# EMRIT v. PNC BANK

> District Court, W.D. Pennsylvania · February 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10417574

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** February 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10417574

## How later opinions describe it (automated extraction)

- noting that applying the doctrine generally involves a fact-intensive undertaking by a court

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD SATISH EMRIT,
Plaintiff, Civil Action No. 2:21-cv-1057
v. Hon. William S. Stickman IV
PNC BANK,
Defendant.

MEMORANDUM OPINION
WILLIAM S. STICKMAN IV, United States District Judge
Pro se Plaintiff Ronald Satish Emrit (“Emrit’’) filed this lawsuit against Defendant PNC
Bank (“PNC), claiming that his three PNC bank accounts were “closed unexpectedly” in 2020
without sufficient reason.!_ Emrit asserts that he was injured from the closure of his bank
accounts because there was a delay in receiving an economic stimulus payment from the IRS
(although, he concedes that he later recovered the payment), (ECF No. 3, {] 17-18, 20), and he
“believes” the closure negatively impacted his credit rating and ability to get a mortgage, id. □
19-20. (see also ECF No. 12, p. 1). His Complaint contains the following seven claims: Count

' Emrit filed identical lawsuits in the Eastern District of Pennsylvania (Case No. 2:21-cv-03623),
the Southern District of West Virginia (Case No. 2:21-cv-0446), the Eastern District of Virginia
(Case No. 21-cv-00512), the Western District of Virginia (Case No. 21-cv-0029), and the Middle
District of Pennsylvania (Case No. 1:21-cv-01386). The Southern District of West Virginia case
was transferred to this Court on August 10, 2021, docketed at Case No. 21-cv-01092, and closed
on August 19, 2021 by Order of Court, the Middle District of Pennsylvania case was transferred
to this Court on August 7, 2021, docketed at Case No. 21-cv-01091, and closed by August 19,
2021 Order of Court, the Eastern District of Virginia dismissed Emrit’s complaint on August 18,
2021, without prejudice, on January 13, 2022, in the Western District of Virginia case, Emrit’s
complaint was dismissed for failure to state a claim, and the Eastern District of Pennsylvania
case was transferred to this Court on February 3, 2022, docketed at Case No. 2:22-cv-00199, and
closed by February 7, 2022 Order of Court.

One — “The Material Breach of Contract”; Count Two — Negligence; Count Three — Conversion;
Count Four — Products Liability; Count Five — “Breach of Implied Warranty of Fitness for a
Particular Purpose”; Count Six — “Breach of Implied Warrant of Merchantability”; Count Seven

— “Breach of Banking and Usury Laws Affiliated With Federal Trade Commission (FTC),
Consumer Financial Protection Board (CFPB), Federal Reserve, and Dodd-Frank.” (/d., pp. 5-
8). PNC filed a Motion to Dismiss for Failure to State a Claim and supporting brief. (ECF Nos.
8 and 9). The matter is fully briefed and ripe for adjudication. The Court will grant PNC’s
motion and dismiss this lawsuit for failure to state a claim upon which relief can be granted.
I. STANDARD OF REVIEW
A motion to dismiss filed under Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests
the legal sufficiency of the complaint. Kost v. Kozakiewicz, | F.3d 176, 183 (3d Cir. 1993). A
plaintiff must allege sufficient facts that, if accepted as true, state a claim for relief plausible on
its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). A court must accept all well-pleaded factual allegations as true and
view them in the light most favorable to a plaintiff. See Fowler v. UPMC Shadyside, 578 F.3d
203, 210 (3d Cir. 2009); see also DiCarlo v. St. Mary Hosp., 530 F.3d 255, 262-63 (3d Cir.
2008). Although this Court must accept the allegations in the Complaint as true, it is “not
compelled to accept unsupported conclusions and unwarranted inferences, or a legal conclusion
couched as a factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (d Cir. 2007)
(citations omitted).
The “plausibility” standard required for a complaint to survive a motion to dismiss is not
akin to a “probability” requirement but asks for more than sheer “possibility.” Jgbal, 556 U.S. at
678 (citing Twombly, 550 U.S. at 556). In other words, the complaint’s factual allegations must

