200 A.3d 87
Pa. Super. Ct.2018Background
- American Express Bank filed a collection complaint (June 7, 2017) seeking unpaid credit-card debt against James Martin and Amazing Masonry, LLC.
- Martin filed an answer, new matter, and a UTPCPL counterclaim (Aug. 25, 2017), alleging Bank sued the wrong James Martin and seeking treble damages and fees.
- Bank filed preliminary objections (Nov. 2, 2017); the trial court sustained them and dismissed Martin’s answer, new matter, and counterclaim with prejudice (Nov. 28, 2017).
- Bank then filed a praecipe to discontinue its complaint (Dec. 1, 2017); the Prothonotary discontinued the action the same day.
- Martin appealed (Dec. 26, 2017), challenging the sustainment of objections to his answer/new matter and dismissal of his UTPCPL counterclaim.
- The Superior Court held the appeal challenging defenses/new matter moot due to Bank’s discontinuance but allowed review of the dismissed counterclaim under Pa.R.C.P. 232.
Issues
| Issue | Bank's Argument | Martin's Argument | Held |
|---|---|---|---|
| Whether Bank’s praecipe to discontinue moots Martin’s appeal | Discontinuance nullifies the action and renders defenses/new matter moot | Discontinuance should not prevent appellate review; dismissal with prejudice caused detriment | Dismissal of answer/new matter is moot; however dismissal of counterclaim is appealable under Pa.R.C.P. 232 |
| Whether the trial court had personal jurisdiction over Martin | Court had jurisdiction; Martin participated on the merits and resides in PA | Bank sued the wrong James Martin, so court lacked personal jurisdiction | Court had personal jurisdiction (Martin domiciled in PA and acted on merits) |
| Whether Martin stated a UTPCPL claim (legal sufficiency; ascertainable loss) | Counterclaim legally insufficient: Martin not the consumer-debtor, no justifiable reliance or ascertainable loss | Martin alleged confusion, aggravation, and attorneys’ fees as damages; argued fees need not be itemized at pleading stage | UTPCPL claim fails as a matter of law: Martin not a consumer-debtor and attorney fees/aggravation do not satisfy ascertainable loss requirement |
| Whether dismissal with prejudice and without leave to amend was an abuse of discretion | Dismissal proper because amendment could not cure lack of statutory entitlement and ascertainable loss | Dismissal with prejudice was improper; leave to amend should have been granted | Dismissal without leave to amend affirmed: recovery unavailable as a matter of law, so leave to amend would be futile |
Key Cases Cited
- Motley Crew LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474 (Pa. Super. 2014) (voluntary discontinuance renders order moot when plaintiff discontinues before appeal)
- Generation Mortgage Co. v. Nguyen, 138 A.3d 646 (Pa. Super. 2016) (voluntary discontinuance renders defenses moot)
- Estate of Paterno v. NCAA, 168 A.3d 187 (Pa. Super. 2017) (once an appeal is filed, trial court lacks authority to accept discontinuance affecting pending appeal)
- Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574 (Pa. Super. 2005) (an issue is moot if the court cannot enter an order with legal force)
- Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 105 A.3d 1188 (Pa. 2014) (attorney fees and litigation expenses alone do not constitute an "ascertainable loss" under the UTPCPL)
- Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008) (standard of review for demurrer/preliminary objections)