Ortiz v. Keystone Premier Settlement Services LLC

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JUAN ORTIZ, individually and on behalf

of those similarly situated,

CIVIL ACTION NO. 3:23-CV-01509

Plaintiff,

v. (MEHALCHICK, J.)

KEYSTONE PREMIER SETTLEMENT

SERVICES, LLC, MICHELLE

MACFARLANE, and MICHELLE

ELLIS,

Defendants.

MEMORANDUM

Presently before the Court are two motions to dismiss and strike class allegations

brought by Defendants Keystone Premier Settlement Services, LLC (“Keystone) and

Michelle Ellis (“Ellis”) (collectively, “Keystone Defendants”), and Michelle MacFarlane

(“MacFarlane”) (collectively, “Defendants”). (Doc. 9; Doc. 30). On September 12, 2023,

Plaintiff Juan Ortiz (“Ortiz”) initiated this action by filing a complaint on behalf of himself

and those similarly situated, asserting claims under Pennsylvania’s Revised Uniform Law on

Notarial Acts (“RULNA”), 57 Pa. Cons. Stat. § 301, and Pennsylvania's Unfair Trade

Practices and Consumer Protection Law (“UTPCPL”), 73 Pa. Stat. Ann. § 201-1, as well as

claims for unjust enrichment. (Doc. 1). For the following reasons, Defendants’ motions to

dismiss shall be DENIED in part and GRANTED in part. (Doc. 9; Doc. 30). Defendants’

motions to strike class allegations shall be DENIED. (Doc. 9; Doc. 30).

I. BACKGROUND AND PROCEDURAL HISTORY

The following background is taken from the Complaint. (Doc. 1). On or around

October 2, 2022, Ortiz closed on a purchase of real estate in Tannersville, PA and completed

a Closing Disclosure Form. (Doc. 1, ¶ 17). A Closing Disclosure is a form created by the

Frank-Dodd Wall Street Reform and Consumer Protection Act, 12 U.S.C. § 5301, and

required in real estate loans such as the one at bar. (Doc. 1, ¶ 18). In Ortiz’s Closing Disclosure

Form, which itemized costs associated with the mortgage, Ortiz was charged a $66 notary fee

by MacFarlane, which Ortiz paid. (Doc. 1, ¶ 17). According to Ortiz, this charge was

unlawful. (Doc. 1, ¶ 35).

Ortiz filed the instant Complaint, alleging the following Counts against Keystone, as

well as against MacFarlane and Ellis in their individual capacities, for the overcharge of

notary services: Count I – Violation of RULNA, 57 Pa. Cons. Stat. § 301; Count II – Unjust

Enrichment; and Count III – Violation of UTPCPL, 73 Pa. Stat. Ann. § 201-1. (Doc. 1, ¶¶

22-35; Doc. 1, ¶ 24). Ortiz brought this action on behalf of himself, and all others similarly

situated pursuant to Rule 23(a), 23(b)(2), 23(b)(3), and 23(c)(4) of the Federal Rules of Civil

Procedure. (Doc. 1, ¶ 39) Ortiz alleges that he justifiably relied on Defendants to abide by

Pennsylvania law when providing notarial services and as a result of the overcharge,

Defendants were unjustly enriched. (Doc. 1, ¶¶ 25-35, 56-77). As relief, Ortiz seeks an award

of actual damages incurred by himself and class members, including an award to Ortiz for his

time and effort in litigating this case with interest, treble damages in the sum of three times

the amount of money overcharged, and reasonable costs and expenses, as well as punitive

damages. (Doc. 1, ¶¶ 61, 68, 77).

On October 5, 2023, Keystone Defendants filed the instant motion to dismiss and

motion to strike class action allegations. (Doc. 9). On November 6, 2023, Keystone

Defendants filed a brief in support. (Doc. 19). Ortiz filed a brief in opposition on November

27, 2023. (Doc. 24). Keystone Defendants filed a reply brief on December 18, 2023. (Doc.

31). Also on December 18, 2023, MacFarlane filed a motion to dismiss and motion to strike

class action allegations, and on January 2, 2024, she filed a brief in support, which made

materially identical arguments to those in Keystone Defendants’ brief in support. (Doc. 30;

Doc. 39). Ortiz filed a brief in opposition to MacFarlane’s motion to dismiss on January 16,

2024, which made materially identical arguments to those in its brief in opposition to

Keystone Defendants’ motion to dismiss. (Doc. 38). MacFarlane filed a reply brief on January

30, 2024. (Doc. 39). On February 16, 2024, Ortiz filed two identical notices of supplemental

authority. (Doc. 40, Doc. 41). Keystone Defendants filed a second reply brief responding to

the notice of supplemental authority on February 19, 2024, and Ellis filed a materially

identical second reply brief responding to the notice of supplemental authority on March 7,

2024. (Doc. 42, Doc. 43). This Court heard oral argument on the motions to dismiss on

Tuesday, July 16, 2024. Accordingly, the motions to dismiss have been fully briefed and are

ripe for disposition.

II. LEGAL STANDARDS

A. MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

which are not entitled to the assumption of truth, and finally determine whether the

complaint’s factual allegations, taken as true, could plausibly satisfy the elements of the legal

claim. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule

12(b)(6) motion, the court may consider the facts alleged on the face of the complaint, as well

as “documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements which make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal

conclusions’ . . . .” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting

In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a

court assume that a plaintiff can prove facts that the plaintiff has not alleged. Associated Gen.

Contractors of Cal. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

Additionally, Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Thus, a well-pleaded

complaint must recite factual allegations that are sufficient to raise the plaintiff’s claimed right

to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a

cause of action. There is no requirement that the pleading be specific or probable. Schuchardt,

839 F.3d at 347 (citing Phillips v. Cty. of Allegheny, 515 F.3d 224, at 233-234 (3d Cir. 2008).

Rule 8(a) requires a “showing that ‘the pleader is entitled to relief, in order to give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93-94 (2007) (quoting Fed. R. Civ. P. 8(a)(2)); see also Phillips, 515 F.3d

at 233 (citing Twombly, 550 U.S. at 545).

