PARSONS v. THE PHILADELPHIA PARKING AUTHORITY

Filing 34

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE THOMAS N. ONEILL, JR ON 12/9/14. 12/10/14 ENTERED AND COPIES E-MAILED.(kw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ANGELA PARSONS, et al.
v.
THE CITY OF PHILADELPHIA

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O’NEILL, J.

CIVIL ACTION
No. 13-0955

December 9, 2014
MEMORANDUM

Now before me is defendant the City of Philadelphia’s memorandum of law in support of
its first affirmative defense – that plaintiff has failed to state a claim upon which relief may be
granted, Dkt. No. 31, plaintiff Angela Parsons’ response, Dkt. No. 32, and defendant’s reply
thereto. For the reasons that follow, I decline to find that plaintiff’s amended class action
complaint fails to state a claim.
Plaintiff’s remaining claim in this action is for unjust enrichment against the City on
behalf of herself and a proposed class of plaintiffs. She contends that she and others paid for
“metered parking in the City when and where such parking was free of charge” and paid “for
metered parking beyond the time required by the applicable parking regulation signs.” Dkt. No.
3 at ¶ 40. Specifically, plaintiff’s claims relate to: (1) defendant’s alleged failure “to prevent
parkers from paying for parking during times in which the City’s established parking regulations
did not require[ ] payment,” Dkt. No. 31 at ECF p. 4, the After Hours claim; and (2) defendant’s
alleged unjust enrichment from the collection of parking payments during certain times when
“the City or the [Philadelphia Parking Authority] ‘determined’ that parking was to be ‘free of
charge’ at certain times when the Class would otherwise have been obligated to pay for parking,”
id. at ECF p. 4, the Holiday Program claim. Therefore plaintiff seeks to recover money allegedly
paid to the City when no payment was due because defendant’s “acceptance and retention of [the

payments] are such that it is inequitable for the defendant[ ] to retain the benefits without
payment of value to the Named Plaintiff and other Class Members.” Dkt. No. 3 at ¶ 44.
Although defendant seeks dismissal of plaintiff’s complaint for failure to state a claim
pursuant to Rule 12(b)(6), I will consider defendant’s assertion of its first affirmative defense
pursuant to the standard for a motion for judgment on the pleadings. Defendant answered
plaintiff’s complaint on April 29, 2013. Dkt. No. 8. On June 26, 2014, I ordered defendant to
“file a memorandum of law detailing the first affirmative defense, failure to state a claim upon
which relief may be granted, asserted in its answer to plaintiff Angela Parsons’ complaint.” 1
Dkt. No. 30. A defense of failure to state a claim upon which relief can be granted may be made
after the answer is filed by motion for judgment on the pleadings or at the trial on the merits.
See Fed. R. Civ. P. 12(h)(2). A party may move for judgment on the pleadings “[a]fter the
pleadings are closed—but early enough not to delay trial.” Fed. R. Civ. P. 12(c).
“A motion for judgment on the pleadings based on the defense that the plaintiff has failed
to state a claim is analyzed under the same standards that apply to a Rule 12(b)(6) motion.”
Revell v. Port Auth. of N.Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010). Accordingly, I “must
view the facts presented in the pleadings and the inferences to be drawn therefrom in the light
most favorable to” plaintiff . Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 220 (3d Cir. 2005).
If plaintiff has not articulated enough facts “to raise a right to relief above the speculative level,”
I will dismiss her claim. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Plaintiff must

