Feingold v. Graff

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______

No. 12-2999
______

ALLEN L. FEINGOLD,
Appellant
v.

PAM GRAFF; ROBERTA HARRIS; MICHELLE PUNTURI; MARC MANZIONE;
PENNSYLVANIA ORTHOPEDIC ASSOCIATES, INC.; GIANT FOOD STORES,
LLC; CHRISTOPHER WENK; MAC RISK MANAGEMENT, INC.; MARSHALL,
DENNEHEY, WARNER, COLEMAN, AND GOGGIN
______

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:12-cv-01090-JD)
District Judge: Honorable Jan E. Dubois
______

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
March 19, 2013

Before: SMITH, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges.

(Opinion Filed: March 22, 2013 )
______

OPINION OF THE COURT
______

PER CURIAM

Allen L. Feingold (“Feingold”), a former attorney, filed a pro se complaint against

Pam Graff, Christopher Wenk, MAC Risk Management (“MAC”), Giant Food Stores

(“Giant”), Roberta Harris, Marc Manzione, Pennsylvania Orthopedic Associates
(“POA”), Michelle Punturi, and Marshall, Dennehey, Warner, Coleman & Goggin

(“MDWCG”). The District Court interpreted Feingold‟s complaint as seeking quantum

meruit from Harris for his work as her attorney in workers‟ compensation litigation, and

as alleging fraud, abuse of process, and civil conspiracy against the other Appellees. The

District Court granted the motions to dismiss of all Appellees, and sua sponte dismissed

the claims against Harris.1 For the reasons that follow, we will affirm, and award

appellate fees, costs, and expenses to certain Appellees.

I.

The events giving rise to this appeal began on September 18, 2003 when Harris

injured herself while working as an employee of Giant. Feingold agreed to represent

Harris in her workers‟ compensation litigation on a contingency fee basis. Feingold

alleges that during the workers‟ compensation litigation, Giant and MAC, Giant‟s

insurance company, “played games” to make it difficult for Harris to be examined by

Giant‟s medical expert. On February 9, 2010, Giant prevailed before a Workers‟

Compensation Judge. The matter was appealed to the Workers‟ Compensation Appeal

Board, which remanded the matter back to the Workers‟ Compensation Judge. Feingold

does not explain what happened after the remand.

Feingold alleges, without identifying any specific instances or actions, that Giant

and MAC devised a scheme to hire medical experts who would only present favorable

testimony so they need not pay legitimately injured workers, even if they knew such

1
Neither Harris, nor an attorney on her behalf, entered an appearance before the District
Court. Feingold v. Graff, No. 12-1090, 2012 WL 2400998, *6 (E.D. Pa. June 26, 2012).
Similarly, a brief has not been filed to this Court on her behalf.
2
testimony was false and that the workers were entitled to workers‟ compensation

benefits. Feingold alleges that Manzione and Pennsylvania Orthopedics were the medical

experts who agreed to provide false testimony favorable to Giant and MAC. Feingold

alleges Giant and MAC retained MDWCG because the firm was willing to aid in their

conspiracy.2 Feingold also requests punitive damages due to the allegedly intentional,

wanton, or reckless nature of Appellees‟ fraudulent and improper actions.

Feingold admits that his involvement in Harris‟ workers‟ compensation litigation

ended in 2007. Though Feingold‟s complaint fails to provide a clear timeline of the

workers‟ compensation proceedings, it is obvious that much of the litigation occurred

after 2007, and after Feingold ceased his involvement in Harris‟ case.

The District Court dismissed all of Feingold‟s claims with prejudice, finding that

they were time-barred by statutes of limitations and that, on the merits, Feingold failed to

state a claim. In so doing, the District Court took judicial notice of the fact that

Feingold‟s license to practice law was suspended prior to 2007, indicating Feingold was

unable to represent Harris after that point. Feingold timely appealed. Feingold alleges

the District Court erred in taking judicial notice of his disciplinary history, and that the

District Court erred in finding that his complaint failed to state a claim. On appeal,

Appellees Punturi, MDWCG, Graff, Wenk, MAC, and Giant filed motions for costs and

fees pursuant to Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927.

2
As the District Court noted, “The Complaint asserts that defendants Graff, Wenk, and
Punturi share business addresses with Giant, MAC, and MDWCG respectively, . . . , but
it alleges nothing more about their involvement in the case.” Feingold v. Graff, 2012 WL
2400998 at *1.
3
 II.

The District Court had jurisdiction pursuant to 28 U.S.C. § 1332(a), and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court‟s decision to take

judicial notice of a fact for abuse of discretion. United States v. Mitchell, 365 F.3d 215,

251 (3d Cir. 2004). We exercise plenary review over a district court‟s order dismissing a

complaint, and we accept all factual allegations as true and construe the complaint in the

light most favorable to the plaintiff. R & J Holding Co. v. Redevelopment Auth. of Cnty.

of Montgomery, 670 F.3d 420, 424 (3d Cir. 2011).