B. MOTION TO STRIKE

Rule 12(f) of the Federal Rules of Civil Procedure permits the Court to “strike from a

pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” The “purpose of a motion to strike is to clean up the pleadings, streamline litigation,

and avoid unnecessary forays into immaterial matters.” Natale v. Winthrop Res. Corp., No. 07-

2686, 2008 WL 2758238, at *14 (E.D. Pa. July 9, 2008) (internal quotation marks omitted).

“Content is immaterial when it has no essential or important relationship to the claim

for relief. Content is impertinent when it does not pertain to the issues raised in the complaint.

Scandalous material improperly casts a derogatory light on someone, most typically on a

party to the action.” Champ v. USAA Casualty Insurance Company, 2020 WL 1694372, at *2

(E.D. Pa. 2020) (quoting Lee v. Eddystone Fire & Ambulance, No. 19-cv-3295, 2019 WL

6038535, at *2 (E.D. Pa. Nov. 13, 2019)) (quotation omitted). “[S]triking a pleading or a

portion of a pleading ‘is a drastic remedy to be resorted to only when required for the purposes

of justice.’ ” Id. (Lee v. Dubose Nat'l Energy Servs., Inc., No. 18-cv-2504, 2019 WL 1897164, at

*4 (E.D. Pa. Apr. 29, 2019)) (same). Thus, motions to strike pursuant to Rule 12(f) are

generally disfavored “unless the allegations have no possible relation to the controversy and

may cause prejudice to one of the parties, or if the allegations confuse the issues in the case.”

Natale, 2008 WL 2758238, at *14 (quoting River Rd. Devel. Corp. v. Carlson Corp., No. 89-

7037,1990 WL 69085, at *2 (E.D. Pa. May 23, 1990)); Eddystone Fire, 2019 WL 6038535 at

*3 (same).

Further, “[w]hen faced with allegations that could possibly serve to achieve a better

understanding of plaintiff's claims or perform any useful purpose in promoting the just

disposition of the litigation, courts generally deny such motions to strike.” Cestra v. Mylan,

Inc., No. 14-825, 2015 WL 2455420, at *7 (W.D. Pa. May 22, 2015) (quoting Eisai Co. v. Teva

Pharm. USA, Inc., 629 F. Supp. 2d 416, 425 (D.N.J. 2009), as amended (July 6, 2009)).

III. DISCUSSION

Defendants aver that Count I should be dismissed because RULNA does not provide

a private cause of action; Count II should be dismissed because Ortiz fails to allege

Defendants retained a benefit sufficient to state a claim for unjust enrichment; and Count III

should be dismissed because Ortiz fails to demonstrate justifiable reliance sufficient to state a

claim under the UTPCPL. (Doc. 19, at 17-18, 22, 27-30; Doc. 35, at 27-30; Doc. 35, at 18,

22, 27-30).

A. FAILURE TO STATE A CLAIM UNDER RULNA

RULNA replaced the now-repealed Notary Public Law, 57 Pa. Stat. Ann. § 147 et

seq., which “[did] not provide for a private right of action.” Becker v. Chicago Title Ins. Co., No.

CIV.A. 03-2292, 2004 WL 228672, at *10 (E.D. Pa. Feb. 4, 2004); (Doc. 19, at 17-18; Doc.

35, at 18). Because “there is no functional difference between the operation of the statutory

sections cited in Becker [v. Chicago Title Ins. Co.] and the statutory sections that Plaintiff brings

an action under,” Defendants argue that the same conclusion should apply to RULNA. (Doc.

19, at 18); 2004 WL 228672, at *10. Defendants further contend that the statute fails the Third

Circuit’s implied right of action test because there is no legislative intent to create a cause of

action apparent in RULNA. (Doc. 19, at 19-21; Doc. 35, at 19-21). Defendants also submit

that enforcement is explicitly vested in the State Department because the statute provides an

alternative remedy for RULNA violations through an administrative penalty enforced by the

State Department. (Doc. 19, at 21; Doc. 35, at 21-22).

Plaintiff responds that Becker is inapplicable here, as RULNA, the statute at issue in

the instant case, was passed 10 years after Becker was decided. (Doc. 24, at 15-16; Doc. 38, at

17); 2004 WL 228672, at *10. Plaintiff further argues that this Court should imply a private

cause of action because RULNA was crafted for the benefit of persons harmed by RULNA

violations, there is no evidence of a lack of legislative intent, and a federal district court in

New Jersey implied a cause of action in New Jersey’s similar statute. (Doc. 24, at 17-23; Doc.

38, at 18-25).

RULNA specifies which acts are authorized and prohibited by notarial officers. 57 Pa.

Cons. Stat. § 304. The Act does not contain an explicit private cause of action, which has

recently become an issue of first impression for district courts within the Third Circuit. See 57

Pa. Cons. Stat. § 301; Smith v. Radian Settlement Servs., Inc., No. 4:23-CV-01652, 2024 WL

666178, at *1 (M.D. Pa. Feb. 16, 2024); Seplow v. Closing Pro, Inc., No. CV 23-3628, 2024 WL

649260 (E.D. Pa. Feb. 15, 2024). When the language of a statute does not explicitly provide

for a private cause of action, Pennsylvania utilizes a three-prong analysis as a framework to

determine whether a statute implicitly creates one. Est. of Witthoeft v. Kiskaddon, 733 A.2d 623,

626 (Pa. 1999) (citing Cort v. Ash, 422 U.S. 66 (1975)). These factors are as follows:

… (1) whether the plaintiff is one of the class for whose special benefit the

statute was enacted; (2) whether there is any indication of legislative intent,

explicit or implicit, either to create such a remedy or to deny one; and (3)

whether it is consistent with the underlying purposes of the legislative scheme

to imply such a remedy for the plaintiff.

