In Zondlo v. Allied Interstate, LLC., 2018 WL 827590, at *6 (M.D.Pa., 2018), Judge Munley estopped a debt collector from re-litigating whether the calling system it used was an ATDS.
Allied does not dispute that it was fully represented during Morse, and, as previously mentioned, has even agreed to use the deposition testimony from Morse in the instant case, as its aQrate system has not been materially altered since the Morse decision. Thus it appears as though the defendant is asking us to review the exact same evidence that was presented before Judge Nealon in 2014, but come to the conclusion of its liking. This is precisely what the doctrine of collateral estoppel is designed to prevent. Lastly, Allied claims that it would have appealed Judge Nealon’s ruling had the case not settled. For this reason, Allied claims that the issue was not fully and fairly litigated. This argument is also unpersuasive and will not be afforded weight. While that very well may have been Allied’s intention, Allied did in fact settle, closing the case and waiving its right to appeal. See Morse v. Allied Interstate, LLC, 3:13-CV-00625, Docs. 49, 50. As such, we find that Allied had a full and fair opportunity in Morse to litigate the issue of whether its aQrate system is an ATDS. See Sebrowski, 188 F.3d at 169 (emphasis added). Judge Nealon’s determination that the system is an ATDS was a final and valid judgment. The law of collateral estoppel leads inescapably to the conclusion that the defendant should be collaterally estopped from relitigating this question. Summary judgment will be granted in favor of the plaintiff on this issue.
Judge Munley also allowed the called party to assert a TCPA claim based on calls to a cellular telephone that used to be a landline, declining to answer the metaphysical “tree-in-the-forest” question of whether a revocation of consent when the telephone was still a landline has any effect under the TCPA.
The final issue that we will address is whether the defendant was entitled to continue placing calls to plaintiff’s 9301 Landline Number after it was ported to a cellular service on November 18, 2015. The TCPA prohibits persons from making calls without the prior express consent of the called party using an ATDS to “any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call.” 47 U.S.C. § 227(b)(1)(A)(iii). The parties agree that based on this statute, Allied did not need plaintiff’s prior express consent to contact plaintiff on her 9301 Landline Number while it was indeed affiliated with a landline phone. They therefore agree that plaintiff’s October 7, 2015, phone call to Synchrony Bank revoking consent did not affect Allied’s ability to continue to call plaintiff’s 9301 Landline Number—at least until November 18, 2015. Plaintiff alleges that on November 18, 20159 , she ported her 9301 Landline Number into a cellular service network. She argues that once her 9301 Landline Number was transported to a cellular service network, the defendant was no longer permitted to call her on this number because she revoked consent on cell phone calls on October 7, 2015.10 In response, the defendant argues that plaintiff’s October 7, 2015, revocation could not possibly apply to a number that, at the time, was associated with a landline but later ported to a cellular network. The defendant argues that once plaintiff ported her 9301 Landline Number to a cellular network, plaintiff needed to call Allied directly for an effective revocation. There is no dispute that after the number was ported in November, plaintiff did not attempt to revoke consent to be contacted. We find that summary judgment is inappropriate at this stage. A review of the record reveals that the parties do not agree on material issues of fact in regard to this issue. A fact is material when it might affect the outcome of the suit under the governing law. International Raw Materials, 898 F.2d at 949. First and foremost, whether the plaintiff actually ported her 9301 Landline Number to a cellular network is pivotal. It appears as though the parties do not agree that this event occurred, and dispute the timing of it. It also appears as though, as in the section above, there are many questions that remain unanswered after a thorough review of the record. For example, how would the defendant possibly know that that the plaintiff’s number was ported—and does that matter? Did Synchrony Bank, if it knew that plaintiff’s number had been ported, have an obligation to tell Allied? These are questions that we find would be more appropriately answered by a factfinder after further factual developments. As such, will deny both the plaintiff and the defendant’s motions for summary judgment.