Wilmer, D. v. AT&T Inc.

• Court: Superior Court of Pennsylvania
• Decided: February 20, 2026
• Docket: 1405 EDA 2025
• Status: Unpublished
• Author: Bowes

Opinion

J-S41015-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

DONTISSA WILMER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : AT&T, INC. : No. 1405 EDA 2025

Appeal from the Order Entered May 23, 2025 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 250302342

BEFORE: BOWES, J., BECK, J., and FORD ELLIOTT, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED FEBRUARY 20, 2026

Dontissa Wilmer (“Ms. Wilmer”) appeals pro se from the order sustaining

the preliminary objections (“POs”) filed by AT&T, Inc. (“AT&T”), and

dismissing her complaint with prejudice. We affirm in part, vacate in part,

and remand with instructions.

This matter arose from an action filed in the municipal court of

Philadelphia, wherein Ms. Wilmer alleged that AT&T illegally tampered with

her phone. Upon a decision in AT&T’s favor, Ms. Wilmer appealed to the Court

of Common Pleas of Philadelphia County. Her complaint alleged the following

facts. On November 28, 2023, Ms. Wilmer began to discover “unauthorized

activity on her AT&T account, including the addition of unknown devices and

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* Retired Senior Judge assigned to the Superior Court. J-S41015-25

phone lines, unauthorized access to her account, and excessive data usage

not attributable to [her] or her authorized users.” Complaint, 4/4/25, at ¶ 6.

She contended that AT&T “illegally tampered with her account, resulting in the

compromise of her personal information, phone lines, and associated devices.”

Id. at ¶ 7. Such activity included, inter alia, “[t]he presence of an unknown

gamer . . . using [her] data[;]” text messages and calls that Ms. Wilmer did

not initiate but appeared on her phone logs; “[c]orrespondence with [an] AT&T

Office of the President Escalation and Process Improvement employee, whose

email attachments and voicemail caused [her] phone to malfunction[;]”

outgoing calls being “diverted” from her phone; and the deactivation of a “turn

on this line” feature, even though her account was in good standing, resulting

in the inability to make phone calls. Id. at ¶ 8.

Ms. Wilmer claimed breach of contract, negligence, and violation of the

Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).

Her breach of contract action asserted that she and AT&T “entered into a

contractual relationship . . . for telecommunications services, which included

an implied duty to provide secure and reliable service” and that “AT&T

breached this contract by failing to safeguard [her] account[.]” Id. at ¶¶ 12-

13. As to the negligence claim, Ms. Wilmer stated that “AT&T owed [her] a

duty of care to protect her account and personal information from

unauthorized access and tampering . . . through AT&T’s service obligations”

and it “breached this duty by negligently managing [her] account[,] . . .

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allowing unauthorized devices to be added[,] and failing to implement

adequate security measures.” Id. at ¶¶ 16-17. Finally, she averred that AT&T

violated the UTPCPL because its “actions constitute[d] unfair or deceptive acts

or practices . . ., including but not limited to failing to provide secure services

and misrepresenting the security of [her] account.” Id. at ¶ 20. With respect

to damages, Ms. Wilmer did not set forth a demand for a particular monetary

amount. Instead, she asserted that she was unable to make or receive calls

and text messages and suffered financial harm, emotional distress, invasion

of privacy, and the loss of communication, photos, files, and documents. Id.

at ¶ 10.

AT&T filed POs. Therein, it averred that the complaint failed to comply

with multiple Rules of Civil Procedure, including: omitting the purported

written or oral contract as required by Pa.R.Civ.P. 1019(h)-(i); neglecting to

plead a cause of action and damages thereto in separate counts in accordance

with Pa.R.Civ.P. 1020(a); and failing to include a signed verification pursuant

to Pa.R.Civ.P. 1024. Although Ms. Wilmer did not attach any contract to her

complaint, AT&T appended a Consumer Service Agreement to its POs, which

it stated was the only written agreement between the parties. Additionally,

AT&T submitted POs in the nature of a demurrer as to each claim in

accordance with Pa.R.Civ.P. 1028(a)(4). It asserted that Ms. Wilmer merely

recited the elements of each claim without setting forth adequate factual bases

in support. Ms. Wilmer did not amend her complaint or respond.