Schappell v. Motorists Mut. Ins. Co., 934 A.2d 1184, 1189 (Pa. 2007) (citing

Witthoeft, 733 A.2d at 626).

The second factor, legislative intent, has been recognized as the “central inquiry” to

this determination and is disputed by the parties here. Witthoeft, 733 A.2d at 626. In reviewing

legislative intent, Pennsylvania courts have looked to factors including “‘the occasion and

necessity for the statute,’ ‘the mischief to be remedied,’ ‘the object to be attained,’ ‘the former

law, if any, including other statutes upon the same or similar subjects,’ and ‘the

contemporaneous legislative history.’” Smith, 2024 WL 666178, at *2 (quoting 1 Pa. C.S. §

1921(c)). Pennsylvania courts also look to the General Assembly to discern “whether there is

an implied right of action” absent clear statutory language. Palmiter v. Commonwealth Health

Sys., Inc., 260 A.3d 967, 973 (Pa. Super. Ct. 2021).

In the instant matter, the legislative intent factor does not weigh in favor of implying

a private cause of action. In support of his argument, Ortiz points to the language of § 323(c),

which states that “[t]he authority of the department [of state] under this section does not

prevent a person from seeking and obtaining other criminal or civil remedies provided by

law.” 57 Pa. Cons. Stat. § 323(c). Ortiz further notes that in 2023, Idaho implied a private

right of action in that state’s version of RULNA. (Doc. 38, at 24). Ortiz emphasizes that

RULNA is part of the revised uniform laws, which vary in limited ways from state to state,

and therefore Idaho’s RULNA statute is materially similar to Pennsylvania’s RULNA

statute. (Doc. 38, at 24). However, federal district courts in Pennsylvania have held as recently

as February 2024 that RULNA’s provision allowing for plaintiffs to seek other remedies

provided by law “does not suffice to create a private cause of action,” noting that it merely

provides the Department of State’s enforcement powers are not exclusive under RULNA.

Seplow, 2024 WL 649260, at *2. In fact, this provision may “support[] a conclusion that

private individuals seeking to enforce provisions of the statute must look to remedies provided

by other laws, especially because all the specific remedies and powers it enumerates are

explicitly reserved to the Department of State.” Seplow, 2024 WL 649260, at *2 (citing 57 Pa.

Cons. Stat. § 323(a) (“The department may deny, refuse to renew, revoke, suspend, reprimand

or impose a condition . . .”). Further, legislative history about the purpose or intent behind

RULNA reveals little. See Seplow, 2024 WL 649260, at *3 (“[g]iven the statutory language, I

cannot construe silence in the legislative history as indicating an intent on the part of the

Pennsylvania legislature to create a private remedy through the statute.”). The Court finds

that RULNA’s text implies that exclusive enforcement powers are the Department of State’s.

In examining the first and third factors, the Court find further support for the

conclusion that RULNA does not imply a private cause of action. The first factor, whether

the statute targets a benefitted class including the plaintiff, weighs against implying a private

cause of action because RULNA’s text does not focus on the benefitted class. RULNA focuses

on the regulated entities, rather than the benefitted class. Smith, 2024 WL 666178, at *3

(“[w]hen determining whether a statute was enacted for the benefit of a class of people, courts

consider whether there exists a ‘foreseeable and identifiable class.’ RULNA does no such

thing. Instead, it focuses entirely on the regulated entities, and empowers only the

Pennsylvania Department of State with the authority to enforce the statute”) (internal

citations omitted). Accordingly, this Court concludes that RULNA was not enacted for

Ortiz’s benefit.

The third factor, whether implying a cause of action would be consistent with the

legislative scheme, also weighs against implying a private right of action. While no court in

this Circuit has directly addressed this factor, the fact that the statute includes alternative

remedies and reserves enforcement power for the Department of State suggests that it would

be consistent with the legislative scheme for plaintiffs to rely on other causes of action and

remedies for RULNA violations. See Smith, 2024 WL 666178, at *2 (“[f]urther, RULNA

provides that it ‘does not prevent a person from seeking and obtaining other criminal or civil

remedies provided by law.’ […This] clearly and unambiguously provides that the law should

not be interpreted to foreclose alternative remedies just as the Smiths have done in this suit.”).

For these reasons, the Court will follow other federal district courts in Pennsylvania,

and decline find that a private right of action exists under RULNA. See Seplow, 2024 WL

649260; Smith, 2024 WL 666178. Accordingly, Defendants’ motion to dismiss Count I is

granted, and Count I is dismissed.

B. FAILURE TO STATE A CLAIM FOR UNJUST ENRICHMENT

Defendants submit that Ortiz’s unjust enrichment claim is deficient because he has

failed to plead the requisite fraud. (Doc. 19, at 26; Doc. 35, at 26-27). Defendants contend

that Ortiz contractually agreed to pay $66. (Doc. 19, at 26; Doc. 35, at 26-27). Therefore, the

voluntary payment doctrine, which bars recovery when a plaintiff, absent fraud or duress and

with full knowledge of the facts, voluntarily pays money to another, precludes any claim for

unjust enrichment. (Doc. 19, at 26; Doc. 35, at 26-27). Ortiz responds that the voluntary

payment doctrine is an affirmative defense, and plaintiffs are not required to plead facts

sufficient to overcome an affirmative defense at the motion to dismiss stage. (Doc. 24, at 27-

28; Doc. 38, at 29-30). Ortiz additionally contends that the pleadings do not demonstrate that

he paid the fee in a truly voluntary way with an “unadulterated understanding” of the facts.

(Doc. 24, at 29; Doc. 38, at 31).

