J-A11016-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALLEN FEINGOLD AND RUTH WALLACE IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
STATE FARM MUTUAL INSURANCE CO.,
DAVID ROHDE, LAW OFFICES OF DAVID
ROHDE, MARC RICKLES, JOSEPH
HANKINS, AND BRITT, HANKINS &
MOUGHAN
Appellees No. 1573 EDA 2015
Appeal from the Order Entered May 20, 2015
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 02058 January Term, 2015
BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED JUNE 24, 2016
Appellants, Allen Feingold and Ruth Wallace, appeal from the May 20,
2015 order, sustaining the preliminary objections of Appellees, State Farm
Mutual Insurance Company (State Farm), David Rohde, Law Offices of David
Rohde, Marc Rickles, Joseph Hankins, and Britt, Hankins & Moughan, to
Appellants’ complaint and dismissing the complaint with prejudice. After
careful review, we dismiss Wallace’s appeal and affirm.
The trial court summarized the facts and procedural history of this
case as follows.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-A11016-16
In January, 2015, [Appellants] filed a civil
action complaint with the Philadelphia Court of
Common Pleas. The complaint is in an utter state of
disarray, often intertwining facts from two separate
and distinct matters: the third party liability claim
stemming from a May 9, 2002 automobile accident,
and the UIM claim.1 Upon a careful reading of
[Appellants’] complaint, [the trial] court []
ascertained the substantive causes of action pled
pertain to the UIM lawsuit. At no time did Allen
Feingold represent Ruth Wallace in her UIM lawsuit.
Mr. Feingold has never had any interest in Ruth
Wallace’s UIM lawsuit. Mr. Feingold was disbarred
from the practice of law in [August] 2008 prior to the
filing of Ms. Wallace’s UIM lawsuit.[1]
____________________________________________
1
Rule 217(j)(4)(iii) of the Pennsylvania Rules of Disciplinary Enforcement
provides that a formerly admitted attorney, such as Feingold, is “specifically
prohibited” from “performing any law-related services for any client who in
the past was represented by the formerly admitted attorney.” Pa.R.D.E.
217(j)(4)(iii). Since his disbarment, Feingold has filed numerous lawsuits
related to personal injury cases he was involved in as the plaintiffs’ attorney.
In all of these post-disbarment cases, Feingold named himself as a plaintiff
and proceeded pro se, in an obvious attempt to circumvent our Supreme
Court’s directive that he shall no longer practice law. All have been
dismissed following preliminary objections. In some of these cases, like the
present case, Feingold has named a former client as an additional plaintiff
and filed joint pro se filings on their behalf. See Feingold v.
Partenheimer, 4 A.3d 694 (Pa. Super. 2010) (unpublished memorandum),
appeal denied, 14 A.3d 828 (Pa. 2010); McCuen v. McNulty, 6 A.3d 548
(Pa. Super. 2010) (unpublished memorandum), appeal denied, 16 A.3d 504
(Pa. 2011); Feingold v. Puntri, 4 A.3d 678 (Pa. Super 2010) (unpublished
memorandum), appeal denied, 13 A.3d 479 (Pa. 2010); Smietana v. State
Farm, 4 A.3d 207 (Pa. Super. 2010) (unpublished memorandum), appeal
denied, 14 A.3d 829 (Pa. 2010); Feingold v. Whole Foods Market, Inc.,
959 A.2d 977 (Pa. Super. 2008) (unpublished memorandum), petition for
leave to file appeal nunc pro tunc denied, 958 A.2d 1043 (Pa. 2008); Smith
v. Travelers Ins. Co., 959 A.2d 982 (Pa. Super. 2008) (unpublished
memorandum). In other cases, Feingold was the sole plaintiff. See
Feingold v. Vasiliadis, --- A.3d ---, 2016 WL 2636226 (Pa. Super. 2016)
(unpublished memorandum); Feingold v. Brody, --- A.3d ---, 2016 WL
71308 (Pa. Super. 2016) (unpublished memorandum); Feingold v.
(Footnote Continued Next Page)
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[Appellants] filed suit against [Appellees],
David Rhode [sic], The Law Offices of David Rhode
[sic] (hereinafter “[Rohde Appellees]”), Marc Rickles,
Joseph Hankins, the Law Firm of Britt, Hankins &
Moughan (hereinafter “Hankins [Appellees]”) and
State Farm []. The [Rohde Appellees] represented
[Appellant] in [a] third-party liability lawsuit filed by
Wallace. The Hankins [Appellees] represented State
Farm in Wallace’s UIM lawsuit. [Appellee], Rickles,
served as the neutral arbitrator in the UIM matter.
[Appellants’] complaint alleges several causes of
action: bad faith against [] State Farm, breach of
contract against [] State Farm, an unnamed claim
against all [Appellees], abuse of process against all
[Appellees], negligent misrepresentation against all
[Appellees] and fraud against all [Appellees].
