J-S36031-18

                                  2018 PA Super 244


    AMERICAN EXPRESS BANK, FSB                 :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                v.                             :
                                               :
    JAMES MARTIN AND AMAZING                   :
    MASONRY, LLC                               :
                                               :
    APPEAL OF: JAMES MARTIN                    :       No. 181 EDA 2018

                   Appeal from the Order November 28, 2017
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 00472 June Term, 2017


BEFORE: GANTMAN, P.J., DUBOW, J., and KUNSELMAN, J.

OPINION BY GANTMAN, P.J.:                           FILED SEPTEMBER 05, 2018

       Appellant, James Martin,1 purports to appeal from the order that

sustained the preliminary objections of Appellee, American Express Bank FSB

(“Bank”), to Appellant’s answer, new matter and counterclaim and dismissed

Appellant’s pleadings with prejudice. We affirm in part and dismiss the appeal

in part as moot.

       The trial court sets forth the relevant facts and procedural history of this

case as follows:

          On June 7, 2017, [Bank] filed a Complaint against
          [Appellant] related to unpaid credit card debt. On August
          25, 2017, [Appellant] filed an Answer along with New Matter
          and a Counterclaim to [Bank’s] Complaint wherein
          [Appellant] asserted [Bank] had filed the Complaint against
          the wrong “James Martin.” On November 2, 2017, [Bank]
          filed Preliminary Objections. On November 28, 2017, the
____________________________________________


1 James Martin and Amazing Masonry, LLC appear in the caption as the
defendants in the underlying action. We will refer to them collectively as
Appellant in this appeal.
J-S36031-18


         trial court sustained [Bank’s] Preliminary Objections and
         dismissed [Appellant’s] Answer, New Matter, and
         Counterclaim with prejudice.

         On December 1, 2017, [Bank] filed a Praecipe to
         Discontinue the case without prejudice, and the
         Prothonotary discontinued and disposed of the case on the
         same date. On December 26, 2017, [Appellant] filed a
         Notice of Appeal from the trial court’s November 28, 2017
         order.

(Trial Court Opinion, filed January 18, 2018, at 1). The court did not order a

concise statement of errors complained of on appeal, per Pa.R.A.P. 1925(b),

and Appellant filed none.

      Appellant raises the following issues:

         WHETHER THIS COURT HAS AUTHORITY TO RENDER A
         DECISION BECAUSE THE MATTER IS NOT MOOT AS A
         RESULT OF…APPELLEE’S PRAECIPE TO DISCONTINUE[?]

         WHETHER THE TRIAL COURT OBTAINED PERSONAL
         JURISDICTION  [OVER]…APPELLANT   AFTER…APPELLEE
         SERVED HIM WITH COURT PROCESS[?]

         WHETHER…APPELLANT IS A DEFENDANT WHO MAY FILE A
         COUNTERCLAIM UNDER CONSUMER PROTECTION LAWS[?]

         WHETHER…APPELLANT’S   COUNTERCLAIM, ASSERTING
         VIOLATION OF THE CONSUMER PROTECTION LAWS,
         SUFFCIENTLY PLEADS DAMAGES[?]

         WHETHER IT WAS ABUSE OF DISCRETION FOR THE TRIAL
         COURT TO DISMISS THE PLEADING WITH PREJUDICE AND
         WITHOUT LEAVE TO AMEND[?]

(Appellant’s Brief at 3-4).

      Appellant initially argues his appeal falls within two exceptions to the

mootness doctrine: (1) Appellant suffered a “detriment” due to the trial court’s

dismissal of his counterclaim with prejudice, where the settlement of his claim

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was likely; and (2) the order sustaining the preliminary objections to

Appellant’s counterclaim will evade appellate review by virtue of the Bank’s

praecipe to discontinue, which makes the trial court the final authority on the

counterclaim that Appellant is helpless to avoid. Appellant otherwise contends

the order sustaining the preliminary objections to his counterclaim is subject

to appellate review and a decision in his favor would allow his counterclaim to

proceed and not simply be advisory. We concur to some degree.

