jurisdiction over the defendants. Likewise, the court found that Kline did not establish specific jurisdiction over the defendants, noting he failed to show defendants directly initiated the call to him in violation of the TCPA and Kline failed to provide any proof that defendants purposefully directed contact at Kline in response to their motion to dismiss.”
Panella opined that “there is no need for extended litigation in Pennsylvania in this particular case where Kline’s jurisdictional claims have already been addressed in a substantive manner and resolved in the federal court proceeding.”
“Both cases involve claims that the defendants violated the TCPA by making phone calls from outside Pennsylvania to Kline in Pennsylvania. Like the defendants in Advanced Insurance Underwriters, who resided and had the principal place of business in Florida, Novick resides in Florida. In each action, Kline raised various TCPA claims and related regulations and state law claims. Moreover, the district court resolved Kline’s claim by finding a lack of general and specific jurisdiction due to the paucity of his complaint. As in Advanced Insurance Underwriters, when viewing the evidence of record in a light most favorable to Kline, he did not establish general jurisdiction over Novick. Although Kline provides a conclusory allegation in his complaint that the initial caller was transferring Kline to a licensed agent, Kline does not identify Novick as licensed in Pennsylvania in the complaint or establish general jurisdiction over Novick due to the alleged licensure,” Panella stated.
“Additionally, like Advanced Insurance Underwriters, Kline did not establish specific jurisdiction over Novick, as he only alleges he received a single phone call and admits that Novick did not initiate the call. Most importantly, Kline seemingly admitted to the lack of jurisdiction over Novick in Pennsylvania when he filed a praecipe to dismiss this case to file the action in Florida. Therefore, based upon the similarity of the instant case to Advanced Insurance Underwriters, and Kline’s apparent recognition of the jurisdiction issue in his praecipe to dismiss to refile the action in Florida, we conclude that the trial court properly dismissed the case without prejudice.”
Superior Court of Pennsylvania case 1076 MDA 2022
Mifflin County Court of Common Pleas case 2022-00027
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com