[Appellees] each filed preliminary objections to
the complaint. On March 19, 2015, [Appellants] filed
preliminary objections to [Appellees’] preliminary
objections to the complaint. [Appellants] submitted
only one set of preliminary objections in response to
the preliminary objections submitted by each
[Appellee]. On April 21, 2015, [the trial] court
entered an order overruling [Appellants’] preliminary
objections to [Appellees’] preliminary objections to
the complaint, and ordered that a response to the
preliminary objections of each [Appellee] be filed
individually by each [Appellant] within twenty (20)
days of the docketing of the order. The order was
docketed on April 22, 2015 and sent to all parties on
_______________________
(Footnote Continued)
Progressive N. Ins., 118 A.3d 458 (Pa. Super. 2015) (unpublished
memorandum); Feingold v. Hendrzak, 15 A.3d 937 (Pa. Super. 2011);
Feingold v. McNulty, 15 A.3d 534 (Pa. Super. 2010) (unpublished
memorandum), appeal denied, 23 A.3d 1056 (Pa. 2011). In Hendrzak, a
panel of this court sua sponte imposed an award of attorney’s fees against
Feingold for his “repeated abuse of the court system to harass defendants
and opposing counsel with lawsuits that contain nothing more than
unfounded allegations.” Hendrzak, supra at 943. We disapprove of
Feingold’s continued disregard for the courts and the legal profession.
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April 23, 2015 pursuant to Pa.R.C.P. 236(b).
[Appellants] failed to file a response to any of the
preliminary objections filed by [Appellees]. On May
20, 2015, [the trial] court entered an order
sustaining all preliminary objections and dismissing
the case with prejudice.
1
Wallace v. Feeney, Phila. Ct. Common Pleas, April
Term, 2004 No. 5371 (third-party liability lawsuit)
and Wallace v. State Farm Insurance Co., Phila. Ct.
Common Pleas, September Term, 2008, No. 1840
(UIM lawsuit).
Trial Court Opinion, 8/12/15, at 2-3 (citation and capitalization omitted). On
May 22, 2015, Appellants filed a timely notice of appeal.2
On appeal, Feingold presents the following issues for our review.
1. Whether the trial judge erred in refusing to recuse
himself from deliberation over this case?
2. Whether the trial court erred in failing to sustain
[Appellants’] preliminary objections to the
preliminary objections of [Appellees], and in
granting the [Appellees’] objections, where
[Appellees’] objections contained improper
verifications, scandalous and impertinent matter,
and improperly relied upon affirmative defenses?
3. Whether the trial court erred in granting
[Appellees’] preliminary objections?
Feingold’s Brief at 3.
____________________________________________
2
The trial court did not direct Appellants to comply with Pennsylvania Rule
of Appellate Procedure 1925. On August 12, 2015, the trial court issued its
Rule 1925(a) opinion.
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Initially, we note that Wallace signed the notice of appeal, but she did
not file a brief in this appeal. She did not sign the brief that Feingold
submitted, even though her name appears below his under the signature
line containing only Feingold’s signature. State Farm and Rohde Appellees
note that Wallace did not pay the costs of an appeal, submit an in forma
pauperis petition, or prepare a brief, so she is not a proper appellant. State
Farm’s Brief at 6; Rohde’s Brief at 6. We agree that Wallace’s failure to file
a brief results in the waiver of any issues she seeks to raise on appeal and
her appeal is dismissed. See generally Pa.R.A.P. 2188.
In his first issue, Feingold contends the Honorable Arnold New, the
trial judge, should have recused himself from this case as his August 12,
2015 opinion indicates that he was incapable of impartially deciding the
case. Feingold’s Brief at 10. Further, Feingold asserts, “Judge New has
circulated a secret directive to all staff of the prothonotary’s office forbidding
them from accepting filings from Feingold without Judge New’s prior
approval.” Id. at 11. Feingold concludes that “[t]he recusal motion should
have been granted and Judge New should have disqualified himself from any
participation in the appellant’s litigation.” Id.
Our review of the certified record discloses that Appellants did not
present a recusal motion to Judge New. “A party seeking recusal or
disqualification [is required] to raise the objection at the earliest possible
moment, or that party will suffer the consequence of being time barred.” In
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re Lokuta, 11 A.3d 427, 437 (Pa. 2011) (emphasis added), quoting
Goodheart v. Casey, 565 A.2d 757, 763 (Pa. 1989). Once a party has
waived the issue, that party “cannot be heard to complain following an
unfavorable result.” Commonwealth v. Stanton, 440 A.2d 585, 588 n.6
(Pa. Super. 1982) (citations omitted).