Unjust enrichment is “the retention of a benefit conferred by another, without offering

compensation, in circumstances where compensation is reasonably expected, and for which

the beneficiary must make restitution.” Roethlein v. Portnoff L. Assocs., Ltd., 81 A.3d 816, 825

n.8 (Pa. 2013). An unjust enrichment action is based in equity and is one “which sounds in

quasi-contract or contract implied in law.” Seplow, 2024 WL 649260, at *4 (quoting Roethlein,

81 A.3d at 825 n.8). Quasi-contracts and contracts implied in law “are not based on the

apparent intention of the parties to undertake the performances in question, nor are they

promises. They are obligations created by law for reasons of justice.” Seplow, 2024 WL

649260, at *4 (quoting Schott v. Westinghouse Elec. Corp., 259 A.2d 443, 449 (Pa. 1969)). “‘The

elements of unjust enrichment are benefits conferred on one party by the other party,

appreciation of such benefits, and acceptance and retention of such benefits under such

circumstances that it would be inequitable for that party to retain the benefit without payment

of value.’” McConaghy v. Bank of New York, 192 A.3d 1171, 1175 (Pa. Super. Ct. 2018) (quoting

Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 917 (Pa. Super. Ct. 2017)).

Unjust enrichment claims can be pled either as an alternative to breach of contract or

as a companion to an underlying tort claim. Seplow, 2024 WL 649260, at *4; see also Whitaker

v. Herr Foods, Inc., 198 F. Supp. 3d 476, 492 (E.D. Pa. 2016). When unjust enrichment is pled

as an alternative to breach of contract, recovery is unavailable if a written or express contract

exists. Whitaker, 198 F. Supp. 3d at 492-3. When unjust enrichment is pled as a companion,

not an alternative, to an underlying tort claim and is established through improper conduct,

the existence of a written contract does not render recovery unavailable. See Whitaker, 198 F.

Supp. 3d at 492-3 (stating that unjust enrichment claims fall into two categories and only the

first category, quasi-contracts, precludes the doctrine when a written or express contract

exists). Further, when unjust enrichment is pled as a tort companion, it can be established

through improper conduct involved in an underlying claim, such as fraud. Seplow, 2024 WL

649260, at *4; see also Whitaker, 198 F. Supp. 3d at 492 (defining unjust enrichment as “a

theory based on unlawful or improper conduct established by an underlying claim, such as

fraud, in which case the unjust enrichment claim is a companion to the underlying claim.”).

In such cases, unjust enrichment need not be pled as an alternative to breach of contract.

Whitaker, 198 F. Supp. 3d at 492-3. Unjust enrichment claims may arise when a party’s

obligations are created by “reasons of justice,” rather than express terms. Schott, 259 A.2d at

449. Relevant here, notaries, as public officials who “owe a duty to the public to discharge his

or her functions with diligence” may be held liable under equitable theories of liability “for

reasons of justice.” Seplow, 2024 WL 649260, at *4 (citing Villanueva v. Brown, 103 F.3d 1128,

1137 (3d Cir. 1997)).

The affirmative defense of the voluntary payment doctrine precludes any claim for

unjust enrichment when a plaintiff, absent fraud or duress and with full knowledge of the

facts, voluntarily pays money to another. Ciser v. Nestle Waters N. Am. Inc., 596 F. App'x 157,

159 (3d Cir. 2015) (“voluntary payment doctrine[. . .] prevents the recovery of payments made

in the absence of fraud, duress, or similar compulsion”) (citing Matter of New Jersey State Bd. of

Dentistry, 423 A.2d 640, 643 (N.J. 1980)). “Consistent with this rationale, ‘[t]he voluntary

payment defense ... is inapplicable when money is paid by a person without full knowledge

of the facts.’” Essex Ins. Co. v. RMJC, Inc., 306 F. App'x 749, 755 (3d Cir. 2009) (quoting Liss

& Marion, P.C. v. Recordex Acquisition Corp., 937 A.2d 503, 514 (Pa. Super. Ct. 2007) (internal

quotation omitted).

Two Pennsylvania courts in the Third Circuit have addressed whether unjust

enrichment can arise from an unlawful overcharge of which only one party was aware, each

coming to opposite conclusions. Compare Seplow, 2024 WL 649260 with Smith, 2024 WL

666178.1 A notary company can retain an unjust benefit when it unlawfully overcharges for

services and the other party is not aware. See Seplow, 2024 WL 649260, at *4 (“the purportedly

‘agreed upon price’ incorporated an unlawful overcharge, of which one party – a party

exercising authority conferred by statute – was aware, and the other was not.”); see also Jarzyna

v. Home Properties, L.P., No. CV 10-04191, 2013 WL 12155357, at *1 n.3 (E.D. Pa. Dec. 13,

2013) (noting that a conferral of an actual benefit would be assumed if a landlord unlawfully

charges extra fees and actually retains them). Further, when a plaintiff “had no awareness of

the unlawful nature of the notary services charge, [] unless discovery reveals facts to the

contrary, a voluntary payment defense lacks merit.” Seplow, 2024 WL 649260, at *4; see Lawn

1 In Smith, the court followed the Tripicchio court and dismissed an unjust enrichment

claim in similar circumstances because plaintiffs “voluntarily” paid the overcharge. 2024 WL

666178, at *3. The Smith court reasoned that the plaintiffs in that case assumed that the

overcharged fee was in accordance with law, and “[m]oney paid voluntarily, although under

a mistake or ignorance of the law cannot be recovered.” 2024 WL 666178, at *3.

v. Enhanced Serv. Billing, Inc., No. 10-CV-1196, 2010 WL 2773377, at *2 (E.D. Pa. July 13,

2010) (“[t]he Voluntary Payment Rule does not preclude any of Plaintiff's claims in this case.

Plaintiff's Complaint alleges that payments were made to Defendants because unauthorized

and misleading charges were placed on Plaintiff's telephone bill. At this stage of the proceedings,

the depth of Plaintiff's knowledge regarding the Verizon bill is unclear.”) (emphasis added).