be enough to raise a right to relief above the speculative level, on the assumption that all the
allegations are true even if doubtful in fact. Twombly, 550 U.S. at 555. Facial plausibility is
present when a plaintiff pleads factual content that allows the court to draw the reasonable
inference that a defendant is liable for the misconduct alleged. Jgbal, 556 U.S. at 678. Even if
the complaint’s well-pleaded facts lead to a plausible inference, that inference alone will not
entitle a plaintiff to relief. Jd at 682. The complaint must support the inference with facts to
plausibly justify that inferential leap. Jd.
Complaints brought pro se are afforded more leeway than those drafted by attorneys. In
determining whether to dismiss a complaint brought by a pro se litigant, a federal district court is
“required to interpret the pro se complaint liberally.” Sause v. Bauer, 138 8S. Ct. 2561, 2563
(2018). “[A] pro se complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94
(2007). Nevertheless, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (d Cir. 2013).
Therefore, in keeping with its duty to “construe pro se complaints liberally ... [the Court] will
consider” additional facts included in Emrit’s filings that came after the Complaint to the extent
they are consistent with the allegations in the Complaint. Bush v. City of Philadelphia, 367 F.
Supp. 2d 722, 725 (E.D. Pa. 2005).

II. ANALYSIS
Emrit has filed no fewer than 200 civil actions in federal district courts since 2013. The
Middle District of Florida issued a “Vexatious Litigant Order” in a case Emrit filed there, barring

him from filing any new document in that district without first obtaining written approval of its
Senior Magistrate Judge. Emrit v. Devos, Case No. 20-cv-773, Docket No. 11 (M.D. Fla. Apr.
20, 2020). Many of Emrit’s other actions have been dismissed as frivolous, malicious, or for
failure to state a claim. See e.g., Emrit v. Cheap-O-Air, Case No. 13-cv-803 (D. Md. April 1,
2013); Emrit v. Viacom/MTYV, Case No. 13-cv-4909 (S.D.N.Y. July 25, 2013); Emrit v. Office
Depot, Case No. 13-cv-80750 (S.D. Fla. Aug. 7, 2013); Emrit v. Nat'l Academy of Recording
Arts & Sciences, Case No. 13-cv-5050 (S.D.N.Y. Aug. 19, 2013); Emrit v. Washington State Bar
Ass’n, Case No. 13-cv-1389 (W.D. Wash. Sept. 10, 2013); Emrit v. Nat'l Academy of Recording
Arts & Sciences, Case No. 13-cv-4742 (S.D.N.Y. Sept. 30, 3013); Emrit v. Viacom/MTV, Case
No. 13-cv-4741 (S.D.N.Y. Oct. 15, 2013); Emrit v. Nat’l Academy of Recording Arts & Sciences,
Case No. 13-cv-4736 (S.D.N.Y. Jan. 28, 2014); Emrit v. AOL Time Warner, Inc., Case No. 14-
cv-314 (S.D.N.Y. Feb. 14, 2014); Emrit v. Archdiocese of Miami, Case No. 14-cv-20910 (S.D.
Fla. March 11, 2014); Emrit v. Miami-Dade Cnty. Pub. Hous. and Cmty. Dev., Case No. 14-cv-
20890 (S.D. Fla. March 12, 2014); Emrit v. Sarasota Housing Auth., Case No. 14-cv-565 (M.D.
Fla. April 22, 2014). Although not subject to immediate dismissal as frivolous, Emrit’s
Complaint will be dismissed because, even construing his claims liberally, he has failed state any
claim upon which relief can be granted.
A. Count One will be dismissed.
Emrit alleges in Count One of his Complaint that PNC committed a material breach of
contract when it closed his bank accounts without providing a sufficient reason and then rejected
an incoming IRS direct deposit stimulus payment.” (ECF 3, ff 16, 21-25; ECF No. 22, 7 1). To