1

In her response, plaintiff submits “that the Court should not have directed the City
to address the Voluntary Payment affirmative defense sua sponte.” Dkt. No. 32 at ECF p. 4.
However, the Court of Appeals has held that “a district court may sua sponte raise the issue of
the deficiency of a complaint . . . so long as the plaintiff is accorded an opportunity to respond.”
Travelers Indem. Co. v. Dammann & Co., Inc., 594 F.3d 238, 256 n. 14 (3d Cir. 2010) (internal
citations and quotation marks omitted). Plaintiff has been afforded the requisite opportunity to
respond to defendant’s contention that her complaint fails to state a claim.
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plead “factual content that allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). I “may disregard
any legal conclusions.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009); see
also Iqbal, 556 U.S. 662 (“Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”).
I turn first to the question of whether, in this case, the voluntary payment doctrine is a
waivable affirmative defense that defendant was required to affirmatively state in its answer to
plaintiff’s complaint. See Fed. R. Civ. P. 8(c) (“In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense. . . .”). I find that it is. 2
“Under the voluntary payment defense, ‘one who has voluntarily paid money with full
knowledge, or means of knowledge of all the facts, without any fraud having been practiced
upon him . . . cannot recover it back by reason of the payment having been made under a mistake
or error as to the applicable rules of law.’” Liss & Marion, P.C. v. Recordex Acquisition Corp.,
983 A.2d 652, 661 (2009) (citation omitted); see also Essex Ins. Co. v. RMJC, Inc., 306 F. App’x
749, 754 (3d Cir. 2009) (finding that, in Pennsylvania, the voluntary payment doctrine prohibits
“recovery for voluntary payments made due to a mistake of law”) (citation omitted). The
voluntary payment doctrine thus presents a question that might provide a defense to plaintiff’s
claim even when all of the allegations in her complaint are taken as true. See 5 Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 1270 (3d ed.) (“An affirmative
defense will defeat the plaintiff’s claim if it is accepted by the district court or the jury.”). “Any

2

I note, however, that the voluntary payment doctrine is separate from the
affirmative defense of “payment” which is specifically listed in rule 8(c). As defendant
contends, a “’payment’ affirmative defense is an assertion that the defendant has already paid the
amount that the plaintiff claims that the defendant owes.” Dkt. No. 33 at ECF p. 5 (emphasis
added). That is not the circumstance at issue here.
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defenses that admit the allegations of the complaint but suggest some other reason why there is
no right to recovery or concern allegations outside of the plaintiff’s prima facie case that the
defendant therefore cannot raise by simple denial in the answer are generally considered
affirmative defenses.” Silver Buckle Mines, Inc. v. United States, 117 Fed. Cl. 786, 797 (Fed.
Cl. 2014) (internal quotation, alteration and citation omitted); see also 5 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1271 (3d ed.) (“it is advisable for the defendant
to allege affirmatively any new matter he or she believes may not be embraced by the
pleadings”). “The reason why the voluntary payment doctrine is an affirmative defense is that
the voluntary payment doctrine applies . . . in situations where the payment was made with full
knowledge of all of the facts and without any suggestion that the payor was defrauded in making
the payment.” Taylor, Bean & Whitaker Mortgage Corp. v. GMAC Mortgage Corp., No.
5:05CV260, 2007 WL 1114045, at *6 (M.D. Fla. Apr. 12, 2007) (applying Pennsylvania law).
Cf. Wurtz v. Rawlings Co., LLC, No. 12-1182, 2014 WL 4961422, at *6 (E.D.N.Y. Oct. 3,
2014) (“The voluntary payment doctrine is an affirmative defense, and therefore its applicability
must be apparent on the face of the complaint to warrant dismissal under Rule 12(b)(6).”);
Young v. Citimortgage, Inc., No. 11-01363, 2012 WL 4371532, at *2 (D. Conn. Sept. 24, 2012)
(“Plaintiffs are not required to plead facts in the complaint in anticipation of affirmative defenses
such as the voluntary payment doctrine.”)
Even though I find that the voluntary payment rule is a waivable affirmative defense to
plaintiff’s unjust enrichment claim, I find that defendant’s failure to plead the defense in its
answer is not fatal to its ability to assert the defense. Although failure to raise an affirmative
defense by a responsive pleading or by appropriate motion generally results in the waiver of that
defense, the Federal Rules of Civil Procedure grant the Court the authority to permit amendment

