DECISION AND ORDER I. Introduction This case alleges that Defendant imposed improper pricing for natural gas upon Plaintiff and the proposed class of Defendant’s customers (Docket No. 1, Compl.). Before this Court is Defendant’s Motion to Dismiss (Docket No. 19)1 the Complaint. For the reasons stated herein, Defendant’s Motion to Dismiss is granted in part, denied in part. II. Background This is a diversity jurisdiction class action under Pennsylvania common law and statute challenging terms of Defendant’s utility supply contract (see Docket No. 1, Compl.). Plaintiff commenced the action in the United States District Court for the Eastern District of Pennsylvania, but it was later transferred to this District (Docket No. 23). Plaintiff is a Pennsylvanian who was a customer of Defendant (incorporated in California with its principal place of business in Texas) from 2012 through February 2018 (Docket No. 1, Compl.
6, 5). Pennsylvania deregulated natural gas in 1999 (id., Compl. 11; see Docket No. 20, Def. Memo. at 2). The purpose for deregulation was to allow energy supply companies (“ESCOs”) to use their natural gas facilities, purchased gas from wholesalers and brokers or purchasing futures contracts at set prices, and other innovations to reduce natural gas costs and pass the savings to consumers (Docket No. 1, Compl. 12). Customers only select an ESCO for supplying natural gas while continuing to use the utility for delivery and billing (id. 13). The only difference from utility-furnished natural gas is the price of energy supply (id.). ESCOs’ supply rates, including Defendant’s, are not approved by the Pennsylvania public service commission (id. 14). A. Pleadings Plaintiff charges that Defendant entices customers with a low teaser rates and “false promises that it will offer market-based variable rates,” then shifts the accounts to variable pricing that are “untethered from changes in wholesale rates” (id. 15). In or around 2012, Defendant solicited Plaintiff to change natural gas supplier to Defendant, “representing that [Defendant] would charge a rate lower than the local utility, PECO” (id. 16). Defendant’s agreement contained a rescissionary period when Plaintiff could change his mind and terminate without penalty (id. 17). Defendant charged Plaintiff a fixed, discounted introductory rate for a number of months then converted the account to a variable price (id. 18). The agreement represented that the variable price “would be set ‘according to business and market conditions, including but not limited to, the wholesale cost of natural gas supply, transportation, distribution and storage’” (id. 19). Plaintiff alleges that a reasonable consumer (like him) would conclude that business and market conditions were the vendor’s wholesale costs and the amounts charged by competitors (id. 20). Instead, Defendant set the variable price higher than Plaintiff’s utility (PECO) and Defendant’s ESCO competitors (id.