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The court issued an order sustaining each of AT&T’s POs and dismissing

the complaint with prejudice. This timely appeal followed, and the court and

Ms. Wilmer complied with the requirements of Pa.R.A.P. 1925. She raises the

following questions for our consideration:

1. Did the trial court err in sustaining AT&T’s [POs] under Pa.R.Civ.P. 1020(a), 1024, 1019(h)-(i), and 1028(a)([4]), where the complaint sufficiently pleaded causes of action for breach of contract, negligence, and violation of the UTPCPL, and any procedural defects were curable?

2. Did the tr[ia]l court err in sustaining [POs] and dismissing the complaint with prejudice based on formal and technical defects, including the complaint’s formatting and lack of verification, where such defects are generally deemed curable by amendment under Pennsylvania law, consistent with the principle of resolution on the merits?

3. Did the trial court err in sustaining the demurrer where the factual allegations in the complaint, regarding AT&T[’s] alleged failure to provide secure services and the resulting unauthorized account access for [Ms. Wilmer], were legally sufficient to establish viable claims for breach of contract, negligence, and violations of the [UTPCPL]?

4. Did the tr[ia]l court err in sustaining [POs] dismissing the complaint with prejudice based on formal and technical defects, including [the] complaint’s formatting and lack of verification, where such defects are generally deemed curable by amendment under Pennsylvania law, consistent with the principle favoring resolution on the merits?

Ms. Wilmer’s brief at 2-3 (unnecessary capitalization omitted).

Since the trial court’s Rule 1925(a) opinion focused upon the legal

sufficiency of the complaint, we tailor our review to the following principles:

Our standard of review in an appeal arising from an order sustaining preliminary objections in the nature of a demurrer is de novo, and our scope of review is plenary. We recognize a

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demurrer is a preliminary objection to the legal sufficiency of a pleading and raises questions of law; we must therefore accept as true all well-pleaded, material, and relevant facts alleged in the complaint and every inference that is fairly deducible from those facts. A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted.

Laret v. Wilson, 279 A.3d 56, 58 (Pa.Super. 2022) (cleaned up). However,

“a court need not accept as true conclusions of law, unwarranted inferences,

or expressions of opinion.” Taylor v. Pennsylvania State Corrections

Officers Assn., 291 A.3d 1204, 1209 (Pa.Super. 2023) (cleaned up).

As to Ms. Wilmer’s ability to amend her complaint:

Even where a trial court sustains preliminary objections on their merits, it is generally an abuse of discretion to dismiss a complaint without leave to amend. There may, of course, be cases where it is clear that amendment is impossible and where to extend leave to amend would be futile. However, the right to amend should not be withheld where there is some reasonable possibility that amendment can be accomplished successfully. In the event a demurrer is sustained because a complaint is defective in stating a cause of action, if it is evident that the pleading can be cured by amendment, a court may not enter a final judgment, but must give the pleader an opportunity to file an amended pleading.

In re Estate of Luongo, 823 A.2d 942, 969 (Pa.Super. 2003) (cleaned up).

Furthermore, “[t]he right to amend should be liberally granted, absent an

error of law or resulting prejudice to an adverse party.” Kuwait & Gulf Link

Transport Co. v. Doe, 216 A.3d 1074, 1093 (Pa.Super. 2019).

To support a breach of contract claim, “a plaintiff must plead: 1) the

existence of a contract, including its essential terms; 2) a breach of a duty

imposed by the contract; and 3) resultant damage.” Presbyterian Med. Ctr.