A. Judicial Notice

Feingold alleges that the District Court improperly took judicial notice of his

disciplinary history. Feingold also argues that even if the taking of judicial notice was

proper, the District Court failed to provide notice to the parties that it was converting the

motion to dismiss into a motion for summary judgment. This claim fails.

A court may take judicial notice of “a fact that is not subject to reasonable dispute

because it . . . can be accurately and readily determined from sources whose accuracy

cannot reasonably be questioned.” FED. R. EVID. 201(b). A court may consider

judicially noticeable facts without converting a motion to dismiss into a motion for

summary judgment. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 323

(2007) (noting courts “ordinarily examine . . . matters of which [they] may take judicial

notice” when ruling on Rule 12(b)(6) motions to dismiss).

The fact of Feingold‟s suspension is “readily determin[able] from sources whose

accuracy cannot reasonably be questioned,” as the Disciplinary Board of the Supreme

4
Court of Pennsylvania provides the public with free access to disciplinary records,

including the form of discipline imposed, the date it was imposed, and the reasoning

underlying the imposition of discipline.3 As such, the District Court did not abuse its

discretion by taking judicial notice of Feingold‟s disciplinary history.

B. The Motion to Dismiss

“[A] complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(internal quotation marks omitted). “Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Id.

When alleging fraudulent conduct, the complaint must satisfy the heightened

standard in FED. R. CIV. P. 9(b): “In alleging fraud or mistake a party must state with

particularity the circumstances constituting fraud or mistake.” To satisfy the particularity

standard, “the plaintiff must plead or allege the date, time and place of the alleged fraud

or otherwise inject precision or some measure of substantiation into a fraud allegation.”

Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007).

1. Claim Against Harris

3
This information is publicly available, without cost to the viewer, at: Disciplinary Board
of the Supreme Court of Pennsylvania, PA Attorney Public Information: Allen L.
Feingold, http://www.padisciplinaryboard.org/look-up/pa-attorney-
public.php?id=3892&attname=Feingold%2C+Allen+L.+&violations=0. According to
this site, Feingold had his license suspended for three years on March 3, 2006, and then
again for two years, consecutive to the earlier suspension, on August 26, 2006. On
August 28, 2008, Feingold was disbarred.
5
 Feingold alleges he is entitled to at least quantum meruit for his work on Harris‟

behalf, and that if Harris succeeds in her workers‟ compensation litigation, he is entitled

to legal fees and reimbursement of expenses.

In Pennsylvania, actions based on contract are subject to a four-year statute of

limitations. 42 PA. CONS. STAT. § 5525 (2012). A quantum meruit action is subject to

this limitation, and the cause of action accrues at the time the attorney ceases representing

the client. Fowkes v. Shoemaker, 661 A.2d 877, 880 (Pa. Super. Ct. 1995). An action to

recover legal fees and expenses is subject to the same statute of limitations. 42 PA.

CONS. STAT. § 5525.

Feingold filed the instant complaint on February 29, 2012. He was first suspended

from the practice of law on March 3, 2006, and so ceased representing Harris as of that

date. Any potential cause of action related to his representation of Harris accrued at that

time, Fowkes, 661 A.2d at 880, roughly six years prior to his filing of the instant

complaint. If Feingold did not cease representing Harris immediately after his March 3,

2006 suspension, he concedes in his complaint that his representation of Harris

terminated “in 2007.” Even if “in 2007” means 11:59 p.m. on December 31, 2007,

Feingold‟s complaint was still filed more than four years after the cause of action

accrued. Therefore the claim is time-barred, and the District Court did not err in

dismissing it.

2. Claim for Fraud
6
 Feingold brings a claim for common law fraud against the remaining Appellees.4

In Pennsylvania, a plaintiff must establish the following for a claim of fraud: “(1) a

representation; (2) which is material to the transaction at hand; (3) made falsely, with

knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent

of misleading another into relying on it; (5) justifiable reliance on the misrepresentation;

and (6) the resulting injury was proximately caused by the reliance.” Gibbs v. Ernst, 647

A.2d 882, 889 (Pa. 1994). “„The successful maintenance of a cause of action for fraud

includes, inter alia, a showing that the plaintiff acted in reliance on the defendant‟s

misrepresentations.‟” Debbs v. Chrysler Corp., 810 A.2d 137, 155 (Pa. Super. Ct. 2002)

(quoting Klemow v. Time, Inc., 352 A.2d 12, 16 n.17 (Pa. 1976)).

Feingold does not allege that he relied on any of the statements made by

defendants. At most, he alleges, albeit unclearly, that a Workers‟ Compensation Judge

relied on Appellees‟ alleged misrepresentations. Since Appellant cannot satisfy the

“reliance” element, he failed to state a claim for fraud. Furthermore, Feingold did not

meet Rule 9(b)‟s heightened pleading standard. He does not allege any specific acts,

statements, or instances of misrepresentation or fraud, and so fails to “inject precision or

some measure of substantiation into [the] fraud allegation.” Frederico, 507 F.3d at 200.

The District Court did not err in dismissing this claim.