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to a responsive pleading to include an affirmative defense “when justice so requires.” Fed. R.
Civ. P. 15(a)(2). The Court of Appeals has taken a liberal approach in favor of allowing
amendment of the pleadings to ensure that “a particular claim will be decided on the merits
rather than on technicalities.” Dole v. Arco Chemical Co., 921 F.2d 484, 486–87 (3d Cir. 1990).
Unless the opposing party will be prejudiced, leave to amend should generally be allowed. See
Howze v. Jones & Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984). With regards to
prejudice, the focus is on the hardship to the non-moving party in the form of “additional
discovery, costs, and preparation to defend against new facts or new theories.” Cureton v. Nat’l
Collegiate Athletic Ass’n, 151 F.3d 267, 273 (3d Cir. 2001). The Court of Appeals has
recognized that a “defendant does not waive an affirmative defense if ‘[h]e raised the issue at a
pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.’”
Charpentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991) (citations omitted). I find that those
requirements are here met and thus defendant is not procedurally barred from raising the defense
of voluntary payment.
Regardless, however, of whether or not voluntary payment is an affirmative defense, I
find that it is not appropriate to enter judgment in defendant’s favor on the basis of the defense at
this stage of the proceedings because I cannot evaluate the merits of the City’s voluntary
payment defense without reference to “matters outside the pleadings.” Fed. R. Civ. P. 12(c). “In
order to implicate the Voluntary Payment Rule [ ] the payment must truly have been voluntary
and made with an unadulterated understanding of all of the elements of the payment.” Lawn v.
Enhanced Serv. Billing, Inc., No. 10-CV-1196, 2010 WL 2773377, at *2 (E.D. Pa. July 13,
2010) (citation omitted). “Exceptions to the voluntary payment doctrine . . . arise only when the
claimant alleges a mistake of fact or duress.” Coregis Ins. Co. v. Law Offices of Carole F.

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Karfrissen, P.C., 140 F. Supp. 2d 461, 463-64 (E.D. Pa. 2001); see also Liss, 937 A.2d at 514
(“The voluntary payment defense . . . is inapplicable when money is paid by a person without
full knowledge of the facts.”) (internal quotation and citation omitted); Ochiuto v. Prudential Ins.
Co., 52 A.2d 228, 230 (Pa. 1947) (“[I]t is elementary that one who voluntarily pays money with
full knowledge of the facts, without any fraud having been practiced upon him, cannot recover it
back.”). “Under Pennsylvania law, a mistake of fact means any mistake other than a mistake of
law.” Nationwide Mut. Ins. Co. v. Glickman, No. 95-5237, 1996 WL 605129, at *4 (E.D. Pa.
Oct. 22, 1996) (citation and internal quotation omitted). “What constitutes a mistake of fact
under the rule allowing the recovery of payments is not always easy to determine. No hard and
fast test can be applied; each case depends largely upon the particular factual situation involved.”
66 Am. Jur. 2d Restitution and Implied Contracts § 120.
A mistake of law is a mistake as to the legal consequences of an
assumed state of facts. . . . A mistake of law occurs where a person
is truly acquainted with the existence or nonexistence of facts, but
is ignorant of, or comes to an erroneous conclusion as to, their
legal effect.
Acme Markets, Inc. v. Valley View Shopping Ctr., Inc., 493 A.2d 736, 737 (Pa. Super. Ct. 1985)
(citations and internal quotations omitted). “[T]o allow mistake or ignorance of the law to void
actions taken by parties would subvert the effective administration of the law.” Acme Mkts.,
Inc. v. Valley View Shopping Ctr., Inc., 493 A.2d 736, 737 (Pa. Super. Ct. 1985), citing 70
C.J.S. Payment § 156(a) (1951).
It has been held that “the issue of voluntary payment often entails a fact-based inquiry
and is not suited for resolution at the dismissal stage.” United States v. Cayman Village Condo
Ass’n Inc., No. 12-61797, 2013 WL 1665846, at *1 (S.D. Fla. Apr. 17, 2013); see also Silver
Buckle Mines, 117 Fed. Cl. at 798 (“Because the pleadings are to be liberally construed in favor