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v. Budd, 832 A.2d 1066, 1070 (Pa.Super. 2003) (citation omitted). To state

a prima facie case of negligence, a plaintiff must assert that “there is a breach

of a legally recognized duty or obligation that is causally connected to the

damages suffered by the complainant[.]” Jordan v. Pennsylvania State U.,

276 A.3d 751, 771 (Pa.Super. 2022) (cleaned up). Finally, the UTPCPL

requires a litigant to preliminarily aver: “1) that he or she is a purchaser or

lessee; 2) that the transaction is dealing with goods or services; 3) that the

good or service was primarily for personal, family, or household purposes; and

4) that he or she suffered damages arising from the purchase or lease of goods

or services.” Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 409

(Pa.Super. 2012) (cleaned up). To prevail on a UTPCPL claim, “a plaintiff must

then prove the following: 1) the defendant was engaged in unfair methods of

competition and unfair or deceptive acts or practices, and 2) the transaction

between plaintiff and defendant constituted trade or commerce within the

meaning of the UTPCPL.” Id. (cleaned up).

In its opinion, the trial court did not address the deviations from the

Rules of Civil Procedure, other than the failure to attach the Consumer Service

Agreement. Instead, it focused on the legal sufficiency of each cause of

action. First, the court explained that the breach of contract claim was

deficient because Ms. Wilmer neglected to “provide any information relating

to the contract itself,” and “there [were] no allegations in the [c]omplaint that

state[d] why or how any action or inaction by AT&T would constitute a

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breach.” Trial Court Opinion, 8/11/25, at 2-3. It maintained that “[t]he who,

what, where, when, and/or how connected to AT&T’s alleged tampering [wa]s

nowhere to be found in the [c]omplaint.” Id. at 3. As to the negligence

action, the court concluded that it was improperly duplicative of Ms. Wilmer’s

breach of contract claim because it did “not point to any independent duty

imposed upon AT&T that d[id] not arise from the contract itself.” Id. at 3-4.

With respect to the purported violation of the UTPCPL, the trial court held that

this claim was fatally deficient for neglecting to “plead with specificity any

material facts to support” it. Id. at 4. Finally, the court concluded, without

elaboration, that amendment would be futile because “Ms. Wilmer has failed

to assert any cognizable cause of action.” Id. at 3.

Ms. Wilmer contends in her principal brief that the trial court erred in

sustaining AT&T’s preliminary objections and dismissing her complaint with

prejudice because any defects could have been remedied upon leave to

amend. See Ms. Wilmer’s brief at 7-9, 11-12. She argues that her complaint

sufficiently alleged breach of contract, negligence, and violation of the UTPCPL

by averring that she and AT&T had an agreement whereby AT&T promised

secure cell service, and it breached that duty by failing to safeguard her

account. Id. at 10-11. For the first time, Ms. Wilmer alleges that she has

suffered $8,086.14 in damages as to the breach of contract and negligence

claims, and $1,500 for the UTPCPL action. Id. Also, Ms. Wilmer maintains

that she did not have an obligation to append the contract at issue because it

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is “AT&T’s own standard agreement, presumably in its possession, relieving

[her] of the obligation to attach it.” Id. at 9.

For its part, AT&T contends that the trial court did not abuse its

discretion in dismissing the complaint with prejudice because Ms. Wilmer

failed to state any cognizable claims. See AT&T’s brief at 6. AT&T maintains

that allowing leave to amend would be futile because Ms. Wilmer neglected to

plead specific facts to support her assertions or give an indication of facts on

which a cause of action could be based. Id. at 13. It further asserts that Ms.

Wilmer neglected to amend her complaint as a matter of right after AT&T had

filed its POs “presumably because she understood that her [c]omplaint would

still de dismissed because of the substantive and incurable defects in her

claims.” Id. at 14. See also Pa.R.Civ.P. 1028(c)(1) (“A party may file an

amended pleading as of course within twenty days after service of a copy of

preliminary objections.”).

