LEGROME DAVIS, District Judge.
AND NOW, this 30th day of March 2009, upon consideration of Defendant's Motion to Dismiss (Doc. No. 9), Plaintiff's Opposition thereto (Doc. No. 16), and Defendant's Reply (Doc. No. 17), it is hereby ORDERED that Defendant's Motion is GRANTED.
Plaintiff Daniel McDuffie brings this putative class action against Defendant Stewart Title Guaranty Company alleging that Defendant charged premiums for title insurance that are in excess of the rates permitted under Pennsylvania law. (Compl. ¶ 1.) The Pennsylvania Title Insurance Companies Act ("TICA"), 40 Pa. Stat. Ann. § 910-1 et seq., regulates title insurance companies and their agents. In particular, as relevant to the matter at hand, TICA mandates that title insurance companies either file proposed rates with the Insurance Commissioner or become members of a licensed rating organization that makes such filings. 40 Pa. Stat. Ann. § 910-37(a) to (b). Defendant is a title insurance company. (Compl. ¶ 8.) Defendant is a member of a licensed rating organization called the Title Insurance Rating Bureau of Pennsylvania ("TIBOP"). (Compl. ¶¶ 15-16.)
TIRBOP's filed rates are set forth in the Title Insurance Rate Manual of the Commonwealth of Pennsylvania ("Rate Manual," attached as Ex. A to Compl.). (Compl. ¶ 17.) The Rate Manual in effect during the proposed class period establishes at least 3 rates, including a basic rate, a reissue rate, and a refinance rate. (Rate Manual §§ 5.3, 5.6, 5.50.) Whenever an application for a new title insurance policy is made within 10 years of a previously issued title insurance policy on the same property, Defendant must charge a reissue rate. (Id. § 5.3.) The reissue rate is equivalent to 90% of the basic rate. (Id. § 5.50.) When an application for a new title insurance policy is made within 4 years of a previously issued title insurance policy on the same property and there has been no change in fee simple ownership, Defendant is obligated to charge a refinance rate. (Id. § 5.6.) The refinance rate is equivalent to between 70% and 80% of the reissue rate. (Id.) According to Plaintiff, Defendant has failed to honor the reissue and refinance rates. (Compl. ¶ 27.)
For example, Plaintiff purchased a home on May 13, 2002, financing his purchase with a $64,458 mortgage. (Id. ¶ 28.) He purchased a title insurance policy covering the full value of the loan. (Id. ¶ 29.) Plaintiff then refinanced the mortgage on October 29, 2007. (Id. ¶ 30.) The closing and settlement services for the refinance were provided by a company called Renaissance Settlements, LLC, a company that is an agent of Defendant. (Id. ¶ 30.) The loan amount for the refinance was $84,000, and Renaissance Settlements, LLC issued a title insurance policy with a face value of $84,000. (Id. ¶¶ 32-33.) Defendant charged Plaintiff a premium of $762.75 for this policy. (Id. ¶ 34.) Plaintiff was entitled to a reissue rate premium of $686.48. (Id. ¶ 35.) Thus, Plaintiff claims that he was overcharged by $76.27. (Id. ¶ 36.) Plaintiff commenced this action by filing his Complaint on October 22, 2008. He alleges violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607, money had and received, unjust enrichment, and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat.
Under Federal Rule of Civil Procedure 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." When evaluating a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), we must accept as true all factual allegations set forth in the complaint. See Malia v. General Electric Co., 23 F.3d 828, 830 (3d Cir.1994). However, "[f]actual allegations must be enough to raise a right to relief above the speculative level," Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007), and a court "need not credit a complaint's `bald assertions' or `legal conclusions,'" Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.1993) (internal quotation marks omitted). In other words, "`stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element." Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir.2008) (quoting Twombly, 127 S.Ct. at 1965). Therefore, a claim may be dismissed when the facts alleged and the reasonable inferences drawn therefrom are legally insufficient to support the relief sought. See Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 179-80 (3d Cir.1988).