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of the non-movant in a motion to dismiss, when an affirmative defense that be negated is raised
in such a motion, the best course of action is to allow the action to continue – particularly when
the complaint cannot be read as an affirmative admission of voluntary payment.”). Accordingly,
in Simonson v. Hertz Corp., No. 10-1585, 2011 WL 1205584, at *3 (D.N.J. March 28, 2011), the
Court declined to grant the defendants’ motion to dismiss on the basis of the voluntary payment
rule finding that it could not ascertain from the plaintiff’s allegations whether he “made the
payments without a mistake of fact.” The plaintiff had paid a charge imposed by a defendant for
his utilization of an electronic toll collection service and subsequently filed a claim for breach of
contract, consumer fraud and unjust enrichment. Id. The defendants claimed that the voluntary
payment doctrine applied to bar plaintiff’s breach of contact claim “because Plaintiff paid the
contested charges.” Id. The plaintiff, however, alleged that “he was unaware of the facts and
circumstances surrounding the imposition of the PlatePass fee.” Id.
The Court explained,
Although Plaintiff acknowledges he was unaware that Defendants
had no legal right to collect any administrat[ive] fees, the Court
cannot ascertain whether Plaintiff made the payments without a
mistake of fact. For example, the facts as pled do not indicate
whether Plaintiff, at the time he paid [the defendant], was aware
that the $10.00 administrative service fee included charges for days
he did not utilize PlatePass. Based upon a reading of the
Complaint, it is entirely possible for the Court to determine that
Plaintiff paid the $10.00 fee because he thought it incurred from
his single use of PlatePass and was not the sum total of a per diem
fee. If Plaintiff was aware the $10.00 fee included charges for
days he did not utilize PlatePass, he may never have paid the fee.
This mistake of fact, if true, would preclude the voluntary payment
doctrine.
Id.
Here, as in Simonson, I find that the pleadings are not sufficient to permit me to conclude
whether plaintiff’s unjust enrichment claim stems from overpayments for parking resulting from
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mistakes of fact or mistakes of law. In her amended class action complaint, plaintiff alleges that
“[t]he Defendants have installed parking regulation signs throughout the City. The parking
regulation signs governing metered parking spaces indicate the time limit and the hours during
which the meter must be paid.” Dkt. No. 3 at ¶ 19. She elaborates, “[t]hus, for example, some
parking regulation signs in the City indicate that there is a three-hour time limit on parking
between the hours of 4:00 p.m. and 10:00 p.m. . . . .” Id. at ¶ 20. If plaintiff’s unjust enrichment
claim rested only on an allegation that, with an understanding of the relevant parking regulation
sign, she had paid for parking after 10:00 her claims would, indeed be barred by the voluntary
payment doctrine and I could make that determination based upon the pleadings. Such an
allegation would not evidence a mistake of fact, but rather, would merely support a finding that
plaintiff made the payment despite her ignorance of the law. But plaintiff here alleges that “if an
individual arrives at 9:45 p.m., inserts her credit card into a parking meter kiosk, and presses the
button for ‘MAX TIME,’ she is charged for three hours of parking even though she only needs to
pay for a maximum of a quarter of an hour.” Id. Plaintiff further alleges that “[o]n multiple
occasions, [she] paid for metered parking in the city beyond the time required by the applicable
parking regulation signs.” Id. at ¶ 25. In her reply, plaintiff argues that “by pressing the ‘MAX
TIME’ [button] at 9:45 p.m. where the applicable signage states 3 hour parking between 4:00
p.m. and 10:00 p.m., individuals would mistakenly believe that they were purchasing 15 minutes
of parking, the maximum amount of time they needed under the signage, rather than the 3 hours
of parking for which they were ultimately charged.” Dkt. No. 32 at ECF p. 9.
Plaintiff also alleges that:
[o]n multiple occasions, [she] paid for metered parking at kiosks in
non-rush hour zones in Center City after 5:00 p.m. on Wednesdays
when parking was free of charge in Center City on Wednesdays
after 5:00 p.m. because she did not know that parking was free of
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charge, there were no signs indicating that parking was free of
charge, and the meter kiosks accepted payment for parking when
no payment was required.
Dkt. No. 3 at ¶ 23.
She claims that
[o]n multiple occasions, [she] paid for metered parking in the city
on Saturdays between November 24 and December 29, 2012 after
11:00 a.m. when parking was free of charge because she did not
know that parking was free of charge, there were no signs
indicating that parking was free of charge, and the meters and
meter kiosks accepted payment for parking when no payment was
required.
Id. at ¶ 24. As plaintiff argues, “it is at least inferable from the Amended complaint that
payments for parking when no payments were due were made based on a mistake [of] fact.”
Dkt. No. 32 at ECF p. 8. Defendant responds that “[i]f the City did not prevent parkers’ from
being able to know the facts relevant to their duty to pay, then the [voluntary payment r]ule
applies” to bar plaintiff’s claims. Dkt. No. 33, at ECF p. 8 (emphasis added). But it is the “if”
which is fatal to defendants’ assertion of the voluntary payment defense at this stage of the
proceedings. Cf. Wurtz, 2014 WL 4961422, at *7 (holding that “the voluntary payment doctrine
cannot apply at this juncture as a bar to [the plaintiff’s] claims” where “nothing on the face of the
complaint suggests that [the plaintiff] paid [the defendant] with full knowledge of the facts and a
lack of diligence in determining her contractual obligations”).
Viewing the allegations in plaintiff’s complaint in the light most favorable to her, she has
alleged a plausible claim not barred by the voluntary payment doctrine as I cannot find that the
alleged overpayments for parking were “truly . . . voluntary and made with an unadulterated
understanding of all of the elements of the payment.” Lawn v. Enhanced Serv. Billing, Inc., No.
10-CV-1196, 2010 WL 2773377, at *2 (E.D. Pa. July 13, 2010) (citation omitted). Cf. Robbins

