Riviello v. Pennsylvania State Employees Credit Union (PSECU) et al

Filing 18

MEMORANDUM AND ORDER JUDGMENT Defendants filed aMotion for Summary Judgment (Doc. 5). For the reasons set forth in the accompanying memorandum, NOW, on this 28th day of MARCH, 2012, IT IS HEREBY ORDERED THAT: 1. Defendants' Motion for Summary Judgment (Doc. 5) is GRANTED. 2. The Court enters judgment in favor of Defendants and against Plaintiff. 3. The Clerk of the Court is directed to CLOSE the case. Signed by Honorable Robert D. Mariani on 3/28/12. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GERALD RIVIELLO, JR.

Plaintiff

1:11-cY-1533

Y.

(JUDGE MARIANI)
PENNSYLVANIA STATE EMPLOYEES
CREDIT UNION (PSECU), JOHN DOES
1-10, and X, Y, Z CORPORATIONS
Defendants
MEMORANDUM AND ORDER
Plaintiff Gerald Riviello, Jr. ("Plaintiff') filed the present action against
Defendants Pennsylvania State Employees Credit Union ("PSECU"), John
Does 1-10, and X, Y, Z Corporations (collectively "Defendants,,)1 for alleged
violations of the Electronic Funds Transfer Act, 15 U.S.C. §§ 1693 et seq.
("EFTA") and its implementing regulations at 12 C.F.R. §§ 205 et seq.
("Regulations").
BACKGROUND
This case has its origins in the Court of Common Pleas of Dauphin
County, Pennsylvania, where it was filed on May 24, 2011. It was
subsequently removed to this Court by Defendants on August 18, 2011
pursuant to 28 U.S.C. §§ 1441 and 1446. Plaintiff frames this suit as a
I Plaintiff has not identified any persons or institutions referenced in his Complaint who constitute John
Does I-to or X, Y, Z Corporations.

class action, but the record does not reveal that Plaintiff has made any
attempt to certify a class.
Plaintiff alleges that on April 30, 2011, he used an automated teller
machine (UATM") owned by Defendants to withdraw funds. 2 Plaintiff was
not a regular customer of Defendants' (see Pl.'s Compl. at 1118), and was
thus charged a fee for his transaction (see Pl.'s Compl. at 1120). Plaintiff
further alleges that at the time of the transaction, U[t]here was no clear and
conspicuous external notice at or near the ATM that a fee would or may be
charged." (See PI.'s Compl. at 1119.) Plaintiff contends that the absence of
a Fee Notice ("Fee Notice") constitutes a violation of the EFTA by
Defendants, and that Defendants are liable for statutory damages.
STANDARD

Federal Rule of Civil Procedure 56( c) provides that summary
judgment shall be granted if the "pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." A district court
may grant a defendant's motion for summary judgment when the plaintiff
fails to provide any genuine issue of material fact. See Rule 56( c); see also
2 The Court notes that Plaintiff provided the April 30, 2011 date in his Brief in Opposition to Defendants'
Motion for Summary Judgment, and that his Complaint fails to articulate the date of his injury. Although his
Complaint is materially deficient, the Court will accept the date provided in his brief.

2

Krouse v. Amer. Sterilizer Co., 126 F.3d 494,500 n.2 (3d Cir. 1997). The
moving party has the burden to establish before the district court that the
non-moving party has failed to substantiate its claims with evidence. See

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 LEd.2d 265
(1986); see also Country Floors, Inc.

V.

Partnership Composed of Gepner

and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). "The burden then shifts to
the non-movant to come forward with specific facts showing a genuine
issue for triaL" See Book V. Merski, 2009 WL 890469, at *4 (W.O. Pa. Mar.
31, 2009){citing Matsushita Elec. Indus. Company v. Zenith Radio Corp.,
475 U.S. 574, 106 S.Ct. 1348,89 LEd.2d 538 (1986); Williams

V.

Borough

of West Chester, Pa., 891 F.2d 458, 460-61 (3d Cir. 1989){"the non-movant
must present affirmative evidence-more than a scintilla but less than a
preponderance-which supports each element of his claim to defeat a
properly presented motion for summary judgment."». The non-moving
party is then charged with providing evidence beyond the pleadings to
show specific facts by affidavit or by information contained "in the filed
documents (Le., depositions, answers to interrogatories and admissions) to
meet his burden of proving elements essential to his claim." Book, 2009
WL 890469, at *4 (citing Celotex, 477 U.S. at 322; Country Floors, 930
F.2d at 1061).