? Although not specifically explored by the parties, the first issue that the Court must determine
in adjudicating PNC’s motion is the applicable law for Emrit’s state law claims. “The Third
Circuit has instructed that before a district court applies the applicable choice-of-law analysis it

state a breach of contract claim, Pennsylvania law requires that a plaintiff allege a valid contract,
its breach and ensuing damages. See lronshore Specialty Ins. v. Conemaugh Health Sys., Inc.,
423 F. Supp. 3d 139, 150 (W.D. Pa. 2019); see also McShea v. City of Philadelphia, 995 A.2d
334 (Pa. 2010) (a breach of contract claim requires: 1) the existence of a contract and its terms;
2) a breach of the duty imposed by the contract; and 3) damages that resulted). Pennsylvania
contract law recognizes the “firmly settled” point that “the intent of the parties to a written
contract is contained in the writing itself.” Bohler-Uddeholm Am., Inc. v. Ellwood Grp., Inc.,
247 F.3d 79, 92-93 (3d Cir. 2001) (quoting Krizovensky v. Krizovensky, 624 A.2d 638, 642 (Pa.
Super. 1993)).
PNC attached to its Memorandum of Law a copy of the Account Agreement For Personal
Checking, Savings and Money Market Accounts (“Agreement”) that governed Emrit’s three
bank accounts. (ECF No. 9-1). It argues that Emrit’s breach of contract claim fails as a matter

must first determine whether a conflict of law actually exists pursuant to a three-step inquiry.”
Riffin v. Conrail Corp., 363 F. Supp. 3d 569, 575 n. 4 (E.D. Pa.), aff'd, 783 F. App’x 246 (3d
Cir. 2019) (citing Hammersmith v. TIG Ins. Co., 480 F.3d 220, 230 (3d Cir. 2007)). “This
inquiry includes, first, a determination whether an actual or real conflict exists between the laws
of the jurisdiction at issue.” Jd. Only if there is an actual conflict must the court proceed to the
second and third inquiries. Id.
Emrit failed to plead where and when he was “informed that his bank accounts with PNC
Bank would be closed unexpectedly [. . .].”. (ECF No. 3, § 16). And, he only states that, “a
direct deposit from the IRS as a stimulus check in the approximate amount of $600.00 was
rejected by PNC bank where the IRS tried to place that revenue in one of plaintiff's checking
accounts with PNC Bank.” (Jd. § 17). PNC, which is headquartered in Pennsylvania, proceeds
from the position that Pennsylvania law applies. Emrit, who resides in Florida and opened his
bank accounts in Maryland, does not dispute PNC’s position. Since Emrit has not identified any
state law that might arguably apply to his claims and that presents an “actual or real conflict”
with Pennsylvania law, the Court will apply Pennsylvania law.
3 Generally, “a district court ruling on a motion to dismiss [under Rule 12(b)(6)] may not
consider matters extraneous to the pleadings.” Jn re Burlington Coat Factory Sec. Litig., 114
F.3d 1410, 1426 (3d Cir. 1997) (Alito, J.). However, there are a few exceptions to that general
rule. A district court may consider the following: (1) exhibits attached to the complaint, see
Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993);

