The Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. § 1331
(2006) and 18 U.S.C. § 1964 (2000) since Plaintiffs’ claims arise under RICO, 18 U.S.C. §§ 1961-
1968 (2000). The Court has jurisdiction over the Pennsylvania law and common law class claims
pursuant to the Class Action Fairness Act, 28 U.S.C.A. § 1453 (2006), because there is diversity of
citizenship and the amount in controversy exceeds $5,000,000, 28 U.S.C.A. § 1332(d)(2), and
pursuant to the Court’s supplemental jurisdiction, 28 U.S.C.A. § 1367 (2006).
A. § 910-44(b) of TICA Does Not Bar Plaintiffs From Pursuing a Private Right of Action Before Exhausting Administrative Remedies.
As a threshold matter, Defendant moves to dismiss the Amended Complaint because
Plaintiffs have not exhausted administrative remedies provided in TICA prior to filing this suit.
Commonwealth Land argues that § 910-44(b) of TICA provides a statutory remedy which must be
pursued first by any person aggrieved by the application of the title insurer’s rating system. Recent
developments in Pennsylvania appellate law, however, are contrary to the position of Defendant.
This matter is, in part, a diversity of jurisdiction case. In a diversity case, this Court must
apply the substantive law of Pennsylvania. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78-79 (1938);
State Auto Prop. & Cas. Ins. Co. v. Pro Design, P.C., 566 F.3d 86, 89 (3d Cir. 2009). Ideally, the
Court would simply apply Pennsylvania Supreme Court precedent that is on point. However, the
Pennsylvania Supreme Court has not yet determined whether § 910-44(b) creates an exclusive
remedy that must be exhausted by Plaintiffs before filing a case in court. Consequently, this Court
must predict how the Supreme Court would rule on the issue. Berrier v. Simplicity Mfg., Inc., 563
F.3d 38, 45-46 (3d Cir. 2009) (“In the absence of a controlling decision by the Pennsylvania