      As a general rule, if a plaintiff discontinues its action against all

defendants before an appeal is filed, then the case is rendered moot, because

there is no actual case or controversy pending before the trial court or before

this Court. Motley Crew LLC v. Bonner Chevrolet Co., Inc., 93 A.3d 474

(Pa.Super. 2014), appeal denied, 628 Pa. 641, 104 A.3d 526 (2014) (rejecting

claim that discontinuance renders order “final” for purposes of appeal). “The

general effect of a discontinuance is to terminate the action without an

adjudication of the merits and to place the plaintiff in the same position as

if the action had never been instituted.” Id. at 476 (emphasis added). Absent

a pending action or controversy, the court has no matter over which to

exercise jurisdiction; the discontinuance “operates to nullify an action.” Id.

A discontinuance of an action under these circumstances is not equivalent to

the entry of a final order from which an appeal can be taken. Id. See also

Generation Mortgage Company v. Nguyen, 138 A.3d 646 (Pa.Super.

2016) (holding voluntary discontinuance of action renders defenses to action

moot).   Compare Estate of Paterno v. National Collegiate Athletic

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Association (NCAA), 168 A.3d 187 (Pa.Super. 2017) (holding once appeal

is filed, however, trial court has no authority to accept or grant

discontinuance of action until all appeals pending in this Court have also been

discontinued) (emphasis added). Likewise, an issue before a court is moot if

the court is unable to enter an order that has any legal force or effect.

Deutsche Bank Nat. Co. v. Butler, 868 A.2d 574, 577 (Pa.Super. 2005).

      Nevertheless, the dismissal of Appellant’s counterclaim falls under Rule

232 of the Pennsylvania Rules of Civil Procedure, which provides:

         Rule 232.     Counterclaim.     Termination of Plaintiff’s
         Action

         (a) A discontinuance or nonsuit shall not affect the right
         of the defendant to proceed with a counterclaim theretofore
         filed.

         (b) A counterclaim may not be terminated, in whole or in
         part, by the defendant, except by discontinuance or
         voluntary nonsuit, and subject to conditions similar to those
         applicable to the plaintiff.

Pa.R.C.P. 232. An order sustaining preliminary objections and dismissing a

defendant’s counterclaim becomes a final appealable order when the entry of

plaintiff’s discontinuance before an appeal is filed disposes of all other claims

and parties. See generally Pa.R.A.P. 341.

      Instantly, the trial court sustained Bank’s preliminary objections to

Appellant’s answer with new matter and counterclaim on November 28, 2017.

Bank filed its praecipe to discontinue its contract action against all parties on

December 1, 2017, and the Prothonotary discontinued and disposed of Bank’s


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case that same day. Appellant timely filed a notice of appeal on December

26, 2017, purporting to challenge the trial court’s November 28, 2017 order

sustaining Bank’s preliminary objections to Appellant’s pleadings. Bank’s pre-

appeal discontinuance of its complaint rendered moot Appellant’s answer and

defenses/new matter.      See Motley Crew LLC, supra; Nguyen, supra;

Butler, supra.   Therefore, any appellate ruling on the merits of the trial

court’s decision regarding Bank’s preliminary objections to Appellant’s answer

and new matter would have no force or effect because Bank chose to

discontinue its action against Appellant.    The effect of Bank’s voluntary

discontinuance rendered Appellant’s defenses to the action moot and placed

Bank in the same position as if the action had not ever been instituted. See

id. Accordingly, we dismiss as moot Appellant’s appeal to the extent he tries

to challenge the order sustaining Bank’s preliminary objections to his answer

and new matter to Bank’s complaint, which Bank discontinued before

Appellant’s appeal. Id.

      With respect to the dismissal of Appellant’s counterclaim, however, Rule

232 makes clear Bank’s discontinuance of its action against Appellant did not

affect Appellant’s right to proceed with an appeal concerning the dismissal of

his counterclaim. See Pa.R.C.P. 232. When Bank filed its discontinuance, it

effectively disposed of all other claims and parties and ended the case, so

Appellant could appeal the order dismissing his counterclaim, which became

final for purposes of review. See generally Pa.R.A.P. 341. Therefore, the


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appeal from the order dismissing Appellant’s counterclaim is properly before

us for review.

