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White v. Conestoga Title Insurance Co.

October 2, 2009


Appeal from the Order Entered April 21, 2008 In the Court of Common Pleas of Philadelphia County Civil at No(s): 0388 December Term, 2006.

The opinion of the court was delivered by: Panella, J.



¶ 1 Appellant, Nancy White, appeals from the order entered on April 21, 2008 by the Honorable Jane Cutler Greenspan, Court of Common Pleas of Philadelphia County, which dismissed the complaint with prejudice for failure to exhaust statutory remedies and denied the motion to certify class as moot. After careful review, we reverse.

¶ 2 In this appeal, we consider whether White was required to exhaust the statutory remedies set forth in the Pennsylvania Title Insurance Companies Act, 40 PA.STAT. § 910-1 et seq. ("TICA"), prior to instituting a private cause of action with respect to her claim that she was entitled to a discounted title insurance premium. Secondarily, we also address whether the doctrine of primary jurisdiction applies to White's cause of action, thus divesting the trial court from subject matter jurisdiction over such claims.

¶ 3 On December 12, 2006, White filed a class action in the Court of Common Pleas of Philadelphia County arising from her purchase of title insurance from Appellee, Conestoga Title Insurance Company ("Conestoga"), during the refinancing of her home in 2005. In her complaint, White alleged that Conestoga, through its title insurance agents, systematically failed to give discounted insurance rates as mandated by the approved rate structure. Consequently, White sought relief based on the following theories: 1) money had and received, a common law action; 2) unjust enrichment, accounting, disgorgement, restitution, additional common law theories of recoveries; and 3) violation of the Pennsylvania Unfair Trade Practices and Consumer Protection law ("UTPCPL"), 73 PA.STAT. § 201-1 et seq.*fn1

¶ 4 By way of background, we note that Conestoga provided for three rate premiums in its insurance Manual, see Insurance Manual of Rates, Policies, and Endorsements ("Manual") in Plaintiff's Motion for Class Certification, Exhibit I, filed 11/5/2007, setting forth the specific rates, policies, and endorsements applying to its coverage: (1) the basic rate, a default rate that is applied if either of the other two rates do not apply; (2) the reissue rate (90% of the basic rate); and (3) the refinance rate (80% of the reissue, or 72% of the basic).

¶ 5 Our review of the Manual indicates that the refinance rate must be charged when two elements are satisfied: (1) refinancing of the property is sought within three years of the prior policy; and (2) there has been no change in fee simple ownership. See Manual, § 5.7. Section 5.7 of the Manual, concerning the refinance rate, includes no language that requires the insured to produce the prior policy in order to qualify for the discount although Section 5.3 of the Manual, governing the reissue rate, does include this requirement. Of particular significance is the fact that the Manual does not contain any procedure for grievances concerning the insurance rates.

¶ 6 On October 1, 2007, White filed a motion for class certification. In opposition, Conestoga challenged the trial court's subject matter jurisdiction on grounds that White was required to exhaust the statutory remedies set forth under the TICA, 40 PA.STAT. § 910-44(b), prior to instituting a private cause of action. On March 3, 2008, the trial court held a class certification hearing to consider the parties' positions, particularly the issue of exhaustion.

¶ 7 During the hearing, White asserted that she was offered the basic rate at the closing of her refinancing, rather than the discounted refinance rate which she alleges she was entitled to receive under the terms of Conestoga's Manual. White established during the proceedings that Conestoga's agent, ACBS Settlement Company, conducted the title search of White's property and should have easily discovered that White qualified for the refinance rate. Although Conestoga admitted to this allegation, its position was that it was not compelled to charge the discounted rate unless the insured produced a copy of the prior policy at closing, which White failed to do. White alleged she was under no requirement to produce a copy of her policy and that the imposition of the basic rate amounted to an overcharge of $101.65.*fn2 In support of her allegations, White presented evidence to demonstrate that Conestoga consistently failed to provide the fixed, discounted title insurance rates to consumers, but rather imposed, without discretion, the highest approved rate.

¶ 8 Following the hearing and receipt of the parties' briefs, Judge Greenspan entered an order on April 21, 2008, dismissing White's complaint with prejudice for failure to exhaust the statutory remedy provided under TICA. The motion for class certification was subsequently denied as moot. This timely appeal followed.*fn3

¶ 9 Preliminarily, we must address Conestoga's application to strike a reply brief of amicus curiae, Joel S. Ario, Pennsylvania Insurance Commissioner, which was deferred to this time by a per curium order. In its application, Conestoga argues that the Commissioner's reply brief as amicus curiae violates the Pennsylvania Rules of Appellate Procedure, specifically, PA.R.A.P., Rule 531, 42 PA.CONS.STAT.ANN, and that the language of this rule allows for only one amicus brief. We do not agree.

¶ 10 Initially, we note that although Rule 531 governs the participation of amicus curiae, it does not reference the submission of reply briefs by an individual or entity not a party to the proceeding. The rule provides in pertinent part: "Anyone interested in the questions involved in any matter pending in an appellate court ... although not a party, may, without applying for leave to do so, file a brief amicus curiae in regard to those questions." Rule 531 (emphasis added). Thus, the language of Rule 531 merely permits amicus curiae to file a single brief without leave from the court, it does not specifically foreclose amicus curiae from submitting a reply brief altogether.

¶ 11 Nonetheless, we conclude that the Commissioner's reply brief must be stricken based on the strict application of Rule 2113(c) of the Pennsylvania Rules of Appellate Procedure, which states that only appellants may file a reply brief as a matter of right and provides that further briefs may be filed only with leave from the Court. See Pa.R.A.P., Rule 2113, 42 PA.CONS.STAT.ANN. As the Commissioner neither sought nor received leave from this Court in accordance with Rule 2113(c) prior to submitting his reply brief, we must therefore grant Conestoga's application to strike the reply brief of amicus curiae.*fn4 See also Lausch v. Unemployment Compensation Board of Review, 679 A.2d 1385, 1390 (Pa. Cmwlth. 1996), appeal denied, 547 Pa. 745, 690 A.2d 1164 (1997) (holding that a party must seek leave prior to filing reply brief that is not a matter of right).

¶ 12 We now turn to the primary matter before this Court. On appeal, White raises the following issues for our consideration:

1. Whether Appellant consumers seeking to enforce their right to a discounted rate for title insurance approved by the Insurance Commissioner must exhaust an unarticulated administrative remedy to obtain the premium discount they are entitled to receive by the plain terms of the Appellee title insurer's approved rate manual?

2. Whether the Insurance Commissioner has primary jurisdiction to entertain a consumer's claim for refund of an overcharge of title insurance premium, when Appellee title insurer charged rates for title insurance in excess of the mandatory rates set forth in the Appellee's approved rate manual, such that the courts of Pennsylvania must abstain from ...

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