J-S36031-18

2018 PA Super 244

AMERICAN EXPRESS BANK, FSB

v.

JAMES MARTIN AND AMAZING 

MASONRY, LLC

APPEAL OF: JAMES MARTIN

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 preappeal 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