        In his remaining issues, Appellant argues Bank sued the wrong party so

he was not the “proper” or “true” defendant. Appellant asserts as long as he

was not the proper defendant in Bank’s suit against a debtor, the court had

no personal jurisdiction over him and no authority to act on Bank’s preliminary

objections to Appellant’s pleadings.2 Appellant further complains he properly

asserted in his counterclaim all of the elements for a cause of action under the

Pennsylvania Unfair Trade Practice and Consumer Protection Law (“UTPCPL”)3,

which allows for an award of counsel fees incurred as a result of defending



____________________________________________


2 We reject outright Appellant’s convoluted “personal jurisdiction” argument,
because the general rule states: “The existence of any of the following
relationships between a person and this Commonwealth shall constitute a
sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to
exercise general personal jurisdiction over such person, or his personal
representative in the case of an individual, and to enable such tribunals to
render personal orders against such person or representative: (1)
Individuals.−(i) Presence in this Commonwealth at the time when process is
served. (ii) Domicile in this Commonwealth at the time when process is
served. (iii) Consent, to the extent authorized by the consent.” 42 Pa.C.S.A.
§ 5301(a)(1). Appellant admitted he resides and domiciles in Pennsylvania,
he did not challenge personal jurisdiction in appropriate pleadings, and he
invoked the court’s jurisdiction by acting on the merits of the case. See
Pa.R.C.P. 1028 and 1032; Hoeke v. Mercy Hospital of Pittsburgh, 386
A.2d 71, 74 (Pa.Super. 1978). See also Schmitt v. Seaspray-Sharkline,
Inc., 531 A.2d 801, 803 (Pa.Super. 1987) (stating law requires more than
mere objection to personal jurisdiction). Under these circumstances, the court
had personal jurisdiction over Appellant by virtue of his active participation on
the merits of the case, even if the Bank sued the wrong person.

3   See 73 P.S. § 201-1 et seq.

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J-S36031-18


Bank’s claim. Appellant contends his attorney fees to defend Bank’s complaint

also qualify as the damages element of his counterclaim, he did not have to

assert a breakdown of the fees at the pleading stage, and his failure to do so

did not cause his counterclaim to preclude recovery with certainty. Appellant

concludes this Court must reverse the trial court’s decision to dismiss his

counterclaim. We disagree.

      The relevant scope and standard of review in examining a challenge to

an order sustaining preliminary objections in the nature of a demurrer are as

follows:

             Our     review    of     a    trial   court’s    [order]
             sustaining…preliminary objections in the nature of a
             demurrer is plenary. Such preliminary objections
             should be sustained only if, assuming the averments
             of the complaint to be true, the plaintiff has failed to
             assert a legally cognizable cause of action. We will
             reverse a trial court’s decision to sustain preliminary
             objections only if the trial court has committed an
             error of law or an abuse of discretion.

             All material facts set forth in the complaint as well as
             all inferences reasonably [deducible] therefrom are
             admitted as true for the purpose of this review. The
             question presented by the demurrer is whether, on
             the facts averred, the law says with certainty that no
             recovery is possible. Where a doubt exists as to
             whether a demurrer should be sustained, this doubt
             should be resolved in favor of overruling it.

           Regarding a demurrer, this Court has held:

             A demurrer is an assertion that a complaint does not
             set forth a cause of action or a claim on which relief
             can be granted. A demurrer by a defendant admits all
             relevant facts sufficiently pleaded in the complaint and
             all inferences fairly deducible therefrom, but not

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J-S36031-18


            conclusions of law or unjustified inferences. In ruling
            on a demurrer, the court may consider only such
            matters as arise out of the complaint itself; it cannot
            supply a fact missing in the complaint.

         Where the complaint fails to set forth a valid cause of action,
         a preliminary objection in the nature of a demurrer is
         properly sustained.

Lerner v. Lerner, 954 A.2d 1229, 1234-35 (Pa.Super. 2008) (emphasis in

original) (internal citations omitted). When analyzing a demurrer, the court

“need not consider the pleader’s conclusions of law, unwarranted inferences

from facts, opinions, or argumentative allegations.” Wiernik v. PHH U.S.

Mortg. Corp., 736 A.2d 616, 619 (Pa.Super. 1999), appeal denied, 561 Pa.

700, 751 A.2d 193 (2000). To determine if the trial court properly sustained

preliminary objections, this Court examines the averments in the complaint

and the documents attached to the complaint to evaluate the adequacy of the

facts averred and to assess the legal sufficiency of the complaint. Clemleddy

Const., Inc. v. Yorston, 810 A.2d 693, 696 (Pa.Super. 2002), appeal denied,

573 Pa. 682, 823 A.2d 143 (2003). “We will reverse a trial court’s decision to

sustain preliminary objections only if the trial court has committed an error of

law or an abuse of discretion.” Soto v. Nabisco, Inc., 32 A.3d 787, 790

(Pa.Super. 2011). “Where the complaint fails to set forth a valid cause of

action, a preliminary objection in the nature of a demurrer is properly

sustained.” Id.

