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Case 2:12-cv-00289-DSC Document 54 Filed 09/20/13 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA



DANIEL DICIOCCIO individually,
and on behalf of all others similarly


situated,














v.





PNC BANK, NATIONAL



ASSOCIATION,










Plaintiff,





Defendant.














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2:12cv289
Electronic Filing

September 20, 2013

MEMORANDUM OPINION



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

Case 2:12-cv-00289-DSC Document 54 Filed 09/20/13 Page 2 of 13

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 withdrawals1 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



1 The first withdrawal occurred at 5:16 p.m. and the second withdrawal occurred at 5:45 p.m.



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Case 2:12-cv-00289-DSC Document 54 Filed 09/20/13 Page 3 of 13

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

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Case 2:12-cv-00289-DSC Document 54 Filed 09/20/13 Page 4 of 13

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

Aby 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).

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Case 2:12-cv-00289-DSC Document 54 Filed 09/20/13 Page 5 of 13



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:

In general

(A)
The regulations prescribed under paragraph (1) shall require any
automated teller machine operator who imposes a fee on any consumer for
providing host transfer services to such consumer to provide notice in
accordance with subparagraph (B) to the consumer (at the time the service
is provided) of—

service; and


(i) is imposed by such operator for providing the



(ii) the amount of any such fee

(3) Fee disclosures at automated teller machines



























(B) Notice requirements















(i) On the machine
The notice required under clause (i) of subparagraph (A) with
respect to any fee described in such subparagraph shall be posted
in a prominent and conspicuous location on or at the automated
teller machine at which the electronic fund transfer is initiated by
the consumer.

(ii) On the screen
The notice required under clauses (i) and (ii) of subparagraph (A)
with respect to any fee described in such subparagraph shall appear
on the screen of the automated teller machine, or on a paper notice
issued from such machine, after the transaction is initiated and
before the consumer is irrevocably committed to completing the
transaction.



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15 U.S.C. § 1693b (d)(3)2.



Further, the regulations promulgated pursuant to EFTA notice requirements provide in

relevant part:

(1) On the machine. Post in a prominent and conspicuous location
on or at the automated teller machine a notice that:

(i) A fee will be imposed for providing electronic fund
transfer services or for a balance inquiry; or

(c) Notice requirement. To meet the requirements of paragraph (b) of this
section [requiring notification of a terminal usage fee and the amount of
the fee], an automated teller machine operator must comply with the
following:



















(ii) A fee may be imposed for providing electronic fund
transfer services or for a balance inquiry, but the notice in
this paragraph (c)(1)(ii) may be substituted for the notice in
paragraph (c)(1)(i) only if there are circumstances under
which a fee will not be imposed for such services; and

(2) Screen or paper notice. Provide the notice required by
paragraphs (b)(1) and (b)(2) of this section either by showing it on
the screen of the automated teller machine or by providing it on
paper, before the consumer is committed to paying a fee.










12 C.F.R. § 205.16(c). To comply with § 1693b (d)(3)(B) then, the ATM operator must simply:

(1) provide notice in a prominent and conspicuous location on the machine that a fee will or

may be imposed; and (2) indicate the amount of that fee either on the screen or in paper form

while the consumer is able to cancel the transaction. Id.; See also12 C.F.R. § 205.9(a)(1)

(displaying the fee on a screen provides adequate notice, as long as a consumer is given the

option to cancel the transaction after receiving notice of a fee).



2 In late 2012, legislation was passed that amended EFTA by deleting Section 1693b
(d)(3)(B)(i) thereby eliminating the “on the machine” notice requirement. See Electronics Fund
Transfer Act Amendment, Pub. L. No. 112-216, 126, stat. 15990 (to be codified at 15 U.S.C. §
1693b (d)(3)(B).