of law because his claim is contradicted by the Agreement, which specifically states, “You or the
bank can close your Account at any time by providing written notice.” (ECF 9-1, pp. 13, 45).
Emrit does not dispute that he received notice. His issue is with the sufficiency of the
explanation provided by PNC as to why it was closing his accounts. Emrit has failed to identify
a specific contractual term of the Agreement that PNC has breached, and it cannot be said that
PNC breached any duty as the Agreement clearly and specifically states that PNC could close his
bank accounts at any time. Emrit has failed to plead a plausible claim for breach of contract as a
matter of law. Count One will be dismissed with prejudice.
B. The tort claims (Counts Two, Three, and Four) will be dismissed.
PNC argues that Emrit’s tort claims-i.e., negligence (Count Two); conversion (Count
Three); and products liability (Count Four)-are barred by the “gist of the action” doctrine. (ECF
No. 9, pp. 9-11). The Court agrees, and these counts will be dismissed.
The gist of the action doctrine precludes a plaintiff from pursuing a tort claim that arises
out of the contractual obligations of the parties. The Pennsylvania Supreme Court provided a
magisterial examination of the doctrine in Bruno v. Erie Insurance Co., 106 A.3d 48 (Pa. 2014).
In Bruno, the Pennsylvania Supreme Court explained that the historic origin of the doctrine
stems from the common-law distinction between actions proceeding on a writ of assumpsit and
those on a writ of trespass. The Pennsylvania Supreme Court explained that even after the
distinction between the writ-based forms of action was alleviated, Pennsylvania courts generally

(2) documents that are “integral to or explicitly relied upon in the complaint,” Burlington, 114
F.3d at 1426 (citation omitted), including, for example, “an undisputedly authentic document that
a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the
document,” Pension Benefit, 998 F.2d at 1196; and (3) matters of public record, Pension Benefit,
998 F.2d at 1196. The Court concurs with PNC that “the Agreement is integral to the Complaint
as it forms the basis for and provides the essential terms for Plaintiffs Breach of Contract
claim.” (ECF No. 9, p. 2. n.1).

maintained a sharp distinction between claims that arise out of the obligations in parties’
contracts and those imposed as a matter of general social duty. Parties are not permitted to recast
in tort what is actually a claim under their contract. Thus, if the “gist” of an action sounds in
contract, a tort claim may not be asserted on the same occurrence and transaction.
The Pennsylvania Supreme Court explained that a determination of whether an action is
properly lodged as a claim in tort or contract depends on the nature of the duty breached as set
forth in the complaint:
The general governing principle which can be derived from our prior cases is that
our Court has consistently regarded the nature of the duty alleged to have been
breached as established by the underlying averments supporting the claim in a
plaintiff's complaint, to be the critical determinative factor in determining
whether the claim is truly one in tort, or for breach of contract. In this regard, the
substance of the allegations comprising a claim in a plaintiffs complaint are of
paramount importance, and, thus, the mere labeling by the plaintiff of a claim as
being in tort, e.g. for negligence, is not controlling. If the facts of a particular
claim establish that the duty breached is one created by the parties by the terms of
their contract—i.e., a specific promise to do something that a party would not
ordinarily have been obligated to do but for the existence of the contract—then
the claim is to be viewed as one for breach of contract. If, however, the facts
establish that the claim involves the defendant’s violation of a broader social duty
owed to all individuals, which is imposed by the law of torts and, hence, exists
regardless of the contract, then it must be regarded as a tort.
Id. at 68 (internal citations omitted); see also Dommel Prop. LLC v. Jonestown Bank & Tr. Co.,
626 F. App’x 361, 364 (3d Cir. 2015) (“The gist of the action doctrine precludes tort claims
where the true gravamen, or gist, of the claim sounds in contract.”).
The gist of the action doctrine bars a tort claim that “essentially duplicates a breach of
contract claim or the success of which is wholly dependent on the terms of the contract.” eToll,
Inc. Elias/Savion Advert., Inc., 811 A.2d 10, 19 (Pa. Super. 2002) (quotation omitted). “To
evaluate whether the gist of the action doctrine applies, a court must identify the duty breached,
because the nature of the duty alleged to have been breached . . . [is] the critical determinative