      Rule 1028 of the Pennsylvania Rules of Civil Procedure provides, in

relevant part:

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J-S36031-18


         Rule 1028. Preliminary Objections

         (a) Preliminary objections may be filed by any party to any
         pleading and are limited to the following grounds:

            (1) lack of jurisdiction over the subject matter of the
            action or the person of the defendant, improper venue
            or improper form or service of a writ of summons or a
            complaint;

                                      *        *       *

            (2) failure of a pleading to conform to law or rule of court
            or inclusion of scandalous or impertinent matter;

            (3) insufficient specificity in a pleading;

            (4) legal insufficiency of a pleading (demurrer);

                                  *        *       *

Pa.R.C.P. 1028(a)(2)-(4) (emphasis added). A trial court may also sustain

preliminary objections in the nature of a demurrer if it “appears from the face

of the complaint that recovery upon the facts alleged is not permitted as a

matter of law.”   Kelly v. Kelly, 887 A.2d 788, 790-91 (Pa.Super. 2005),

appeal denied, 588 Pa. 770, 905 A.2d 500 (2006).

      To promote judicial economy and prompt resolution of claims, Pa.R.C.P.

1031(a) in relevant part provides:

         Rule 1031. Counterclaim

         a) The defendant may set forth in the answer under the
         heading “Counterclaim” any cause of action cognizable in a
         civil action which the defendant has against the plaintiff at
         the time of filing the answer.

                                  *        *       *


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Pa.R.C.P. 1031(a). “The UTPCPL is Pennsylvania’s consumer protection law

and seeks to prevent ‘[u]nfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce….’ The purpose of

the UTPCPL is to protect the public from unfair or deceptive business practices.

Our Supreme Court has stated courts should liberally construe the UTPCPL in

order to effect the legislative goal of consumer protection.” DeArmitt v. New

York Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013).

           The UTPCPL provides a private right of action for anyone
           who “suffers any ascertainable loss of money or property”
           as a result of an unlawful method, act or practice.” Upon a
           finding of liability, the court has the discretion to award “up
           to three times the actual damages sustained” and provide
           any additional relief the court deems proper. Section 201–
           2(4) lists twenty enumerated practices which constitute
           actionable “unfair methods of competition” or “unfair or
           deceptive acts or practices.” The UTPCPL also contains a
           catchall provision at 73 P.S. § 201–2(4)(xxi). The pre–1996
           catchall provision prohibited “fraudulent conduct” that
           created a likelihood of confusion or misunderstanding. In
           1996, the General Assembly amended the UTPCPL and
           revised Section 201–2(4)(xxi) to add “deceptive conduct” as
           a prohibited practice.        The current catchall provision
           proscribes “fraudulent or deceptive conduct which creates
           a likelihood of confusion or of misunderstanding.”

Id.   at   591-92    (quoting   Bennett    v.   A.T.   Masterpiece    Homes   at

Broadsprings, LLC, 40 A.3d 145, 151-52 (Pa.Super. 2012) (internal citations

omitted)). See also Agliori v. Metropolitan Life Ins. Co., 879 A.2d 315,

318 (Pa.Super. 2005) (stating purpose of UTPCPL is to protect consumer

public and eradicate unfair or deceptive business practices; foundation of

UTPCPL is fraud prevention, and its policy is to place consumer and seller of



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goods and services on more equal terms; courts should construe its provisions

liberally to serve remedial goals of statute). Nevertheless, to establish a claim

under the UTPCPL, a plaintiff must still plead and “prove justifiable reliance

and causation, because the legislature never intended [the] statutory

language directed against consumer fraud to do away with the traditional

common law elements of reliance and causation.” DeArmitt, supra at 592.

      Significantly, with respect to the “ascertainable loss” element of a valid

UTPCPL claim, our Supreme Court held: “[T]he mere acquisition of counsel

would not suffice to satisfy the ‘ascertainable loss’ requirement.” Grimes v.