Defendant argues that Plaintiffs Complaint should be dismissed for failure to state a claim because Plaintiff has failed to exhaust his administrative remedies.
The Pennsylvania Supreme Court has not yet resolved this issue. "With respect to an issue of state law ..., when there is no decision from the state's highest court directly on point, we are charged with predicting how that court would resolve the issue." Colliers Lanard & Axilbund v. Lloyds of London, 458 F.3d 231, 236 (3d Cir.2006) (quoting Canal Ins. Co. v. Underwriters of Lloyd's of London, 435 F.3d 431, 436 (3d Cir.2006)). "When predicting how the state's highest court would resolve the issue, we must take into consideration: (1) what the court has said in related areas; (2) the decisional law of the state intermediate courts; (3) federal cases interpreting state law; and (4) decisions from other jurisdictions that have discussed the issue." Id. (citing Canal Ins. Co., 435 F.3d at 436). "Although lower state court decisions are not controlling on an issue on which the highest court of the state has not spoken, federal courts must attribute significant weight to these decisions in the absence of any indication that the highest state court would rule otherwise." Id. (quoting Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273-74 (3d Cir.1985)).
As the parties observe, we are not the first court asked to resolve this question in the context of nearly identical facts and claims. To support their argument, Plaintiff relies primarily on Cohen v. Chicago Title Insurance Co., No. 06-873, 2006 WL 1582320 (E.D.Pa. June 5, 2006), and Markocki v. Old Republic National Title Insurance Co., 527 F.Supp.2d 413 (E.D.Pa. 2007). In both Markocki and Cohen, district courts in the Eastern District of Pennsylvania held that Section 910-44(b) of TICA does not require the exhaustion of administrative remedies before seeking a private right of action. Markocki, 527 F.Supp.2d at 418; Cohen, 2006 WL 1582320 at *2. Defendant, on the other hand, relies on White v. Conestoga Title Insurance Co., Nos. 03898, 010082, 2008 WL 2227297 (Pa.Ct.Com.Pl. Apr. 24, 2008), and Uyehara v. Guarantee Title and Trust Co., Nos. 1679, 06-081086, 2008 WL 2227295 (Pa.Ct.Com.Pl. Apr. 24, 2008). White and Uyehara are decisions issued by the Pennsylvania Court of Common Pleas both holding that Section 910-44(b) of TICA provides an exclusive remedy that plaintiffs must exhaust prior to pursuing a lawsuit. White, 2008 WL 2227297 at *7-8; Uyehara, 2008 WL 2227295 at *7-8. We must add to the landscape described by the parties. Very recently, in Amato v.
We begin our analysis with the language of the regulation. Section 910-44(b) of TICA provides:
40 Pa. Stat. Ann. § 910-44(b).
77 Pa. Stat. Ann. § 1035.17(a) to (c). It is obvious that the remedy established by section 910-44(b) is indistinguishable from the remedy provided by section 1035.17 found to be exclusive in Maryland Casualty.
Following the lead of the Maryland Casualty decision, the Uyehara and White decisions find further support for section 910-44(b)'s mandatory and exclusive nature in section 1504 of the Statutory Construction Act, 1 Pa. Cons.Stat. Ann. § 1504. Section 1504 provides:
1 Pa. Cons.Stat. Ann. § 1504. Section 1504 requires that "when a remedy is provided by an act of assembly, the directions of the legislation must be strictly pursued and such remedy is exclusive." Maryland Casualty, 894 A.2d at 754 (citation omitted). Thus, under section 1504, a court is without power to act until statutory remedies have been exhausted. Id. (citation omitted).
It is beyond dispute that section 910-44(b) provides a remedy, and Plaintiff therefore cannot pursue this action without exhausting that remedy. Because Plaintiff admits that he has not pursued the remedy provided by section 910-44(b), he has failed to state a claim.
For the reasons set forth above, we conclude that section 91-44(b) of TICA provides a mandatory statutory remedy that Plaintiff was required to exhaust prior to seeking relief from this Court.
The Clerk of Court is directed to close this matter for statistical purposes.