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Dicioccio v. PNC Bank, N.A.

United States District Court, Third Circuit

September 20, 2013

DANIEL DICIOCCIO individually, and on behalf of all others similarly situated, Plaintiff,
v.
PNC BANK, NATIONAL ASSOCIATION, Defendant.

MEMORANDUM OPINION

DAVID STEWART CERCONE, District Judge.

I. INTRODUCTION

Plaintiff, Daniel DiCioccio ("DiCioccio" or "Plaintiff") on behalf of himself and all others similarly situated, filed a Complaint against Defendant, PNC Bank, National Association ("PNC" or "Defendant"), alleging violation of the Electronic Fund Transfer Act ("EFTA"), 15 U.S.C. § 1693 et seq. based on PNC's alleged failure to affix proper fee notices on two (2) PNC automated teller machines ("ATMs") located at Bally's casino in Atlantic City, New Jersey. Plaintiff has filed a Motion for Partial Summary Judgment and a Motion to Certify Class. PNC has filed a Motion for Summary Judgment. The parties have filed their respective responses and the motions are now before the Court.

II. STATEMENT OF THE CASE

PNC is an automated teller machine operator, as that term is defined by 12 C.F.R. § 205.16 (a), which states: "Automated teller machine operator means any person that operates a teller machine at which a consumer initiates an electronic fund transfer or a balance inquiry and that does not hold the account to or from which the transfer is made, or about which the inquiry is made." Pretrial Stipulation ¶ 1. In January and February of 2012, PNC owned and operated two (2) ATMs, numbered PN1980 and PN2534, in Bally's casino ("Bally's") in Atlantic City, New Jersey. Pretrial Stipulation ¶ 2; Plaintiff's Concise Statement of Material Facts ("Plaintiff's CSMF") ¶ 1.

On January 8, 2012, Plaintiff made two (2) cash withdrawals[1] from PNC's ATM No. 1980 at Bally's for which he was charged a $5.00 fee for each separate withdrawal. Plaintiff's CSMF ¶ 2; PNC's Concise Statement of Material Facts ("PNC's CSMF") ¶¶ 2 & 4. At the time Plaintiff made his withdrawals from ATM No. 1980, a notice was posted on the ATM directly under the card slot which read: "PNC Bank may charge a $2.50 fee, to U.S. cardholders for withdrawing cash. This fee is added to the amount of your withdrawal in addition to any fees that may be charged by your financial institution." Plaintiff's CSMF ¶ 3. Before each of the above transactions was completed, Plaintiff was given an on-screen notice which read: "This PNC bank terminal may charge a fee of $5.00 for a cash withdrawal. This charge is in addition to any fees that may be assessed by your financial institution." Plaintiff's CSMF ¶ 5. In order to complete the withdrawal transactions, Plaintiff accepted the $5.00 fee by pressing a button on the ATM. Plaintiff's CSMF ¶ 6; PNC's CSMF ¶¶ 3 & 5.

At 2:46 p.m. on February 19, 2012, Plaintiff made a cash withdrawal from PNC's ATM No. 1980 at Bally's, the same ATM he used twice on January 8, 2012, and he was charged a $5.00 fee for the withdrawal. Plaintiff's CSMF ¶ 8; PNC's CSMF ¶ 6. At 3:41 p.m. on February 19, 2012, Plaintiff made a cash withdrawal from PNC's ATM No. 2534 at Bally's and he was charged a $5.00 fee for the withdrawal. Plaintiff's CSMF ¶ 15; PNC's CSMF ¶ 8. At the time Plaintiff made his withdrawal from ATM No. 2534, a notice was posted on the ATM directly under the card slot which read: "PNC Bank may charge a $2.50 fee, to U.S. cardholders for withdrawing cash. This fee is added to the amount of your withdrawal in addition to any fees that may be charged by your financial institution." Plaintiff's CSMF ¶ 16. At 3:48 p.m. on February 19, 2012, Plaintiff made another cash withdrawal from PNC's ATM No. 1980 at Bally's, and he was charged a $5.00 fee for the withdrawal. Plaintiff's CSMF ¶ 8; PNC's CSMF ¶ 10.

Before each of the above transactions was completed, Plaintiff was given an on-screen notice which read: "This PNC bank terminal may charge a fee of $5.00 for a cash withdrawal. This charge is in addition to any fees that may be assessed by your financial institution." Plaintiff's CSMF ¶ 12. In order to complete the withdrawal transactions, Plaintiff accepted the $5.00 fee by pressing a button on the ATM. Plaintiff's CSMF ¶¶ 13 & 19; PNC's CSMF ¶¶ 7, 9 & 11.

On March 8, 2012, Plaintiff initiated this action against PNC alleging violations of EFTA's notice requirements. Plaintiff now seeks summary judgment on the issue of liability contending that there are no issues of material fact, and as a matter of law, PNC violated EFTA's ATM fee notice requirements by disclosing a fee on the outside of the ATM that was different than the ATM's on-screen fee notice. PNC contends that it is entitled to summary judgment because: (1) it was in compliance with EFTA's fee notice requirements; (2) it has established the safe harbor defense available under EFTA; and (3) it has established that it is protected from liability by the EFTA provision governing unintentional violations.

III. LEGAL STANDARD FOR SUMMARY JUDGMENT

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when there are no genuine issues of material fact in dispute and the movant is entitled to judgment as a matter of law. To support denial of summary judgment, an issue of fact in dispute must be both genuine and material, i.e., one upon which a reasonable fact finder could base a verdict for the non-moving party and one which is essential to establishing the claim. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues and, if there are, whether they are both genuine and material. Id. The court's consideration of the facts must be in the light most favorable to the party opposing summary judgment and all reasonable inferences from the facts must be drawn in favor of that party as well. Whiteland Woods, L.P. v. Township of West Whiteland, 193 F.3d 177, 180 (3d Cir. 1999), Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts . See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In the language of the Rule, the nonmoving party must come forward with "specific facts showing that there is a genuine issue for trial." FED. R. CIV. P 56(e). Further, the nonmoving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Williams v. Borough of W. Chester, 891 F.2d 458, 460 (3d Cir.1989) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). The non-moving party must respond "by pointing to sufficient cognizable evidence to create material issues of fact concerning every element as to which the non-moving party will bear the burden of proof at trial." Simpson v. Kay Jewelers, Div. Of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998), quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir. 1994).

IV. DISCUSSION

EFTA requires an automated teller machine operator to notify a consumer that a fee will be charged for an ATM transaction or a balance inquiry and to disclose the amount of the fee. 12 C.F.R § 205.16(b); see 15 U.S.C. § 1693b (d)(3)(A). Two levels of notice are required and the consumer must be free to decide, after receiving the notices, whether to proceed to incur a terminal usage fee. 12 C.F.R § 205.16(c); see 15 U.S.C. § 1693b (d)(3)(B). In relevant part, § 1693b (d)(3) states:

(3) Fee disclosures at automated ...

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