                                                   NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT


               Nos. 09-4282 and 09-4283


        MATTHEW DRAGOTTA, Individually
      and on behalf of all others similarly situated,
                              Appellant in 09-4282

                            v.

            WEST VIEW SAVINGS BANK


      DANIELA HELKOWSKI, individually and
       on behalf of all others similarly situated,
                           Appellant in 09-4283

                            v.

           SEWICKLEY SAVINGS BANK


      Appeals from the United States District Court
         for the Western District of Pennsylvania
   (D.C. Civil Nos. 2-09-cv-00627 and 2-09-cv-00633)
     District Judge: Honorable Terrence F. McVerry


              Argued September 14, 2010

Before: RENDELL, FISHER and GARTH, Circuit Judges.

              (Filed: September 28, 2010)
R. Bruce Carlson, Esq.
Gary F. Lynch, Esq. [ARGUED]
Carlson Lynch
36 North Jefferson Street
P.O. Box. 7635
New Castle, PA 16107
  Counsel for Appellants

Dorothy A. Davis. Esq.    [ARGUED]
April M. Hincy, Esq.
Eckert, Seamans, Cherin & Mellott
600 Grant Street
44th Floor, U.S. Steel Tower
Pittsburgh, PA 15219
   Counsel for Appellees

Keith A. Clark, Esq.
Ryan P. Siney, Esq.
Shumaker Williams
3425 Simpson Ferry Road
Camp Hill, PA 17011
  Counsel for Amicus Appellee
  PA Association of Community Bankers


                               OPINION OF THE COURT


RENDELL, Circuit Judge.

                                           Background 1

       On May 21, 2009, Appellants Matthew Dragotta and Daniela Helkowski filed

separate complaints with the United States District Court for the Western District of


       1
        As we write solely for the benefit of the parties, who are familiar with the facts
and procedural history of the consolidated cases, we confine our discussion to the legal
issues presented and include only those facts necessary to our disposition.

                                              2
Pennsylvania. The complaints against the Appellees, West View Savings Bank and

Sewickley Savings Bank respectively, alleged identical offenses under the Electronic

Fund Transfers Act (“EFTA”). 15 U.S.C. § 1693 et seq. Specifically, the complaints

alleged that the Appellees failed to comply with the notice requirements of EFTA when

they imposed a transaction fee on the Appellants for the use of the Appellees’ automated

teller machines (“ATM”) and gave notice of the fee only on the screen, rather than on

both the screen and the machine, as the EFTA requires.2

       The District Court dismissed both complaints pursuant to Fed.R.Civ.P. 12(b)(6) for

failure to state a claim, concluding that the availability of the statutory good faith defense

under the EFTA to the Appellees was apparent on the face of the complaint. Both

Appellants timely appealed the dismissals to this Court, and the individual actions have

been consolidated before us.

       On appeal, the Appellants argue that the complaints they filed with the District

Court are sufficient to withstand the Rule 12(b)(6) motion. First, they urge that the good

faith defense found in 15 U.S.C. § 1693m is not available because the Appellees rely on

an interpretation of the Federal Deposit Insurance Corporation (“FDIC”), not the Federal

Reserve System. Alternatively, the Appellants argue that even if the good faith defense

of the EFTA is available to the Appellees, it is inappropriate to dismiss these cases


       2
        Appellees urge that because the two subsections setting forth the two different
notice requirements are not connected by “and”, both notices are not necessarily required.
We do not accept this argument. 15 U.S.C. § 1693b(d)(3)(B)(i), (ii).

                                              3
because the good faith is raised as an affirmative defense and creates a triable issue of

fact.

        The Appellees counter on appeal that the FDIC is duly authorized by the EFTA to

interpret and enforce the statute, and thus the good faith defense is available.

Additionally, the Appellees argue that the dismissal was warranted because the existence

of the good faith defense is apparent on the face of the complaint.

        For the reasons stated below, we will vacate the District Court’s orders granting

the Appellees’ motion to dismiss and remand for further proceedings consistent with this

opinion.

        The District Court had jurisdiction pursuant to 28 U.S.C. §1331 and 15 U.S.C. §

1693 et seq. We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291. In

reviewing the District Court’s legal determinations in granting a motion to dismiss for

failure to state a claim, our standard of review is plenary. Santiago v. GMAC Mortg.

Corp., 417 F.3d 384, 386 (3d Cir. 2005). Dismissal of a complaint under Rule 12(b)(6) is

only appropriate if it can be said that, under a plausible reading of the complaint, the

plaintiff is not entitled to relief. Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d

Cir. 2008). The presence of an affirmative defense does not automatically create a triable

issue of fact, but when an affirmative defense is “apparent on the face of a complaint”, it

may be appropriate for a court to dismiss an action pursuant to a Rule 12(b)(6) motion.

Rycoline Prods., Inc. v. C&W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).



                                              4
                                        Discussion

       The District Court based its view that the Appellees qualified for the good faith

defense under 15 U.S.C. §1693m(d)(1) on the fact that the FDIC’s Compliance

Examination Handbook (“Handbook”) permitted notice of the fee to be located either on

the ATM machine or on the screen. The withdrawals made by Dragotta and Helkowski

were made on May 18, 2009, and May 6, 2009, respectively. At that time, the Handbook

in effect provided for only one notice – either on the screen or on the ATM machine. It

was not until June 2009 that the Handbook provided for two notices – one on the screen

and one on the ATM machine. The District Court relied on the FDIC’s enforcement

power over state banks that are not members of the Federal Reserve System. The District

Court reasoned that (1) 15 U.S.C. §1693o and its accompanying regulations (“Regulation

E”), (2) the FDIC’s general authority over state non-Federal Reserve member banks

derived from 12 U.S.C. § 1811 et seq., (3) and the duties and powers of the FDIC in

pursuing its mission, supported its view that the Appellees’ reliance on the interpretation

of the statute by the FDIC fell under the protections of the 15 U.S.C. §1693m(d)(1) good

faith provision.

       The good faith provision of EFTA, 15 U.S.C. § 1693m(d) states:

       (d) Good faith compliance with rule, regulation, or interpretation of Board
       or approval of duly authorized official or employee of Federal Reserve
       System


                                             5
        No provision of this section or section 1693n of this title imposing any
        liability shall apply to–

            (1) any act done or omitted in good faith in conformity with any
            rule, regulation, or interpretation thereof by the Board or in
            conformity with any interpretation or approval by an official or
            employee of the Federal Reserve System duly authorized by the
            Board to issue such interpretations or approvals under such
            procedures as the Board may prescribe therefor[.]


        The District Court did not address whether or how the Handbook “fits” within the

statute. We think the District Court should address this issue in the first instance. We

will remand to give the District Court the opportunity to address this issue.

        If the District Court determines that the Appellees could avail themselves of the

good faith defense on this basis, we will, nonetheless, require that it enter an order

denying dismissal because, while it may be appropriate for a court to dismiss a complaint

for a failure to state a claim when an affirmative defense is “apparent on the face of a

complaint,” that is not the case here. Rycoline Prods., Inc., 109 F.3d at 886. Whether or

not the banks did act “in good faith”, as the statute requires, raises factual questions

which cannot be resolved based solely on the pleadings currently before the Court.




                                         Conclusion

       For the reasons set forth above, we will VACATE the Order of the United States

Court for the Western District of Pennsylvania and REMAND for further proceedings

consistent with this opinion.


                                              6
