John Berkery, Sr. v. Verizon Communications Inc

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 15-3766
___________
JOHN C. BERKERY, SR.,
Appellant
v.
VERIZON COMMUNICATIONS INC; CELLCO PARTNERSHIP, a Delaware General
Partnership d/b/a Verizon Wireless (Collectively “Verizon”); MIDLAND FUNDING
LLC, “Midland”; TRANS UNION CORP, “Trans Union”; EQUIFAX INC, “Equifax”;
EXPERIAN INFORMATION SYSTEMS INC, “Experian”
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2:15-cv-01085)
District Judge: Honorable Gerald A. McHugh
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 18, 2016
Before: FISHER, SHWARTZ and COWEN, Circuit Judges
(Opinion filed August 19, 2016)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
John C. Berkery, Sr. appeals pro se from the District Court’s dismissal of his
complaint. For the following reasons, we will affirm the District Court’s judgment.
Berkery filed a complaint in the District Court concerning a billing dispute for his
Verizon mobile telephone account. In particular, Berkery alleged that Verizon
Communications, Inc. and Cellco Partnership (collectively “Verizon”)1 improperly
charged him for In-Network calls and regularly miscalculated his monthly usage arising
out of a mobile-phone contract beginning in August 2008. Berkery’s complaint raised
statutory claims under the Federal Communications Act, 47 U.S.C. § 201 (“FCA”)
[Count One], the Declaratory Judgment Act, 28 U.S.C. § 2201 et seq. [Count Two], the
Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et
seq. (“UTPCPL”) [Count Five], and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et
seq. (“FCRA”) [Count Six], as well as state common-law claims for breach of contract
[Count Three] and fraud [Count Four].
Verizon moved to dismiss the claims against it. The District Court concluded that
Counts One to Four were time-barred, as the statutes of limitations for those counts had
begun to run in December 2009, when Berkery’s contract with Verizon ended, and had
each elapsed long before Berkery finally filed suit in February 2015. The District Court
also concluded that the Demmick et al. v. Cellco Partnership d/b/a Verizon Wireless class
action against Verizon in the District of New Jersey (Case No. 06- 2163) did not
equitably toll Berkery’s claims against Verizon. The District Court then concluded that
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Berkery also sued three credit-reporting agencies, but voluntarily dismissed the
claims against those parties.
2
Pennsylvania’s economic loss doctrine barred his UTPCPL suit as set out in Count Five.
Finally, the District Court concluded that Berkery’s FCRA claim as set out in Count Six
was not adequately pleaded.
With regard to Counts One to Five, the dismissal was with prejudice and without
leave to amend, on the ground that any amendment would be futile. With regard to
Count Six—the claim under the FCRA—the District Court granted Berkery 21 days to
file an amended complaint that could plausibly state a claim for relief under that statute.
Berkery did not file an amended complaint. Instead, he filed a notice of appeal
less than two weeks after his complaint was dismissed, and has stated on appeal that he
wishes to stand on his original complaint.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
over a district court’s order dismissing a complaint for failure to state a claim. Gelman v.
State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009). Because Berkery
proceeded pro se in the District Court, we construe his pleadings liberally. See Haines v.
Kerner, 404 U.S. 519, 520 (1972).
We will affirm. First, we consider the four time-barred claims. As an initial point,
it is proper for a District Court to consider the time bar at the pleading stage where, as
here, noncompliance with the statute of limitations is plain on the face of the complaint.
See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1 (3d Cir.
1994). On appeal, Berkery does not challenge the District Court’s analysis of the statute
of limitations on any count, but instead argues that the District Court erred in concluding
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that these limitations periods were not equitably tolled as a result of his purported
membership in the Demmick class action.
That argument fails. Under the class action tolling rule, the filing of a class action
lawsuit in federal court tolls the statute of limitations for the claims of unnamed class
members until class certification is denied or when the member ceases to be part of the
class, at which point the class member may intervene or file an individual suit. Am. Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 551-53 (1974). Berkery seeks to apply that rule to
his case because he received a notice stating that he was a part of the Demmick class, and
says that he followed the opt-out procedures to preserve his right to file an individual
action. But, as the District Court correctly observed, the Demmick class includes only
customers who had a Verizon Family SharePlan between May 11, 2002 and May 10,
2006. Berkery’s contract involved a different kind of plan, and a later time period.
Berkery argues that the District Court erred to so reason because Verizon never
challenged his class membership during the class action itself. As a result, he says, res
judicata bars Verizon from challenging his class membership now. That misses the point.
Whether or not Verizon is barred from stating that Berkery is a member of the Demmick
class, it remains the case that his claims in this lawsuit have no connection to the
Demmick class action. Berkery may not bootstrap his claims based on the August 2008
contract using any Demmick claims that he may or may not have.
Turning next to the UTPCPL claim, we also agree with the District Court’s
reasoning on that count. The District Court applied binding Third Circuit precedent on
how to treat UTPCPL claims that essentially arise out of a breach of contract. In
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particular, this Court has predicted that the Pennsylvania Supreme Court would apply the
economic loss doctrine to UTPCPL claims based on intentional torts like fraud. See
Werwinski v. Ford Motor Co., 286 F.3d 661, 679-81 (3d Cir. 2002). Under the economic
loss doctrine, “no cause of action exists for negligence that results solely in economic
damages unaccompanied by physical injury or property damage.” Excavation Techs.,
Inc. v. Columbia Gas Co. of Pa., 985 A.2d 840, 841 n.3 (Pa. 2009). Although Berkery
notes that the application of the economic loss doctrine to non-negligence claims has
been subject to some criticism, Berkery has not shown why it should not apply to the
particular circumstances of this case. Consequently, the District Court was correct to
dismiss Count Five with prejudice.
Finally, the District Court was also correct to conclude that Count Six, the FCRA
claim, was not adequately pleaded. The FCRA allows for a private cause of action for
the failure to investigate credit-reporting discrepancies based on the following duties: (1)
the consumer must inform the credit agency that he disputes the information that the
furnisher provided; (2) the credit agency must then notify the furnisher of the information
about the consumer’s dispute; and (3) the furnisher must conduct a reasonable
investigation with respect to the disputed information. See SimmsParris v. Countrywide
Fin. Corp., 652 F.3d 355, 358 (3d Cir. 2011).
Berkery’s complaint alleged that he reported the billing discrepancy with Verizon
to three credit agencies, but never set out any non-conclusory allegations about whether
Verizon (here, the furnisher) satisfied its own duties under the statute. Verizon concedes
on appeal that this pleading deficiency could have been cured if Berkery had alleged on
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information and belief that (1) the credit agencies reported the discrepancy to Verizon,
and (2) that Verizon did not conduct a reasonable investigation after receiving notice of
the discrepancy. But even these simple allegations do not appear in Berkery’s complaint.
As a result, the District Court did not err in dismissing this claim without prejudice to file
an amended complaint that cured this pleading failure. Berkery declined to do so.
For the foregoing reasons, we will affirm the District Court’s judgment.
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