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The ATM operator may not impose a fee unless the consumer receives the above notice

and “elects to continue in the manner necessary to effect the transaction after receiving such

notice.” 15 U.S.C. § 1693b (d)(3)(C); 12 C.F.R. § 205.16(e). Failure to comply with the notice

requirements makes the financial institution liable to the consumer in an amount equal to actual

damages, statutory damages, costs, and reasonable attorney fees. 15 U.S.C. § 1693m (a). In a

case brought by an individual consumer, the financial institution is liable for statutory damages

in “an amount not less than $100 nor greater than $1,000.” 15 U.S.C. § 1693m (a)(2)(A). In a

class action, there are no minimum statutory damages for each class member and the total

statutory damages “arising out of the same failure to comply by the same person shall not be

more than the lesser of $ 500,000 or 1 per centum of the net worth of the defendant . . . .” 15

U.S.C. § 1693m (a)(2)(B).





A.

The Notices on the Bally ATMs

During the time period relevant to this action, PNC retained ATA Services, Inc. (“ATA”)

to regularly inspect its ATMs to ensure the ATMs had the appropriate notices. PNC’s CSMF ¶

13; PNC Appendix Ex. A–Declaration of Gordon Bramwell (“Bramwell Decl.”) ¶ 3. If fee

notices were missing, ATA was to replace such notices, and PNC supplied ATA with extra fee

notices for this purpose. Id. Following its ATM inspections, ATA reported the results of the

inspections to PNC by posting such results to a website maintained by ATA and accessible to

PNC. Id.



Results of the inspections of PNC ATMs No. 1980 and No. 2534 located in the Bally’s

casino are as follows:

? On May 14, 2010, ATA conducted an inspection of PNC ATM No. 1980 and PNC ATM

No. 2534 and installed a gray fee notice on each that read: “PNC may charge a fee, as

indicated on the ATM screen, to cardholders for withdrawing cash. This fee is added to

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the amount of your withdrawal and is in addition to any fees that may be charged by your

financial institution.” The notices appear to have been placed over the old “$2.50 fee

notice” and were located immediately below the card slot. PNC’s CSMF ¶¶ 14-16;

Bramwell Decl. 4-6 and Ex. 1-4; PNC Appendix Ex. B–Declaration of Justin Newbold

(“Newbold Decl.”) ¶¶ 6-8 and Ex. 1-4.

? On March 13, 2011, ATA conducted an inspection of PNC ATM No. 1980 and PNC

ATM No. 2534. PNC’s CSMF ¶¶ 17-19; Bramwell Decl. 7-9; Newbold Decl. ¶¶ 9-11.

Comparing the pictures taken on May 14, 2010, to the pictures taken on March 13, 2011,

it appears that each of the ATMs at issue have a new darker colored notice placed to the

right of the keypad and below the card slot, but the gray notices attached on May 14,

2010 immediately below the card slots, are missing. See Bramwell Decl. Ex. 5-8 and

Newbold Decl. Ex. 5-8. The new notices read: “PNC may charge a fee, as indicated on

the ATM screen, to cardholders for withdrawing cash. This fee is added to the amount of

your withdrawal and is in addition to any fees that may be charged by your financial

institution.”

? On March 8, 2012, Plaintiff filed the Complaint in the instant action alleging that he was

charged a $5.00 fee for his use of the Bally ATMs, but the notice on the ATM’s indicated

that “PNC may charge a $2.50 fee . . .” PNC’s CSMF ¶ 20; Bramwell Decl. ¶ 10. PNC

promptly removed the “$2.50 fee notice” from each of the Bally ATMs. PNC’s CSMF ¶

21; Bramwell Decl. ¶ 11 and Ex. 9.

? On April 24, 2012, subsequent to the Plaintiff’s use of the ATMs at issue, ATA

conducted another inspection of PNC ATM No. 1980 and PNC ATM No. 2534. PNC’s

CSMF ¶ 23; Bramwell Decl. ¶ 13 ; Newbold Decl. ¶ 12. ATA reported that the fee notice



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on ATM No. 1980, which had been observed by ATA during its inspection on March 13,

2011, was missing. Id. ATA installed a new fee notice on PNC ATM No. 1980. Id., also

see Bramwell Decl. Ex. 10 & 11 ; Newbold Decl. Ex. 9 & 10. ATA also took pictures of

ATM No. 2534 on April 24, 2012, and the pictures show that the same notice that was on

ATM No. 2534 on March 13, 2011, was on ATM No. 2534 on April 24, 2012. Bramwell

Decl. Ex. 12 & 13; Newbold Decl. Ex. 11 & 12.