Enterprise Leasing Co. of Philadelphia, LLC, 629 Pa. 457, 465, 105 A.3d

1188, 1193 (2014). The Supreme Court explained:

         Here, the operative statute initially provides for damages
         relative to “ascertainable loss[es],” then separately provides
         for awards of “costs and reasonable attorney fees.” 73 P.S.
         § 201–9.2(a). This express authorization of attorney fees
         awards is “in addition to other relief provided in this
         section,” which “other relief” encompasses the damages
         made available as compensation for ascertainable losses.
         The fees are derivative and consequential. Section 9.2(a)’s
         plain language makes it readily apparent that the General
         Assembly deemed ascertainable losses and attorneys’ fees
         to be distinct items for redress. [The] construction of the
         “ascertainable loss” element as including attorney fees is
         unreasonable, and contradicted by the plain language of the
         statute. Moreover, [that] reading would allow a plaintiff to
         manufacture the “ascertainable loss” required to bring a
         private UTPCPL claim simply by obtaining counsel to bring a
         private UTPCPL claim; we presume that such an
         unreasonable result was not intended by the General
         Assembly. Because [that] argument is not premised upon
         a reasonable interpretation of the statutory language,
         neither [a] resort to the asserted purpose for which the Act
         allows costs and attorneys’ fees, nor the Superior Court’s

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J-S36031-18


         reliance on the “deterrence value” of the UTPCPL, is
         persuasive. In either case, we would still be left with the
         untenable result that a plaintiff could incur an “ascertainable
         loss” simply by hiring counsel.

Id. at 466, 105 A.3d at 1193-94. “The UTPCPL’s private right of action is not

a general-purpose enforcement provision.” Id. “Only those who can meet

the requirements of the UTPCPL’s private cause of action may bring a personal

action,” and the mere acquisition of counsel, absent more, does not meet the

“ascertainable loss” element of the UTPCPL. Id. The Court noted: “[T]here

is some force in the observations of other jurisdictions addressing similar

provisions in state consumer protection statutes, that if attorneys’ fees were

to be considered in the calculation of ‘ascertainable loss,’ [then] the explicit

provision for the award of attorneys’ fees would be superfluous.” Id. at 467,

105 A.3d at 1194 (citing cases).

      Instantly, Appellant answered Bank’s complaint with new matter and a

counterclaim for    relief under   the   UTPCPL.      Appellant’s counterclaim

incorporated his answer and new matter. In his answer, Appellant denied he

was jointly and individually liable for the account balance claimed due;

Appellant denied that Bank had issued an account for credit services to

Appellant, and he denied accepting the terms of a credit member agreement

or using the credit or failing to pay a balance due or owe any balance. (See

Appellant’s Answer to Bank’s Complaint, filed 8/25/17, at ¶¶ 2 through 6.)

Appellant’s new matter and counterclaim state as follows:

                                NEW MATTER

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       7. Defendant Martin reasserts paragraphs 1-6 as if fully
       set forth herein.

       8. Defendant Martin does not have, nor has ever had, a
       credit card with American Express, and is not familiar with
       the business and now co-defendant, Amazing Masonry, LLC.

       9. Defendant Martin received no account statements from
       Plaintiff. The statement attached as an exhibit to Plaintiff’s
       complaint was sent to a different James Martin (hereinafter,
       the “actual debtor”) and Amazing Masonry LLC at a
       residence, 2549 E. Birch St., Philadelphia, PA 19134.

       10. Kimberly Martin, who is unknown to Defendant Martin,
       owns 2549 E. Birch St., Philadelphia, PA 19134.

       11. A docket search shows:

            a. The actual debtor and RJM Martin Cement
       Contractors were parties in Kurzyna v. Edwards, et al.,
       Docket No. 991100826, and the actual debtor was
       personally served at 2549 E. Birch St., Philadelphia, PA
       19134; and

              b. Amazing Masonry LLC was a party in DeFilippis, et
       al. v. Amazing Masonry LLC, Docket No. SC-16-01-21-5265,
       and a “Kim” accepted service twice for Amazing Masonry
       LLC as its agent at 2549 E. Birch St., Philadelphia, PA 19134.

       12. Defendant Martin has owned and resided at 445 Fern
       St., Philadelphia, PA 19120 since 1993, and is employed as
       an accounting manager with a charity agency.

       13. Plaintiff’s account file does or should identify the debtor
       who owns the American Express account and is affiliated
       with Amazing Masonry, LLC. Plaintiff had a duty to review
       identifiers in the file to ensure the correct Defendant was
       sued.