Affirmative defenses like the voluntary payment defense are not typically considered at the

motion to dismiss stage. See McLean v. Big Lots Inc., 542 F. Supp. 3d 343, 354 (W.D. Pa. 2021)

(“‘The voluntary payment doctrine is not properly considered at the motion to dismiss stage

when the factual record is insufficient to determine its viability.’”) (quoting Gallo v. PHH

Mortg. Corp., 916 F.Supp.2d 537, 553 (D. N.J. 2012)).

In this case, Defendants are a notary, an officer of a company whose purpose is to

provide notary services, and the company providing such services. (Doc. 1, ¶¶ 3-5). As such,

each has a duty to comply with the law and to serve the public “with diligence.” See Villanueva,

103 F.3d at 1137 (“‘[a] notary is a public officer and owes a duty to the public to discharge

his or her functions with diligence.”). Plaintiff’s complaint alleges that Defendants have

charged more than the law permitted for services conferred. (Doc. 1, ¶ 35). It is therefore

plausible that they received a benefit it would be inequitable for them to retain. However, the

benefit allegedly retained by each defendant must be analyzed individually. CPC Properties,

Inc. v. Dominic, Inc., No. CIV.A. 12-4405, 2013 WL 4457338, at *6 (E.D. Pa. Aug. 21, 2013)

(“[a]n unjust enrichment claim demands an individualized inquiry”).

Recovery based on an “indirect” benefit is possible and plaintiffs need not plead direct

interactions or communications with each defendant. Global Ground Support, LLC, v. Glazer

Enter., Inc., 581 F.Supp.2d 669, 676 (E.D. Pa. 2008) (“[p]laintiffs need not have directly dealt

with each defendant in order to allege a claim of unjust enrichment against them.”). However,

“the benefit to the defendant must be more than remote to support an unjust enrichment

claim.” Century Indem. Co. v. URS Corp., No. CIV.A. 08-5006, 2009 WL 2446990, at *6 (E.D.

Pa. Aug. 7, 2009) (citing Allegheny Gen. Hosp. v. Philip Morris, Inc., 228 F.3d 429, 447 (3d Cir.

2000)). When the benefit conferred on a defendant is “incidental,” a plaintiff cannot recover

from that defendant. See, e.g., Allegheny Gen. Hosp., 228 F.3d at 447 (“incidental benefit to the

Tobacco Companies is not enough to maintain an action; the nonpaying patients got the main

benefit, not the Tobacco Companies”).

1. Keystone

Keystone argues that Plaintiff fails to state an unjust enrichment claim because the

claim is based upon a contract for notary services, each party received the expected benefit,

and Plaintiff voluntarily paid for services. In resisting the conclusion that it retained a benefit

it would be inequitable to retain, Keystone relies heavily on the voluntary payment doctrine

and Tripicchio v. UPS Store, Inc., which held that defendants providing notarial services in New

Jersey could not be liable under the theory of unjust enrichment for an unlawful overcharge.

(Doc. 19, at 23-24; Doc. 35, at 23-25); 2023 WL 3182915, at *9. Plaintiff responds that

Keystone did retain an inequitable benefit because “the amount [Keystone retained in money

for services] was in excess of what Keystone lawfully applied toward notarial acts.” (Doc. 24,

at 12).

In his complaint, Plaintiff alleges that Keystone misrepresented unlawful fees when it

overcharged for notary services because Keystone instituted a policy to charge unlawful fees

and reasonable consumers would not know those fees were unlawful. (Doc. 1, ¶¶ 21, 25, 27).

Taking the facts as alleged, Keystone therefore accepted and appreciated additional monetary

payments in excess of what it was entitled to by law. See Seplow, 2024 WL 649260, at *4. At

oral argument, Plaintiff discussed the business and monetary benefits that a company can

enjoy when it overcharges and obtains a profit that is greater than what it is entitled to.

Therefore, this Court finds that Plaintiff sufficiently alleges that Keystone retained an actual

benefit. Cf. Jarzyna, 2013 WL 12155357, at *1 n.3. Similarly, the voluntary payment defense

is unavailing for Keystone. The voluntary payment defense is not ordinarily available at the

motion to dismiss stage, unless it is clear on the face of the Complaint that Plaintiff made this

payment with “full knowledge.” See McLean, 542 F. Supp. 3d at 354; Lawn, 2010 WL

2773377, at *2. Here, Plaintiff alleges that he assumed that Keystone, as a company with a

duty to provide a public service with diligence, was charging bona fide amounts. See, e.g., Liss

& Marion, P.C. v. Recordex Acquisition Corp., 983 A.2d 652, 661 (Pa. 2009) (voluntary payment

defense unavailable related to misrepresentation in invoice); see also Villanueva, 103 F.3d at

1137. Accordingly, Defendants’ motion to dismiss Count II as asserted against Keystone is

denied.

2. Ellis and MacFarlane

In addition to the same arguments made by Keystone, discussed supra, Ellis and

MacFarlane submit that Plaintiff fails to state an unjust enrichment claim against them as

individuals because Plaintiff does not allege any benefits conferred on Ellis or MacFarlane.

(Doc. 19, at 25; Doc. 35, at 25-26). Plaintiff alleges that he paid money to Keystone, not

directly to Ellis or MacFarlane. (Doc. 1, ¶¶ 17, 31-32, 35, 37). Plaintiff has not alleged any

specific benefit Ellis or MacFarlane retained based upon the overcharges. During oral

argument, Plaintiff speculatively argued that as employees of Keystone, Ellis and MacFarlane

benefit from the inflated profits based on the illegal overcharges. Plaintiff fails to allege that

Keystone paid its employees, including Ellis or MacFarlane, more based upon its policy of

overcharging. As alleged, the main benefit went to Keystone as a company, not to its

employees. See, e.g., Allegheny Gen. Hosp., 228 F.3d at 447 (barring unjust enrichment recovery

from a party who was not the primary beneficiary and who only benefitted incidentally).