Based on the above, at all times relevant to this action there were “on the machine”

notices on the PNC’s Bally ATMs. When Plaintiff made his withdrawals from PNC ATM No.

1980, only the “$2.50 fee notice” was attached, but when Plaintiff made his withdrawals from

PNC ATM No. 2534 it appears that both the “$2.50 fee notice” and the notice attached on March

13, 2011, were “on the machine”.





B.

PNC’s Conflicting Fee Notices and EFTA

PNC argues that because EFTA does not require disclosure of any fee amount on the on-

machine notice, but only requires disclosure that a fee will be charged, it did not violate EFTA in

this instance. Plaintiff suggests, however, that PNC’s argument was specifically rejected in the

context of EFTA in Burns v. First American Bank, 2005 U.S. Dist. LEXIS 9485 (N.D. Ill. April

28, 2005), an unpublished district court decision which held that, for purposes of surviving a

motion to dismiss3, an allegation of conflicting fee notices is sufficient to allege a violation of the

EFTA. Id. at *14-16.



3 With regard to the motion to dismiss, the District Court specifically stated:

In a motion to dismiss we must examine not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to support the claims.
Plaintiffs have alleged that because they received two contradictory disclosure
statements that the statements were improper under EFTA. Whether or not FAB’s
notices violate EFTA is a factual issue and though the claim may eventually fail

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In Burns, the court held that the EFTA was violated because the exterior notice posted on

the outside of the ATM stated that a $ 2.00 fee would be charged but, after the on-screen fee

notice informed the customer that a $ 2.50 fee would be charged to non-First American

customers, the customers were actually charged $ 2.50. Id. at *2. Referencing the section

heading of 15 U.S.C. § 1693b (d)(3)(C) which read: “[p]rohibition on fees not properly disclosed

. . .”, the court concluded that “. . . an inexact, inaccurate, or incomplete notice may result in the

consumer not being well-informed, or lacking understanding and thus may be considered

improper.” Id. at *10 (emphasis added).



This Court disagrees with the reasoning of the Burns court. There is no language in the

statutory text of § 1693b (d)(3), or in the relevant regulation, that specifically references “proper”

notice on the outside of the ATM. The plain language of the statute simply requires “on the

machine” notice to disclose that a fee will or may be imposed for the electronic transaction. The

construction by the court in Burns, and championed by Plaintiff, creates an EFTA notice

requirement, based on a section heading, that is additional to the specific requirements of the

statutory text. Moreover, it is a well-settled rule of statutory interpretation that titles and section

headings cannot limit the plain meaning of statutory text where that text is clear. United States v.

Pendleton, 658 F.3d 299, 305 (3d Cir. 2011)(citing M.A. ex rel. E.S. v. State-Operated Sch. Dist.,

344 F.3d 335, 348 (3d Cir. 2003); see also Demore v. Kim, 538 U.S. 510, 535 (2003) (“The title

of a statute has no power to give what the text of the statute takes away.”); I.N.S. v. St. Cyr, 533



on the facts, assessing factual support for a suit is not the office of Rule 12(b)(6).
Because Plaintiffs have raised this question of fact, they should be entitled to
present evidence to establish that such confusion violates 15 U.S.C. § 1693.
(citations and quotation marks omitted)

Id. at 14-15.



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U.S. 289, 308 (2001) (“[A] title alone is not controlling.") (citing Pennsylvania Dep't of

Corrections v. Yeskey, 524 U.S. 206, 212 (1998)).



Plaintiff also relies on the holding of the Court of Appeals for the Seventh Circuit that

consumer disclosure statutes require accurate disclosure. Gibson v. Bob Watson Chevrolet-Geo,

112 F.3d 283 (7th Cir. 1997). In Gibson, the court reviewed provisions of the Truth in Lending

Act (“TILA”), and held that “[s]ection 1638(a)(2)(B)(iii). . .requires disclosure - meaning. .

