On September 5, 2018, the Superior Court filed an Opinion in American Express Bank, FSB v. James Martin and Amazing Masonry, LLC, No. 181 EDA 2018 (Pa.Super. filed Sept. 5, 2018) [PDF], reaffirming the Supreme Court’s holding in Grimes v. Enterprise Leasing Co. of Philadelphia, LLC, 105 A.3d 1188, (Pa. 2014), that attorneys’ fees do not constitute “ascertainable loss” for the purposes of Pennsylvania’s Uniform Trade Practice and Consumer Protection Law (“UTPCPL”). The wrinkle in Martin was that the defendant, James Martin, was not the actual debtor, and therefore not the proper defendant, in the lawsuit.
In Martin, the plaintiff, American Express Bank FSB, filed a Complaint to recover unpaid credit card debt. Martin filed an Answer, New Matter, and Counterclaim asserting that the bank sued the wrong Martin. The bank filed preliminary objections to Martin’s pleading, which the court sustained. Martin filed a timely notice of appeal contending, among other things, that he incurred recoverable damages under the UTPCPL in the form of attorneys’ fees and costs in defending the Complaint. The Superior Court disagreed, finding that Martin failed to establish a right to relief under the UTPCPL for a number of reasons, including, notably, that attorneys’ fees “do not qualify as ‘ascertainable losses’ for purpose of the UTPCPL.” Martin, supra, at *16. The Court’s holding makes it crystal clear that merely incurring attorneys’ fees is not sufficient grounds to bring a private cause of action under the UTPCPL.
For procedural law enthusiasts, the Superior Court also held that an appeal from an order sustaining preliminary objections dismissing a defendant’s counterclaim was properly before the Court, even though the plaintiff filed a praecipe to discontinue prior to the filing of the notice of appeal. In this regard, the Court found that, by filing its discontinuance disposing of all other claims and parties, the bank effectively rendered the order dismissing Martin’s counterclaim final for the purposes of review.
