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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - page 10 / 38

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IV.

DISCUSSION

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

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