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A federal judge has allowed an Ohio man's Telephone Consumer Protection Act claims to continue in Pennsylvania federal court, ruling that there was enough of a link to the state for the court to have jurisdiction.

U.S. District Judge R. Barclay Surrick of the Eastern District of Pennsylvania denied defendant National Gas & Electric's motion to dismiss plaintiff James Shelton's claims that he received unsolicited calls to his cellphone from the company.

Shelton, who had a residence in Pennsylvania, now lives and attends college in Ohio. According to Surrick's opinion, Shelton owns only one phone, which he uses for personal and business purposes. Shelton is in the “verdict collection business,” the opinion said.

Shelton's number is on the National Do Not Call Registry and his business website states that telemarketers are not welcome to call. He alleged that the defendant, a Texas-based business, initiated an automated call to his number in August 2017.

The following month, Shelton sued National Gas & Electric for violating the TCPA. In response, the defendant argued the court had no jurisdiction to hear the matter and that Shelton failed to state a claim.

“Plaintiff has demonstrated that he was a Pennsylvania resident when he received the call, was physically present in Pennsylvania, and has a Pennsylvania phone number. Although plaintiff's explanation of his dual residency is not a model of jurisdictional clarity, he has asserted in an affidavit, as he is required, that he was in fact a Pennsylvania resident at the time he received the call from defendant,” Surrick said.

“A credit card statement from August of 2017 supports plaintiff's assertions that he was in Pennsylvania at the time he received the call and was still a Pennsylvania resident at the time. It is common for students to maintain two residences. The date of the move, Aug. 25, is consistent with a move in preparation for a new school year. Therefore, the statements in plaintiff's affidavit are not as implausible as defendant suggests.”

National Gas & Electric also argued that Shelton failed to state a claim because his definition of an “autodialer,” or ATDS, no longer fits the narrowed definition of what constitutes automated dialing.

“Here, plaintiff's allegations raise a plausible inference that defendant used a predictive dialer with the present capacity to generate and dial phone numbers. First, plaintiff has alleged that defendant used an ATDS. He further alleged that 'the call to the plaintiff was transmitted using technology capable of generating thousands of similar calls per day,'” Surrick said. “He supports this assertion with allegations that he argues are indicative of an ATDS: he had no prior relationship with defendant; the geographic distance between the parties; the 'distinctive click and pause, followed by the defendant's telemarketing representative saying “hello”' in the voicemail defendant left him; and at least nine other callers have identified calls from the same number as 'spam.'”

Ezra Church of Morgan, Lewis & Bockius in Philadelphia represents National Gas & Electric and Clayton Morrow of Morrow & Artim in Pittsburgh represents Shelton. Neither responded to requests for comment.