Therefore, Plaintiff’s unjust enrichment claims against Ellis and MacFarlane fail.

Accordingly, Defendants’ motion to dismiss Count II as asserted against Ellis and

MacFarlane is granted and Count II as asserted against Ellis and MacFarlane is dismissed.

C. FAILURE TO STATE A CLAIM UNDER THE UTPCPL

The parties dispute whether Ortiz sufficiently alleged fraudulent conduct to state a

claim pursuant to the UTPCPL. (Doc. 19, at 27-30; Doc. 24, at 29-35; Doc. 35, at 27-30; Doc.

38, at 31-38). Specifically, Defendants aver that Ortiz “fails to make the requisite factual

allegations to support his UTPCPL claim.” (Doc. 19, at 30; Doc. 35, at 30). Defendants also

argue that the UTPCPL “does not provide a cause of action merely for overcharging.” (Doc.

31, at 18; Doc. 39, at 13, 19). Ortiz responds that he sufficiently alleged justifiable reliance by

alleging that Defendants’ overcharge was likely to cause confusion or misunderstanding.

(Doc. 24, at 33-34; Doc. 38, at 35-37).2

2 Ortiz also provides a lengthy list of citations to cases where courts have found

justifiable reliance in analogous circumstances. (Doc. 24, at 33-34; Doc. 38, at 35-37). Ortiz

notes that in situations like the ones at bar, courts in the Third Circuit found justifiable reliance

sufficient to state a UTPCPL claim. See Butakis v. NVR, Inc., 668 F. Supp. 3d 349, 357 (E.D.

Pa. 2023) (plaintiffs pled justifiable reliance when defendants “failed to disclose to them that

the Special Assessment carried interest and other charges, which they further relied upon

when deciding to buy homes.”); McMahon v. Chipotle Mexican Grill, Inc., No. 2:20-CV-1448,

2023 WL 2760365, at *8 (W.D. Pa. Apr. 3, 2023) (customers “inherently rely on prices

represented by Chipotle as being accurate”); Slemmer v. McGlaughlin Spray Foam Insulation,

Inc., 955 F. Supp. 2d 452, 461 (E.D. Pa. 2013) (plaintiffs pled justifiable reliance by alleging

that defendants did not disclose damaging side effects); Coleman v. Commonwealth Land Title

Ins. Co., 684 F.Supp.2d 595, 619 (E.D. Pa. 2010) (“[p]laintiffs allege sufficient facts of

justifiable reliance at this stage by pleading that no [p]laintiff would have knowingly paid a

The UTPCPL acts as Pennsylvania’s Consumer Protection Law, seeking to prevent

“[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of

any trade or commerce....” Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,

151 (Pa. Super. Ct. 2012) (quoting 73 Pa. Stat. Ann. § 201–3). The catch-all provision of

UTPCPL prohibits “fraudulent or deceptive conduct which creates a likelihood of confusion

or of misunderstanding.” Bennett, 40 A.3d at 154 (quoting 73 Pa. Stat. Ann. § 201–2(4)(xxi)).

This catch-all provision “is meant to encompass a broad range of deceptive behavior on which

a consumer relies to his detriment,” including charging more than the statutorily allowable

maximum price. Seplow, 2024 WL 649260, at *6. “The purpose of the UTPCPL is to protect

the public from unfair or deceptive business practices such as fraud.” Bennett, 40 A.3d at 151

(citing Agliori v. Metropolitan Life Ins. Co., 879 A.2d 315, 318 (Pa. Super. Ct. 2005)). To

effectuate this purpose, Pennsylvania’s Supreme Court has held that the UTPCPL is to be

“liberally construed.” Com., by Creamer v. Monumental Properties, Inc., 329 A.2d 812, 816 (Pa.

1974) (citing Verona v. Schenley Farms Co., 167 A. 317, 320 (Pa. 1933)). As a result, courts

recognize a lower pleading standard for UTPCPL claims as opposed to claims of common

law fraud. See Seplow, 2024 WL 649260, at *5; See Bennett, 40 A.3d at 154.

“To bring a private cause of action under the UTPCPL, a plaintiff must show that he

justifiably relied on the defendant's wrongful conduct or representation and that he suffered

harm as a result of that reliance.” Seplow, 2024 WL 649260, at *5 (quoting Yocca v. Pittsburgh

Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004)); accord Hunt v. U.S. Tobacco Co., 538 F.3d

217, 224 (3d Cir. 2008)). As such, “a plaintiff alleging violations of the Consumer Protection

premium for title insurance that was higher than the premium that was actually due and

owing.”).

Law must prove justifiable reliance.” Hunt, 538 F.3d at 224. “For pleading purposes, the

complaint must establish that, had the plaintiff known of the deceptive conduct, he would

have acted differently.” Seplow, 2024 WL 649260, at *5.

Under Pennsylvania law, plaintiffs do not “enjoy[] a presumption of reliance,” as this

must be proven affirmatively. Hunt, 538 F.3d at 227. However, Pennsylvania courts have

“recognized one exception to the requirement to prove justifiable reliance, where there is a

fiduciary relationship.” Seplow, 2024 WL 649260, at *6; See Debbs v. Chrysler Corp., 810 A.2d

137, 157 (Pa. Super. Ct. 2002). Importantly, courts have considered justifiable reliance a

question for a fact-finder. Johnson v. MetLife Bank, N.A., 883 F. Supp. 2d 542, 548-49 (E.D.

Pa. 2012) (noting that justifiable reliance is a question of fact, depending on the parties’

circumstances and relationship). For UTPCPL claims with multiple defendants, a plaintiff

must make specific allegations of justifiable reliance for each defendant. Loften v. Diolosa, No.

