American Express Bank, FSB v. Martin, J.

J-S36031-18
2018 PA Super 244AMERICAN 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.
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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
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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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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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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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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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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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