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v. Scana Energy Mktg., Inc., No. 08-640, 2008 WL 7724171, at *5-6 (N.D. Ga. June 13, 2008)
(finding the plaintiffs’ complaint did not state “a plausible claim not barred by the voluntary
payment doctrine” where they made no allegations that they lacked knowledge of material facts
and their complaint supported a finding that they “made the payments through an unexcused
ignorance of the law”). 3 Accordingly, I will permit her unjust enrichment claim to go forward
and will not at this point resolve the question of whether plaintiff is barred from pursuing her
claim under the voluntary payment doctrine – even if the voluntary payment doctrine may
ultimately bar some or all of her claim. 4
An appropriate Order follows.

3

Moving forward, defendant’s assertion of the voluntary payment doctrine as a
defense may thus require an inquiry into whether members of the putative class made their
payments without a mistake of fact. See Liss, 937 A.2d at 514 (“The voluntary payment defense
. . . is inapplicable when money is paid by a person without full knowledge of the facts.”)
(internal quotation and citation omitted). This issue should be addressed in the forthcoming
briefs on plaintiff’s motion for class certification.
4
Although the issue may be appropriate for resolution at a later stage of the
proceedings, I decline to here determine whether the Philadelphia Parking Authority or the City
Department of Streets has the power to alter any duty to pay for parking. See, e.g., Dkt. No. 31
at ECF p. 8 (defendant’s argument that the City has not delegated its legislative authority to the
PPA and that, as a result, the PPA does not have the power to alter the duty to pay for parking);
Dkt. No. 32 at ECF p. 10-13 (plaintiff’s argument that the PPA has authority to administer
metered parking “consistent with the Mayor’s proper exercise of his authority as the Executive
who oversees the Department of streets”).
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