CIV. A. 3:CV-05-1193, 2008 WL 2994823, at *8 (M.D. Pa. July 31, 2008) (“specifics must be

plead as to each [d]efendant in order to accomplish the purpose of providing defendants with

notice of particular unfair or deceptive acts asserted against them and reasonable opportunity

to answer.”) (internal quotation and citation omitted). Therefore, this Court will analyze the

allegations against Keystone and individual defendants, Ellis and MacFarlane, separately to

determine if Ortiz has met his pleading burden.

1. Keystone

Keystone argues that Ortiz fails to state a claim for a UTPCPL violation because Ortiz

has not alleged facts that he justifiably relied on Keystone such that “he was spurred to act by

alleged fraudulent conduct.” (Doc. 19, at 30). Ortiz responds that he has pled that he

justifiably relied on Keystone’s improper conduct of setting a policy of overcharging for notary

services by alleging a “reasonable consumer inherently expects fees for settlement services

listed in a Closing Disclosure to be bona fide and proper in amount” and thus “assume[s

Keystone’s] $66 notary fee [is] bona fide and proper.” (Doc. 1, ¶¶ 27, 29). Ortiz alleges that

Keystone’s conduct in setting a policy charging $66 “created a likelihood of confusion or

misrepresentation, [Ortiz] justifiably relied on Defendant’s [sic] wrongful conduct or

misrepresentation, and [] he suffered harm and ascertainable loss as a result of that reliance.”

(Doc. 24, at 34; Doc. 38, at 35-36).

These allegations are sufficient for Ortiz to meet his burden at this stage of the litigation

as to his claims against Keystone. See Coleman, 684 F.Supp.2d at 619 (finding justifiable

reliance sufficiently pled under the UTPCPL when a plaintiff was charged more than she

owed since no reasonable person would knowingly pay more for insurance than was owed);

see also Cohen v. Chicago Title Ins. Co., No. CIV.A.06-873, 2006 WL 1582320, at *3 (E.D. Pa.

June 5, 2006) (denying a motion to dismiss UTPCPL claims based on title insurance

overcharges above the statutory maximum rate); Cf. Salvati v. Deutsche Bank Nat. Tr. Co., 575

F. App'x 49, 56 (3d Cir. 2014) (dismissing UTPCPL claims because a plaintiff admitted to

not having actually paid the unlawful charges imposed by defendants and thus suffered no

loss). Accordingly, Keystone Defendants’ motion to dismiss the UTPCPL claim against

Keystone is denied.

2. Ellis

Ellis argues that Ortiz has failed to state a claim for UTPCPL violations against her

because Ortiz did not “purchase” anything from Ellis, does not make any factual allegations

against her specifically, and Ellis and Ortiz did not have any communication or interaction

with one another. Ortiz responds that under the “participation theory” Ellis can be held liable

for tortious conduct in which she participated, even without direct interactions with Ortiz.

(Doc. 24, at 36). Ortiz further contends that he alleged in his Complaint that “Ellis as an

officer of Defendant Keystone, Inc., actively participated in the alleged misconduct, practice,

and policy of charging inflated notary fees.” (Doc. 24, at 36; Doc. 1, ¶¶ 24, 60, 68, 74). Ellis

responds in Keystone Defendants’ reply brief that participation theory does not apply in

contracts, and as such, is not applicable to any claim here. (Doc. 31, at 11).

In Pennsylvania, under the participation theory, plaintiffs can hold corporate officers

liable in their individual capacity “where the record establishes the individual’s participation”

in a wrongful act. Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 90 (Pa. 1983) (citing Donsco, Inc.

v. Casper Corp., 587 F.2d 602, 606 (3d Cir. 1978)). The individual must be an actor who is an

“actual participant” in the corporation’s alleged conduct but need not be an owner of the

corporation. See Donsco, Inc., 587 F.2d at 606 (“[t]he only crucial predicate to Pinsker's liability

is his participation in the wrongful acts.”). Participation theory can open individuals to

liability even in the contract context. Loeffler v. McShane, 539 A.2d 876, 879 (Pa. Super. Ct.

1988) (“[i]n a tort action, even if the plaintiff has entered into a contractual relationship with

the corporation, the corporate officer is not insulated from liability…This is because the basis

for tort liability is not the breach of contract with the corporation but rather the breach of an

independent legal obligation to avoid injury to the plaintiff.”). In such contexts, corporate

officers can be held liable for misfeasance, but not nonfeasance. Wicks, 470 A.2d at 90.

Participation in setting prices at illegal rates has been considered participation in a wrongful

act. See Knuth v. Erie-Crawford Dairy Cooperative Ass'n., 463 F.2d 470, 481 (3d Cir. 1972), cert.

denied, 410 U.S. 913 (1973) (“Our best judgment is that the Courts of Pennsylvania would

hold that directors of a sales agent corporation with authority from its principals to sell only

at legal prices who knowingly authorize sales at less than those prices have participated in

conversions and are personally liable.”). Courts have noted that when evidence discloses that

an actor did not know that sales took place at illegal prices, such actors should not be liable.

Knuth, 463 F.2d at 481.

Ortiz alleges no specific conduct against Ellis in personally charging fees for notary

services, but asserts that she participated in such conduct by nature of her role in the company.

(Doc. 1, ¶¶ 24, 60, 68, 74). At this stage in the litigation, Ellis’s knowledge and participation

in the tortious conduct is not clear. When considering a motion to dismiss, this Court must

take Ortiz’s allegations that Ellis participated in illegally setting notary prices as true. (Doc.