3

Material facts are those whose resolution will affect the outcome of
the case under applicable law. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Although the Court
is required to resolve any doubts as to the existence of material facts in
favor of the non-moving party for summary judgment, Rule 56 "does not
allow a party resisting the motion to rely merely upon bare assertions,
conclusory allegations or suspicions." Firemen's Ins. Company of Newark,
N.J. v. Du Fresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment,
therefore, is only precluded if a dispute about a material fact is "genuine",

viz., if the evidence would permit a reasonable jury to return a verdict in
favor of the non-moving party. See Anderson, 477 U.S. at 247-249.
DISCUSSION
The EFTA and its implementing regulations require ATM operators
who charge fees to inform users that (1) a fee will be charged for use of the
ATM, and (2) the amount of the fee. See 15 U.S.C. § 1693b(d)(3)(A); 12
C.F.R.205.16(b). To facilitate this policy, the ATM must provide notice on
the machine "in a prominent and conspicuous location" as well as either on
the screen of the ATM or on a paper printout before the user is committed
to paying a fee. See 15 U.S.C. § 1693b(d)(3); 12 C.F.R. § 205.15(c).

4

Providing only one form of notice is insufficient to satisfy the statutory
requirements.
While Plaintiff argues that Defendants are liable to him for failing to
properly affix a Fee Notice, Defendants argue that they are afforded
protection against Plaintiffs immediate claim because they provided
substantive evidence detailing the applicability of a complete defense to
which they are entitled under the EFTA. Furthermore, the Court notes that
Plaintiff failed to provide evidentiary support in furtherance of his
allegations.
I.

Plaintiff Fails to Provide Evidence Rebutting Defendants' Complete
Defense as Provided by Section 1693{h)
Plaintiffs Complaint and Opposition Brief suggest that PSECU did not

post a Fee Notice, and when Plaintiff used the ATM and incurred a fee, that
he met the necessary elements required to establish a prima facie violation
of §§ 1693b and 20S.16(c) by Defendants. In response, Defendants argue
that § 1693h(d) provides a complete defense to liability. Section 1693(h)
provides, in pertinent part:
If the notice required to be posted pursuant to section
1693b(d)(3)(B)(i) [notice on the ATM itself] by an automated
teller machine operator has been posted by such operator in
compliance with such section and the notice is subsequently
removed, damaged, or altered by any person other than the
operator of the automated teller machine, the operator shall

5

have no liability under this section for failure to comply with
section 1693b(d)(3)(8)(i) of this title.
15 U.S.C. § 1693h(d).
In support of their § 1693h defense, Defendants have submitted
various affidavits and photographs indicating that: (1) they complied with
the EFTA insofar as they affixed a compliant Fee Notice to the ATM in
2006, (2) none of Defendants' employees removed the Fee Notice, and (3)
when Defendants' employees noticed the sticker was missing during a
routine examination of the ATM, a new Fee Notice was promptly affixed.
In the affidavit of Paula Walter ("Walter"), ATM Director of the Card
Service Department of PSECU, Walter attested that she was responsible
for overseeing the installation, maintenance, and servicing of PSECU's
ATMs in Pennsylvania. (See Walter Aff. at 1r 3, ECF Dkt. 5-4.) Walter
further acknowledged that for purposes of PSECU record-keeping, the
ATM at issue has been designated as bearing the serial number "DU1044."
(See id. at 1r 5.) As a matter of practice, PSECU adheres a standard form
Fee Notice to the outside of a" of PSECU's ATMs. (See id. at 1r 8.) Walter
attached a color photograph of a true and correct copy of the Fee Notice to
her affidavit as Exhibit 1. Furthermore, Walter declared that PSECU
photographs "most, if not a"," of its ATMs. (See id. at 1r 9.) Walter's
affidavit further indicates that after PSECU was served with the Complaint
6

in the present matter on July 28, 2011, she located the photograph taken of
the ATM in question when its signage was updated on August 16, 2006.