.accurate disclosure.” Id. at 285. The Burns court also relied upon examples of how courts

handled disclosure requirements under TILA and the Fair Debt Collection Practices Act

(“FDCPA”) in support of its analysis of EFTA.



This Court finds that the notice requirements of EFTA are distinguishable. During the

time relevant to this action, EFTA required two (2) notices. The “on the machine” notice, which

has been repealed, was required to inform the consumer of “the fact that a fee” may be imposed

for using the services of the ATM. See 15 U.S.C. § 1693b (d)(3)(A)(i); 12 C.F.R. § 205.16(c).

Such notice informs the consumer that they may be subject to a fee for use of the ATM before

the consumer inserts his or her card to begin a transaction. There is no requirement that such

notice disclose the amount of the fee. The “on the screen” notice discloses the amount of the fee

to be charged and the consumer then has an option to accept the fee or decline and end the

transaction. EFTA, therefore, has an on screen failsafe that both informs the consumer of the

exact fee to be charged and allows the consumer to opt out of the transaction.



In this instance, the notices performed as design. Before he inserted his card into the

Bally ATMs, Plaintiff was aware of the fact that he may be subject to a fee. Plaintiff admits that

during the transactions he was given an on-screen notice regarding the $5.00 transaction fee. In

order to complete each transaction, Plaintiff had to accept the $5.00 fee before the transaction

could continue. He chose to accept the fee on each occasion. Moreover, Plaintiff agrees that

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before he completed the transactions, he understood that he was going to be charged a $5.00 fee.

See PNC Appendix Ex. D- DiCioccio Deposition pp. 33-34.



Tellingly, the Board of Governors of the Federal Reserve published its Final Rule and

official staff interpretation regarding the 2006 amendments to EFTA, which explained EFTA’s

disclosure requirements, in relevant part, as follows:

The final rule clarifies the two-part disclosure scheme established in
Section 904(d)(3)(B) of the EFTA. The first disclosure, on ATM signage
posted on or at the ATM, allows consumers to identify quickly ATMs
that generally charge a fee for use. This disclosure is not intended to
provide a complete disclosure of the fees associated with the
particular type of transaction the consumer seeks to conduct. Until a
consumer uses his or her card at an ATM, the ATM operator does not
know whether a surcharge will be imposed for that particular consumer.
Rather it is the second, more specific disclosure, made either on the
ATM screen or on an ATM receipt, that informs the consumer before
he or she is committed to the transaction whether, in fact, a fee will be
imposed for the transaction and the amount of the fee . . . .


See 71 F.R. 1638, 1656 (emphasis added).



The Court finds that the “$2.50 fee notice” on the PNC ATMs was sufficient to inform

Plaintiff of the fact that he may be charged a fee for use of the ATMs’ services, and therefore

was not a violation of EFTA. To find otherwise is an unreasonably harsh sanction that places

liability on an automated teller machine operator for violating a requirement that has no basis in

the statutory text of § 1693b (d)(3).



Because the Court will grant PNC’s motion for summary judgment, it must deny

Plaintiff’s motion for partial summary judgment4, and deny as moot Plaintiff’s motion for class

certification.



4 Plaintiff’s motion for partial summary judgment would have been denied in any event
because material issues of fact exist regarding PNC’s safe harbor defense and its bona fide error
defense.



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V.

CONCLUSION



Based on the foregoing, PNC’s motion for summary judgment will be denied. Plaintiff’s

motion for partial summary judgment will be denied and Plaintiff’s motion to certify class will

be denied as moot. An appropriate Order follows.






cc:
































s/ David Stewart Cercone
David Stewart Cercone
United States District Judge

R. Bruce Carlson, Esquire
Carlos R. Diaz, Esquire
Jamisen A. Etzel, Esquire
Sunshine R. Fellows, Esquire
Thomas L. Allen, Esquire
James L. Rockney, Esquire
Justin J. Kontul, Esquire

(Via CM/ECF Electronic Mail)

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