1, ¶¶ 24, 60, 68, 74). Therefore, his allegations against Ellis, while vague, survive at this

juncture. See Rosenberg v. Nassau Life & Annuity Co., No. CV 21-2673-KSM, 2022 WL 2718607,

at *15 (E.D. Pa. July 13, 2022) (denying a motion to dismiss UTPCPL tort claims when “[t]he

lack of specificity in this case seems related not to the fraud allegations themselves but rather

to the division of responsibility and corporate structure of [d]efendants, which is presumably

within [d]efendants’ knowledge.”); but see Loften, 2008 WL 2994823, at *8 (“allegations that

Fremont violated the UTPCPL are inconsistent with other sections of the [a]mended

[c]omplaint, which aver that [p]laintiff had no contact with Fremont whatsoever.”); Kamara

v. Columbia Home Loans, LLC, 654 F. Supp. 2d 259, 265 (E.D. Pa. 2009) (dismissing UTPCPL

claims against individual defendants when “plaintiff does not distinguish among these

defendants in setting forth the alleged violations”). Accordingly, Keystone Defendants’

motion to dismiss the UTPCPL claim against Ellis is denied.

3. MacFarlane

MacFarlane argues that Ortiz has failed to state a claim for UTPCPL violations against

her for the same reasons Keystone provides, supra. (Doc. 35, at 27-30). Ortiz responds with

identical arguments to those he makes in response to Keystone, supra. (Doc. 38, at 32). Ortiz

additionally argues that MacFarlane, as a notary public and former employee at Keystone,

provided notary services at the closing of his home and “personally participated” in the

conduct of “implicitly represent[ing] that the [overcharged] fee for notarial services was the

amount lawfully due and owing.” (Doc. 1, ¶¶ 4, 17; Doc. 39, at 32). While MacFarlane resists

this conclusion in her reply brief, arguing that she did not participate in Keystone’s tortious

conduct, the allegations in the Complaint plainly state that MacFarlane personally executed

the transaction with Ortiz. (Doc. 1, ¶¶ 4, 17; Doc. 39, at 11-12). Therefore, Ortiz has

sufficiently pled that MacFarlane personally participated in the alleged tortious conduct. For

the same reasons that Ortiz states a valid UTPCPL claim against Keystone, and because Ortiz

sufficiently alleges that MacFarlane personally and actively participated in charging the $66

fee and representing that charge as lawful, he states a valid UTPCPL claim against

MacFarlane. Accordingly, MacFarlane’s motion to dismiss the UTPCPL claim is denied.

D. CLASS ALLEGATIONS

Finally, Defendants submit that this Court should strike all class allegations, as these

claims are not viable class claims. (Doc. 19, at 31-47; Doc. 35, at 30-46). Ortiz asserts that the

motion to dismiss stage is premature to decide issues of class certification since discovery has

not yet occurred at this stage. (Doc. 24, at 37). There is little disputing this point. Whether

plaintiffs meet the requirements of Rule 23 is typically decided on a motion for class

certification, not on a motion to dismiss or strike. “[C]ourts within the Third Circuit have. . .

[found] a motion to strike class allegations premature where a motion for class certification

has not been made and denied.” Martin v. Ford Motor Co., 765 F. Supp. 2d 673, 680 (E.D. Pa.

2011). “[I]n general, a court should wait to resolve a motion to strike class allegations until

someone moves for class certification.” P.V. ex rel. Valentin v. Sch. Dist. of Phila., 2011 WL

5127850, at *3 (E.D. Pa. Oct. 31, 2011); see also Richard Roe W.M. v. Devereux Found., 650 F.

Supp. 3d 319, 336 (E.D. Pa. 2023). “It is only when no amount of discovery or time will allow

for plaintiffs to resolve deficiencies in class definitions under Rule 23, that a motion to strike

class allegations should be granted.” Luciano v. Tchrs. Ins. & Annuity Ass'n of Am - Coll. Ret.

Equities Fund, No. CV156726ZNQDEA, 2022 WL 1044969, at *3 (D. N.J. Apr. 7, 2022)

(internal quotation marks omitted); see also Jackson v. Locust Med., LLC, No. 4:22-CV-00424,

2022 WL 16540675, at *2 (M.D. Pa. Oct. 28, 2022). Because there appear to be questions of

fact and law to be resolved, the Court denies Defendants’ motions to strike. See Seplow, 2024

WL 649260 (finding the motion to dismiss stage is a premature time to strike class allegations

pursuant to both unjust enrichment and the UTPCPL when discovery could reveal the

viability of class claims).

E. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.

2002). Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave

to amend.’” In re Avandia Mktg., Sales Practices & Prod. Liab. Litig., 564 F. App'x 672, 673 (3d

Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). In this

case, Ortiz’s unjust enrichment claims against Ellis and MacFarlane are dismissed without

prejudice. Beyond legal conclusions, Ortiz has not sufficiently alleged facts that Ellis or

MacFarlane actually retained a benefit from the overcharge. Therefore, the Court will grant

Ortiz leave to file an amended complaint in an attempt to cure the deficiencies outlined herein

in regard to these claims. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Austin Powder Co. v. No. 1

Contracting Corp., No. 3:07-CV-730, 2011 WL 1120418, at *4 (M.D. Pa. Mar. 24, 2011)

(granting leave to amend when plaintiff failed to adequately plead a benefit conferred on one

defendant).

IV. CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss Count I are GRANTED.

(Doc. 9; Doc. 30). Count I is DISMISSED with prejudice.3 The motions to dismiss Count II

as asserted against Ellis and MacFarlane are GRANTED, and Count II as asserted against

Ellis and MacFarlane is DISMISSED without prejudice. The motions to dismiss Count II

as asserted against Keystone are DENIED. The motions to dismiss Count III are DENIED.

The motions to strike are DENIED. Ortiz shall have 14 days to file an amended complaint

setting forth allegations in support of this civil action against Defendants and curing the

deficiencies outlined herein.

An appropriate Order follows.

BY THE COURT:

Dated: July 23, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge

3 Amendment is futile when a statute creates no private right of action. Redmond v. Fresh

Grocers Store, 402 F. App'x 685, 686 (3d Cir. 2010).