       14. As a result of Plaintiff’s failure to review or properly
       maintain the file and its misidentification, Defendant Martin
       has incurred expenses related to defending this action.


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              WHEREFORE, Defendant James Martin respectfully
       requests that this Honorable Court enter judgment in his
       favor and against Plaintiff, and for such other and further
       relief as the Court shall deem just and proper.

                           COUNTERCLAIM
                               COUNT I
              VIOLATION OF PA CONSUMER PROTECTION LAW

       15. Defendant Martin reasserts paragraphs 1-14 as if fully
       set forth herein.

       16. At all times relevant hereto, Plaintiff was engaged in
       trade or commerce as defined by Section 2(3) of the CPL,
       73 P.S. §201-2(3).

       17. Pursuant to Section 9.2 of the CPL, Plaintiff’s actions
       violate Section 3 and 2(4) of the CPL, 73 P.S. §§201-3 and
       201-2(4), as follows:

             (ii)    causing   likelihood   of confusion or  of
       misunderstanding as to the source, sponsorship, approval,
       or certification of goods or services;

             (v)    representing that goods or services have
       sponsorship, approval, characteristics, ingredients, uses,
       benefits, or quantities that they do not have or that a person
       has a sponsorship, approval, status, affiliation, or
       connection that he does not have; and

            (xxi) engaging in any other fraudulent or deceptive
       conduct which creates a likelihood of confusion or
       misunderstanding.

       18. Plaintiff caused a likelihood of confusion and
       misunderstanding regarding the identity of the actual debtor
       who was approved for and used credit services.

       19. Plaintiff misrepresented that Defendant Martin was
       approved for credit, entered into an agreement containing
       terms and conditions of services, used the credit, and
       defaulted on the agreement when failing to pay the account
       balance.


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         20. Plaintiff misrepresented that Defendant Martin owes
         Plaintiff $27,544.86, and engaged in other fraudulent
         and/or deceptive conduct in pursuing the collection of that
         debt.

         21. As a result of Plaintiff’s violations of the CPL, Defendant
         Martin has experienced aggravation and incurred expenses
         related to defending this action, including attorney fees and
         costs.

               WHEREFORE, Defendant Martin, pursuant to the CPL,
         prays for judgment against Plaintiff in the amount of
         $10,500.00, representing three times his actual damages,
         plus attorney fees and costs and such other relief as the
         Court deems just and proper.

(Id. at ¶¶ 7 through 21).     Among other grounds, Bank raised preliminary

objections, in the nature of a demurrer to Appellant’s UTPCPL counterclaim,

for legal insufficiency of the purported statutory violations and the

ascertainable losses. Consistent with his own pleadings, Appellant is not even

a “consumer” of Bank’s services. Although Appellant might be a “consumer”

in the most generic sense, by his own admissions he is not a UTPCPL

“consumer” with respect to Bank because he obtained no goods or services

from Bank and is not the consumer-debtor identified in Bank’s records or in

its complaint. Therefore, under these circumstances, Appellant cannot invoke

the UTPCPL remedy. Further, as pled, Appellant’s purported UTPCPL claim

lacks several other elements, including an averment of his “justifiable reliance”

on any representation by Bank that caused Appellant an “ascertainable loss.”

Instead, Appellant denied he personally owed the debt alleged in Bank’s

complaint, claimed he was the wrong person sued, and did not assert that


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Bank had somehow obtained any payment from him.

      Importantly, Appellant’s “aggravation” and “incurred expenses related

to defending Bank’s action, including attorney fees and costs,” do not qualify

as “ascertainable losses” for purposes of the UTPCPL. See Grimes, supra

(stating in several alternative ways that plaintiff cannot manufacture

“ascertainable loss” for purposes of UTPCPL simply by hiring counsel and

incurring litigation costs).   Thus, the trial court properly sustained Bank’s

preliminary objections to Appellant’s UTPCPL counterclaim, without leave to

amend, because recovery under the statute was unavailable to Appellant as a

matter of law.    See Kelly, supra.      See also Grimes, supra; Bennett,

supra; Lerner, supra; Pa.R.C.P. 1028(a)(4). Accordingly, we affirm in part

and dismiss the appeal in part as moot.

      Order affirmed in part; appeal dismissed in part as moot.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/5/18




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