In her reply brief, Ms. Wilmer responds that “it cannot be said that it is

clear and free from doubt that [she] would be unable to plead a viable cause

of action with more specific facts.” Ms. Wilmer’s reply brief at 4. Although

she insists that she has pled the “core elements” of each of her claims, she

explains that AT&T’s “demands for specific details regarding the who, what,

when, where, and how are matters of specificity that are properly addressed

through an amended pleading.” Id. at 6. Ms. Wilmer also states that the fact

that she did not amend her complaint or respond to the POs before the court

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dismissed the complaint “does not retroactively validate the court’s erroneous

decision to dismiss the entire case with prejudice,” and does not amount to a

“concession” that the deficiencies could not be cured. Id. at 2-3.

Upon review, we conclude that while the trial court did not err in

sustaining the POs for Ms. Wilmer’s failure to attach a contract or assert valid

causes of action, it abused its discretion by then dismissing the complaint with

prejudice. Specifically, the complaint is legally deficient because it is missing

essential elements as to each cause of action and specific facts in support.

For example, the breach of contract claim fails to include or reference the

contract at issue, which Ms. Wilmer had the obligation to attach, or its relevant

terms. See Pa.R.Civ.P. 1019(h)-(i). The complaint also fails to explain how

AT&T breached the contract, or how its activity resulted in the claimed

damages. The negligence action likewise omits a legally recognized duty and

by what means AT&T’s purported breach caused the injuries. Furthermore,

the UTPCPL claim is entirely conclusory. Unlike factual averments, this Court

does not accept as true conclusions of law. See Taylor, 291 A.3d at 1209.

Nevertheless, there is “some reasonable possibility” that each of these

deficiencies could be remedied by amendment. See In re Estate of Luongo,

823 A.2d at 969. Notably, the trial court’s Rule 1925(a) opinion neglects to

explain why amending the complaint would be futile, beyond recognizing its

current deficiencies. The fact that the complaint fails to state a valid cause of

action does not inherently mean that Ms. Wilmer could never do so through

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modification. Indeed, the concept of amendment would be meaningless if the

initial iteration of a complaint was the one and only chance to assert a claim.

With leave to amend, Ms. Wilmer could remedy the technical deficiencies of

her first complaint, attach the contract AT&T provided in its POs, and allege

more specific facts to support the elements of each cause of action. Taking

the drastic step of ousting Ms. Wilmer from court, without a proper analysis

as to why amendment would be impossible, amounts to an abuse of discretion.

Id.

Our decision has no bearing on the ultimate viability of Ms. Wilmer’s

claims. We simply observe the difficulty, on this sparse record, of concluding

that it would be futile to allow Ms. Wilmer leave to amend. Moreover, it bears

emphasizing that courts need not grant endless opportunities to cure

deficiencies. See Stempler v. Frankford Tr. Co., 529 A.2d 521, 524–25

(Pa.Super. 1987) (“The liberality in allowing amendments must not be

construed to permit amendments at any time where ample opportunity is

given to amend a pleading and a party refuses to do so but persists in its claim

that a cause of action has been set forth.”).

In sum, although the court properly sustained AT&T’s POs, it abused its

discretion when it dismissed Ms. Wilmer’s complaint with prejudice before

giving her a single opportunity to amend. Therefore, we affirm the order

insofar as it sustained AT&T’s POs and dismissed the complaint, but vacate

the portion that dismissed with prejudice. We also remand with instructions

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for the trial court, upon remittal of the certified record, to grant Ms. Wilmer

leave to amend her pleading within twenty days, or such other timeframe that

the court deems appropriate. See Pa.R.Civ.P. 1028(e) (“If the filing of an

amendment, an amended pleading or a new pleading is allowed or required,

it shall be filed within twenty days after notice of the order or within such

other time as the court shall fix.”).

Order affirmed in part and vacated in part. Case remanded with

instructions. Jurisdiction relinquished.

Date: 2/20/2026

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