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Lawsuit says ATM didnā??t note fee for use

February 16. 2013 4:39AM
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SCRANTON – Two people have filed a class-action lawsuit against a local beer distributor and an automatic teller machine operator, alleging the businesses violated federal law by failing to post a notice that a $2.50 fee would be charged to withdraw money.

Attorney Joseph Sucec, of Gardners, Pa., filed the suit on behalf of Gerald Riviello of Peckville and Christina Prukala, no address listed, relating to transactions they made at a Star Network ATM located at the Beer Super store on Scott Street in Wilkes-Barre. The ATM machine is owned and operated by First Data Inc., of Atlanta, Ga.

The lawsuit, filed in February, is among at least eight lawsuits raising similar claims that Riviello has filed against several banks since November 2010, according to a review of federal docket sheets filed in the U.S. District Court for the Middle District of Pennsylvania.

At least three of those lawsuits were resolved by settlements reached between Riviello and the banks. Two others were dismissed by agreement of the parties, but court documents do not indicate if the cases settled or were dismissed for other reasons. Two others remain pending.

In the latest lawsuit, Riviello and Prukala allege the ATM located at the Beer Super did not have an external notice posted advising them they would be charged a fee when they made withdrawals on Dec. 26, 2011 and Jan. 7, 2012.

The Electronic Funds Transfer Act requires ATMs to contain an external notice posted in a conspicuous place, as well as a screen that advises the consumer of any fee.

Kim Graber, a spokesperson for First Data, declined to comment on the lawsuit. Dave Shipula, owner of the Beer Super, said he was not aware the lawsuit had been filed until contacted by a reporter on Monday.

After being notified, Shipula checked the ATM and said it did contain a notice posted on the outside corner of the machine. In addition, a screen pops up notifying the customer a $2.50 fee will be charged prior to the transaction going through, Shipula said.

"I don't feel there are any hidden fees. You can't proceed unless you push a button to agree to the fee," Shipula said.

Shipula said he was frustrated to learn he's being sued given that he does not own the ATM and does not make any money off of it.

"I've never gotten a penny out of that machine," he said. "It's a convenience for my customers and nothing else."

The lawsuit seeks to certify the case as a class action that would include all persons who incurred a charge for utilizing the ATM without being advised of the fee by an external notice.

Shipula said he was frustrated to learn he's being sued given that he does not own the ATM and does not make any money off of it.

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