(See id. at ~ 10.) Walter attached a color photograph of the ATM taken on
August 16, 2006 to her affidavit as Exhibit 2. The photograph in Exhibit 2
purports to show the ATM Fee Notice appended to the upper right corner of
the ATM. (See id. at ~ 11.)
According to Walter, in February 2011, PSECU "initiated procedures
to provide for routine inspections of its ATMs to ensure the PSECU ATMs
have the Fee Notice posted, have appropriate PSECU signage in place,
and have a clean appearance." (See id. at ~ 12.) On May 12, 2011,
Michael Murphy ("Murphy"), a PSECU employee inspected the ATM and
found that it did not have a properly affixed Fee Notice. (See id. at 14;
Michael Murphy Aff. at ~ 4, ECF Dkt. 5-5.) Murphy replaced the fee notice
and other signage on the ATM and then photographed the machine. (See
Walter Aff. at ~ 15; Murphy Aff. at ~ 5.) After the Complaint was served on
PSECU on July 28, 2011, a PSECU employee, Marcia Dougherty
("Dougherty"), went to the ATM on August 9, 2011, and photographed it.

(See Walter Aff. at ~ 16; Dougherty Aff. at ~ 4, ECF Dkt. 5-6.) Dougherty's
"photograph shows old adhesive to the right of the existing Fee Notice
which shows where the previous Fee Notice had been affixed, prior to it

7

being removed." (See id. at 17; Dougherty Aff. at W 5-6, Exh. 2.) Based
on these photographs and PSECU's records, Walter determined that the
original Fee Notice posted on the ATM had been removed. (See Walter
Aff. at ,-r 18.) After conducting an investigation of the employees in the
ATM Services Department of PSECU and the Marketing Department of
PSECU, as well as any employees having responsibility for the operation of
the ATM at issue, Walter found that no employee of PSECU removed or
damaged any Fee Notice that had been posted. (See id. at,-r 19.)
Under the summary judgment framework articulated in Anderson,
supra, and its progeny, it is clear "that if a moving party satisfies its initial
burden of proving a prima facie case for summary judgment, the opposing
party 'must do more than simply show that there is some metaphysical
doubt as to material fact. "' Boyle v. County of Allegheny Pennsylvania, 139
F.3d 386,393 (3d Cir. 1998)(citing Matsushida Elec. Indus. Co., 475 U.S.
at 586). Rather, "[t]here must be sufficient evidence for a jury to return a
verdict in favor of the non-moving party; if the evidence is merely colorable
or not significantly probative, summary judgment should be granted." Id.
(citing Ambruster V. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994». In Roa
V.

City of Bethlehem, 782 F. Supp. 1008 (E.D. Pa. 1991), the Eastern

District of Pennsylvania held that a party resisting summary judgment must

8

specifically identify evidence in the record which supports its claim and
upon which a verdict in its favor can be appropriately based. Id. at 1014.
In the present matter, Defendants move for summary judgment based
upon a complete defense provided within § 1693h(d). In support of their
motion, Defendants provide the Court with several affidavits which include
photographic attachments. These affidavits present facts, which if un­
rebutted, require a finding that some third-party, and not the Defendants,
removed the required Fee Notice from the ATM. Plaintiff's Brief in
Opposition to Defendants' Motion merely restates the factual allegations
tendered in his Complaint and does not offer any rebuttal of Defendants'
defense under § 1693h(d). In fact, Plaintiff offers no evidence to cast doubt
upon the Defendants' proffered defense: the Piontek affidavit does not
address, nor rebut, Defendants' contention that a third-party removed the
Fee Notice. Plaintiff's Answer to Statement of Material Facts (Upi. 's
SMF")(ECF Dkt. 17) is similarly deficient in that it only responds to
Defendants' affidavits with generic, unsupported allegations, and contends
that Defendants' evidence is "based solely on affidavit." See, e.g., PI.'s
SMF 1[13. Plaintiff offers no substantive evidence in support of his
opposition to PSECU's Motion. Nor has Plaintiff sought to avoid the entry of
summary judgment against him by making the requisite showing "by

9

affidavit or declaration" under Rule 56(d) that he "cannot present facts
essential to justify [his] opposition" to the Defendants' Motion. Rule 56(d)
authorizes the Court on such a showing, by affidavit or declaration of the
non-moving party to:
(1 )

defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to take
discovery; or
(3)

issue any other appropriate order.