factor in determining whether the claim is truly one in tort, or for breach of contract.” Downs v.
Andrews, 639 F. App’x 816, 819 (Gd Cir. 2016) (quoting Bruno, 106 A.3d at 68). Although
predating Bruno’s comprehensive exploration of the gist of the action doctrine, a decision of the
United States District Court for the Eastern District of Pennsylvania provided an accurate
analysis under Pennsylvania law where a tort claim will be barred by the gist of the action
doctrine:
The doctrine bars tort claims: (1) arising solely from a contract between the
parties; (2) where the duties allegedly breached were created and grounded in the
contract itself; (3) where the liability stems from a contract; or (4) where the tort
claim essentially duplicates a breach of contract claim or the success of which is
wholly dependent on the terms of a contract.
Brown & Brown, Inc. v. Cola, 745 F. Supp. 2d 588, 619-20 (E.D. Pa. 2010).
Emrit’s negligence, conversion, and products liability claims cannot stand in light of the
gist of the action doctrine because they cannot be separated from the parties’ contractual
relationship. Emrit has alleged that PNC closed his three bank accounts without giving him
sufficient reason. (ECF No. 3, § 16). This allegation, the language of the parties’ Agreement
and the factual recitation set forth by Emrit in his Complaint lead to the unavoidable conclusion
that Emrit’s negligence, conversion, and products liability claims arise solely from the parties
Agreement, that the duties allegedly breached were created and grounded in the Agreement, and
that any possible liability stems from that contract. In other words, Emrit’s tort claims sound in
contract. They are, quite simply, duplicative and redundant of his breach of contract claim.
Courts have cautioned against dismissal based on the gist of the action doctrine before
discovery is conducted. See Addie v. Kjaer, 737 F.3d 854, 868 (3d Cir. 2013) (noting that
applying the doctrine generally involves a fact-intensive undertaking by a court). This is not,
however, an inflexible position, and there is no question that where, as pled, a tort claim cannot

be separated from the parties’ contractual relationship, the Court need not permit discovery on a
futile claim. Moreover, an examination of the caselaw where courts deny a motion to dismiss
shows that in many, if not most cases, the tort that was pled was one of misrepresentation (fraud
in the inducement) which does not relate to performance of the contract, but to its formation.
See, e.g., Little Souls, Inc. v. State Auto Mut. Ins. Co., No. 03-5722, 2004 WL 503538, at *2-3
(E.D. Pa. Mar. 15, 2004) (denying a motion to dismiss where plaintiff alleged
“misrepresentations occurred both before and after the formation of the contract”). There is no
question that courts have granted motions to dismiss based on the gist of the action doctrine
where the claims relate to the performance of the contract, even where the tort claim was
presented as one for fraud. See Caudill Seed & Warehouse Co. v. Prophet 21, Inc., 123 F. Supp.
2d 826, 834 (E.D. Pa. 2000) (the court recognized that although “caution should be exercised in
determining the gist of an action at the motion to dismiss stage,” it still dismissed the claim
because “the agreement [was] at the heart of plaintiff's ongoing fraud claim .. . .”); Galdieri v.
Monsanto Co., 245 F. Supp. 2d 636, 651 (E.D. Pa. 2002) (barring fraud claims under the gist of
the action doctrine because the fraud claims were “intertwined” with breach of contract claims).
The only allegations seemingly supporting Emrit’s tort claims relate to the performance
under the contract, not its formation. Discovery in this case is not reasonably likely to
demonstrate that the claims—as pled-—-stem from duties outside the bounds of the parties’
Agreement. As such, the Court can determine at this time that Emrit’s negligence, conversion,
and products liability claims fail as a matter of law due to the applicability of the “gist of the
action” doctrine. Counts Two, Three, and Four will be dismissed with prejudice.
C. Count Five and Count Six will be dismissed.