Accordingly, as Appellants did not request that Judge New recuse
himself at any time during the trial court proceedings, Feingold cannot seek
recusal for the first time on appeal. See Crawford v. Crawford, 633 A.2d
155, 160 (explaining that “[f]ailure to request recusal before the trial judge
has ruled on the substantive matter … precludes the right to have a judge
disqualified. Judicial bias may not be raised for the first time during post-
trial proceedings[]”) (citations omitted).
In his second and third issues, Feingold contends that the trial court
erred in overruling their preliminary objections to Appellees’ preliminary
objections and in sustaining Appellees’ preliminary objections.3 We apply
the following standard of review to a trial court’s ruling on preliminary
objections.
____________________________________________
3
We note that the order overruling Appellants’ preliminary objections was an
interlocutory order. However, the May 20, 2015 order sustaining Appellees’
preliminary objections and dismissing the complaint with prejudice was a
final order, rendering final the order overruling Appellants’ preliminary
objections. See Betz v. Pneumo Abex, LLC, 44 A.3d 27, 54 (Pa. 2012)
(noting “an appeal of a final order subsumes challenges to previous
interlocutory decisions”).
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Our standard of review of an order of the trial
court overruling or granting preliminary objections is
to determine whether the trial court committed an
error of law. When considering the appropriateness
of a ruling on preliminary objections, the appellate
court must apply the same standard as the trial
court.
Preliminary objections in the nature of a
demurrer test the legal sufficiency of the complaint.
When considering preliminary objections, all material
facts set forth in the challenged pleadings are
admitted as true, as well as all inferences reasonably
deducible therefrom. Preliminary objections which
seek the dismissal of a cause of action should be
sustained only in cases in which it is clear and free
from doubt that the pleader will be unable to prove
facts legally sufficient to establish the right to relief.
If any doubt exists as to whether a demurrer should
be sustained, it should be resolved in favor of
overruling the preliminary objections.
Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa. Super. 2015) (citations
and internal quotation marks omitted).
After reviewing the certified record, the parties’ briefs, and the
relevant law, we conclude that the opinion of the Honorable Arnold New
thoroughly and correctly addresses and disposes of Feingold’s issues and
supporting arguments and contains no abuse of discretion or errors of law.
Specifically, Appellants’ preliminary objections were meritless because each
of the Appellees’ verified their preliminary objections. See Preliminary
Objections of Rickles, 2/5/15, at 25; Rohde Appellees’ Brief in Support of
Preliminary Objections, 3/11/15, at 15; Hankins Appellees’ Praecipe to
Substitute Verification, 3/19/15, at 1; Response of State Farm to Appellants’
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Preliminary Objections, 4/9/15, at Exhibit B, Verification. Further, we agree
with the trial court that Feingold did not have standing in this lawsuit
because he was not a party to the underlying UIM case or a party to the
State Farm policy. Trial Court Opinion, 8/12/15, at 4. Moreover, the trial
court properly sustained the Appellees’ demurrers as to each count of the
complaint because it contained only legally conclusory averments and was
lacking facts to support those allegations. Id. at 5-8.
Accordingly, we adopt the trial court's opinion, filed on August 12,
2015, as our own and hold, based upon its reasoning, that the trial court did
not err in its legal conclusions nor commit an abuse of discretion in
overruling Appellants’ preliminary objections and sustaining those of
Appellees. The parties shall attach a copy of the trial court’s August 12,
2015 opinion to this memorandum in the event of future proceedings.
Appeal of Wallace dismissed. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/24/2016
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Circulated 06/13/2016 02:45 PM
1:
IN THE COURT OF COMMON PLEAS OF PHILADELPHJA COUNTY
FHRSTJUDICIAL DISTRICT OF PENNSYLVANIA
CIVIL TRIAL DIVISION
l
ALLEN FElNGOlLD
and JANUARY TERM, 201 S
RUTH WALLACE, NO. 2058
Plaintiffs,
v. · ..
ST ATE FARM MUTUAL INSURANCE ·-
CO., DAVID RHODE, LAW OFFICES
OF DA vm RHODE, MARC RICKLES,
JOSEPH HANKINS and BRITT, and
HANKINS & MOUGHAN,
Defendants.
~ .·
..
OPINION ~··
NE\V, J.
August 12, 2015
For the reasons set forth below, the Coon respectfully requests its Order of May 20, 2015
sustaining Defendants' Preliminary Objections be affirmed.
FACTUAL AND PROCEDURAL HISTORY
In January, 2015, Plaintiffs, Allen Feingold and Ruth Wallace (hereinafter "Plaintiff"
'·Feingold'' or "Wallace") filed a Civil Action Complaint with the Philadelphia Court of
Common Pleas. The Complaint is in an Oller stale of disarray, often intertwining facts from two
separate and distinct matters: the third party liability claim stemming from a May 9. 2002
au tom obi le accident, and the UIM claim '. Upon a careful reading of Plaintiffs' Complaint. this
Courr has ascertained the substantive causes of action pied pertain to the U!M lawsuit. At no
time