The Plaintiff's failure to avail himself of the opportunity under Rule
56(d) to avoid the entry of summary judgment against him by invoking its
provisions and the remedies available under that Rule requires this Court
address the Defendants' Motion For Summary Judgment on the undisputed
record evidence offered by PSECU.
Defendants' affidavits and photographs indicate that the required
external notice was posted on the ATM and that the notice was
subsequently removed by an unknown third-party. Plaintiff's Complaint and
opposing papers fail to address these affirmative defenses; accordingly,
"Defendants' argument and evidence on this point support a point of
material fact that, without more from Plaintiff, is undisputed." See Piontek
v. Penn. Sec. Bank and Trust Co., No. 10-1038,2011 WL 1002194, slip
op., *4 (M.D. Pa. Jan. 31,2011). "Following Celotex and Rule 56(e), the
10

burden shifted to Plaintiff to produce some evidence of a specific, disputed
material issue. It was thus incumbent upon Plaintiff to produce some kind
of evidence that would tend to show that external notice was never posted
on the ATM, or if it was, that it was removed by Defendants...." Id.
Plaintiff's papers and submissions to this Court fail to provide any evidence
rebutting Defendants' defense beyond the assertion that the ATM did not
contain the appropriate Fee Notice. Such submissions do not constitute
evidence of a disputed fact. Accordingly, a finding of summary judgment in
favor of Defendants is appropriate.
With the exception of a single affidavit submitted by his counsel, Vicki
Piontek ("Piontek"), in which Piontek attests that she used the same ATM
as Plaintiff six months prior to Plaintiff's alleged injury and found it
noncompliant with the EFTA, Plaintiff offers no evidence to support the
claims set-forth in his Complaint. The Piontek affidavit does not
substantiate Plaintiff's claims, and by its own language, is temporally
irrelevant because it concerns an event that occurred six months prior to
Plaintiff's alleged use of the ATM.
The Plaintiff's argument in his Brief In Opposition to the Defendants'
Motion For Summary Judgment (Doc. 15, p. 4) that "[D]efendant, however,
provides nothing to prove that the Notice was removed by someone not

11

working for the bank," misses the mark. The Defendant has come forward
with evidence in the form of affidavits from its ATM Director, Paula Walter
(Doc. 5-4), Michael Murphy, its ATM Analyst (Doc. 5-5), and its ATM
Acquirer Manager, Marcia Dougherty (Doc. 5-6), which collectively set forth
the Credit Union's defense under Section 1693(h} of the EFTA that it had
complied with the posting provisions of the Act and that the Notice required
to be posted on the ATM itself was not removed by it or any of its
employees. At that point, the Plaintiff may not rest on the allegations of his
pleadings if he wishes to avoid the entry of summary judgment against him.
IIWhen the summary judgment movant carries its initial burden, the burden
of going forward then switches to the opponent, who may not oppose
summary judgment on the mere basis of the allegations of the pleadings,
nor on conclusory statements that a fact issue exists." Moore's Federal
Rules Pamphlet § 56.4[3][b] (2011) (citing Rand v. CF Industries, 42 F.3d
1139, 1146 (7th Cir. 1994) (plaintiff cannot oppose summary judgment
motion by merely stating that defendant's affidavits are false, but must offer
specific facts that raise significant issues of credibility)).
Here, the Plaintiff has failed to come forward with evidence in any
form which would show that a material issue of fact exists with respect to
the Defendants' compliance with Section 1693(h} of the EFTA and has

12

failed likewise to come forward with adequate reasons why such evidence
is not currently available.
For these reasons, this Court believes that the entry of summary
judgment in favor of the Defendant is warranted.
CONCLUSION
For the reasons set forth in this memorandum, Defendants' Motion for
Summary Judgment will be granted. An appropriate Order will follow.

DATE: March 28,2012
obert D. Mariani
United States District Judge

13

THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
GERALD RIVIELLO, JR.

Plaintiff

1:11-cY-1533

Y.

(JUDGE MARIANI)
PENNSYLVANIA STATE EMPLOYEES
CREDIT UNION (PSECU), JOHN DOES
1-10, and X, Y, Z CORPORATIONS
Defendants
ORDER

On September 14, 2011, Defendants filed a Motion for Summary Judgment (Doc. 5).
For the reasons set forth in the accompanying memorandum, NOW, on this 28th day of
MARCH, 2012, IT IS HEREBY ORDERED THAT:
1. Defendants' Motion for Summary Judgment (Doc. 5) is GRANTED.
2. The Court enters judgment in favor of Defendants and against Plaintiff.
3. The Clerk of the Court is directed to CLOSE the case.

Robert D. Mariani
United States District Judge