There are two forms of implied warranty in Pennsylvania: warranty of merchantability
and warranty of fitness for a particular purpose. They arise by operation of law and serve to
protect buyers from loss where the goods purchased are below commercial standards or unfit for
a buyer’s purpose. Goods are defined as follows:
“Goods” means all things (including specially manufactured goods) which are
movable at the time of identification to the contract for sale other than the money
in which the price is to be paid, investment securities (Division 8) and things in
action. “Goods” also includes the unborn young of animals and growing crops
and other identified things attached to realty as described in section 2107 (relating
to goods to be severed from realty; recording).
13 Pa.C.S.A. § 2105(a). The implied warranty of merchantability “protect[s] buyers from loss
where goods purchased are below commercial standards.” Barton v. Lowe's Home Ctrs., Inc.,
124 A.3d 349, 357 (Pa. Super. 2015); see also 13 Pa.C.S.A. § 2314(b)(3). Goods need not be of
the best quality, but “should ... be of reasonable quality within [the] expected variations and for
the ordinary purpose for which they are used.” /d. at 358. An implied warranty of fitness for a
particular purpose arises “when the seller at the time of contracting has reason to know (1) any
particular purpose for which the goods are required; and (2) that the buyer is relying on the skill
or judgment of the seller to select or furnish suitable goods.” 13 Pa.C.S.A. § 2315; see also Gall
ex rel. Gall y. Allegheny County Health Dep’t, 555 A.2d 786, 790 (Pa. 1989).
PNC argues that Emrit cannot sustain a claim under either theory as a matter of law
because his former bank accounts are not “goods.” The Court concurs. Count Five (Breach of
Implied Warranty of Fitness for a Particular Purpose) and Count Six (Breach of Implied Warrant
of Merchantability) fail as a matter of law, and they will be dismissed with prejudice.
D. Count Seven will be dismissed.
With all due respect to Emrit, the Court cannot, even reading the Complaint in a light
most favorable to Emrit, determine what claim he is raising in Count Seven, which alleges a

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Breach of Banking and Usury Laws Affiliated With Federal Trade Commission (FTC),
Consumer Financial Protection Board (CFPB), Federal Reserve, and Dodd-Frank. Emrit fails to
cite to any federal or state statute, or plead any facts. This is not a situation where the Court can
liberally read Count Seven to state a valid claim on which Emrit could prevail. Count Seven is
completely devoid of any sound factual or legal basis to infer or assume that an actionable wrong
has been committed against Emrit. In other words, Count Seven is insufficient as a matter of law
to state a claim for relief. Given the incomprehensibility of this claim, and its clear lack of merit,
Count Seven will be dismissed with prejudice.
Til. CONCLUSION
The Court will grant PNC’s Motion to Dismiss for Failure to State a Claim (ECF Nos. 8)
by Order of Court to follow. Although amendment is to be liberally granted under Rule 15,
leave to amend will not be granted here due to its futility and the fact that Emrit is litigating (or
has unsuccessfully litigated) the same allegations against PNC in other district courts. All claims
against PNC will be dismissed with prejudice, and this matter will be closed.
Lastly, a word of caution to Emrit is appropriate given his history as a vexatious litigant
in other federal courts, and the fact that he filed five identical complaints against PNC in other
district courts. The Court “and other federal courts are funded by the taxpayers of this country to
adjudicate genuine disputes, not to function as playgrounds for would-be lawyers or provide an
emotional release for frustrated litigants.” Harvey v. United States, 149 Fed. Cl. 751, 775
(2020), aff'd, 845 F. App’x 923 (Fed. Cir. 2021) (quoting Constant v. United States, 929 F.2d
654, 659 (Fed. Cir. 1991)). The Court retains inherent power to place reasonable restrictions on
Emrit’s ability to file in this district in the future. Pursuant to the All Writs Act, 28 U.S.C. §
1651(a), a district court may enjoin “abusive, groundless, and vexatious litigation.” Brow v.

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Farrelly, 994 F.2d 1027, 1038 (3d Cir. 1993); see also In re Oliver, 682 F.2d 443, 445 (3d Cir.
1982). Accordingly, Emrit is hereby advised that abuse of the judicial process by filing meritless
and repetitive actions in the Western District of Pennsylvania may result in the imposition of a
filing injunction or other appropriate restrictions on his access to filing.

BY THE COURT:

WILLIAM S. STICKMAN IV
UNITED STATES DISTRICT JUDGE

2lalzz.
Dated OF

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10417574. Public record. Not legal advice.