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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - page 11 / 38

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Supreme Court, a federal court applying that state’s substantive law must predict how Pennsylvania’s

highest court would decide this case.”). In doing so, this Court “must look to decisions of state

intermediate appellate courts, of federal courts interpreting the state’s law, and of other state supreme

courts that have addressed the issue,” as well as “dicta, scholarly works, and any other reliable data

tending convincingly to show how the highest court in the state would decide the issue at hand.”

Norfolk Southern Ry. Co. v. Basell USA, Inc., 512 F.3d 86, 92 (3d Cir. 2008) (quoting Koppers Co.,

Inc. v. Aetna Cas. and Sur. Co., 98 F.3d 1440, 1445 (3d Cir. 1996)); see also Jewelcor, Inc. v.

Karfunkel, 517 F.3d 672, 676 (3d Cir. 2008) (“In diversity cases, ‘where the applicable rule of

decision is the state law, it is the duty of the federal court to ascertain and apply that law, even

though it has not been expounded by the highest court of the state.’”) (internal quotations omitted).

On October 2, 2009, the Pennsylvania Superior Court decided White v. Conestoga Title Ins.

Co., which considered whether TICA provides a statutory remedy which must be exhausted prior

to filing a private cause of action in court. 982 A.2d 997 (Pa. Super. Ct. 2009). In White, the

Superior Court reversed the trial court’s dismissal of plaintiff’s claims for failure to exhaust

administrative remedies under § 910-44(b). White was decided five days before a hearing on the

Motion to Dismiss presently before this Court and essentially clears the landscape, at this point, of

§ 910-44(b) jurisprudence.3 Accordingly, this Court must give due deference to the White opinion

when forecasting the position that the Pennsylvania Supreme Court would take on this issue. See

Travelers Indem. Co. of Ill. v. DiBartolo, 131 F.3d 343, 348 (3d Cir. 1997) (finding that

“[a]pplicable decisions of the Superior Court must be accorded significant weight” when predicting

3A petition for reargument in White was denied on November 23, 2009.

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