4
This claim was also barred by the statute of limitations. In Pennsylvania, fraud claims
are subject to a two-year statute of limitations. 42 PA. CONS. STAT. § 5524(7). The
alleged fraud occurred before 2007, when Feingold‟s involvement in Harris‟ litigation
ceased. Therefore the cause of action arose more than two years prior to Feingold‟s filing
of the complaint. However, the District Court did not dispose of the claim on this
ground, and instead dismissed it on the merits.
7
 3. Abuse of Process

The District Court interpreted Feingold‟s complaint as raising an “abuse of

process” claim against Appellees. Such claims are subject to a two-year statute of

limitations. 42 PA. CONS. STAT. § 5524(1). The only prior “process” alleged in this

matter was Harris‟ workers‟ compensation litigation. As noted above, Feingold‟s

involvement in that case ended, at the latest, in 2007, over four years prior to his filing of

the complaint. The District Court properly found this claim to be time-barred.

4. Civil Conspiracy

Feingold also alleges civil conspiracy. An action for civil conspiracy may only be

maintained if the substantive claims of unlawful conduct which underlie the conspiracy

claim survive; dismissal or summary judgment of the underlying claims results in

dismissal or summary judgment of the civil conspiracy claim. Phillips v. Selig, 959 A.2d

420, 437 (Pa. Super. Ct. 2008); Pelagatti v. Cohen, 536 A.2d 1337, 1341-42, 1344 (Pa.

Super. Ct. 1987). Since the District Court properly dismissed all of Feingold‟s

substantive claims, it properly dismissed his civil conspiracy claim.5

C. Appellees’ Motions for Fees and Costs

Appellees MDWCG and Michelle Punturi filed a motion seeking costs and fees

under Federal Rule of Appellate Procedure 38 and 28 U.S.C. § 1927. Appellees Graff,

5
The same holds true for Feingold‟s claim for punitive damages. Pioneer Commercial
Funding Corp. v. Amer. Fin. Mortg. Corp., 855 A.2d 818, 833 n.33 (Pa. 2004) (citing
Kirkbride v. Lisbon Contractors, Inc., 555 A.2d 800, 802 (Pa. 1989) (“„If no cause of
action exists, then no independent action exists for a claim of punitive damages since
punitive damages [are] only an element of damages.‟”)).
8
Wenk, MAC, and Giant filed an identical motion. For the remainder of the opinion, we

will refer to these individuals collectively as “Fee Appellees.”6

Fee Appellees allege that Feingold has filed nearly identical claims against these

same parties in the past, which were all dismissed with prejudice.7 Fee Appellees also

claim Feingold habitually files frivolous state and federal complaints, consisting of vague

allegations of fraud, abuse of process, and civil conspiracy against parties who prevailed

against him in prior litigation, as well as their counsel, insurers, and medical experts.

Feingold filed an Answer to Fee Appellees‟ motions, in which he denied Fee Appellees‟

averments as irrelevant, or as conclusions of law which do not require responsive

pleading. Despite the opportunity to contest the merits of Appellees‟ allegations,

Feingold did not do so.

The Superior Court of Pennsylvania agreed with Fee Appellees‟ allegations in a

prior case involving Feingold. In Feingold v. Hendrzak, the court

note[d] with displeasure that [Feingold] has filed nearly identical
lawsuits against other defendants, along with their attorneys,
insurance companies, and medical experts. In each case,
[Feingold] claims all parties conspired to withhold discovery and
abused the legal process to [Feingold’s] detriment, intending to
deprive him of counsel fees and to cause him emotional distress.
This Court has affirmed the dismissal of these mirror lawsuits for

6
Appellees request “sanctions” under these provisions. However, Rule 38 and § 1927 do
not concern “sanctions,” but rather deal solely with fees and costs, and so we will limit
our discussion to those items. Prosser v. Prosser, 186 F.3d 403, 407 (3d Cir. 1999).
7
Feingold v. Punturi, No. 4823, 2009 Phila. Ct. Com. Pl. LEXIS 219 (Phila. Ct. Com.
Pl., October 13, 2009). The only difference is that, in that case, Harris was allegedly a
“plaintiff,” and not a defendant; though the Common Pleas Court noted that Harris did
not seem to be involved in the case. Id. at *6 n.4. This decision was affirmed by the
Superior Court of Pennsylvania. Feingold v. Punturi, 4 A.3d 678 (Pa. Super. Ct. 2010).
9
 Appellant‟s failure to plead any material facts, . . . . In disregard of
this Court‟s [prior] ruling, [Feingold] has continued his pattern of
vexatious litigation against other defendants, but none of his
complaints have survived preliminary objections to their legal
insufficiency.8

15 A.3d 937, 942-43 (Pa. Super. Ct. 2011) (emphasis added). The court noted that as of

its February 22, 2011 decision, Feingold had filed six separate state court complaints and

one federal complaint, making nearly identical allegations, and none of which “survived

preliminary objections to their legal sufficiency.” Id. at 943. Similarly, the District Court

noted, in its June 26, 2012 decision, that Feingold “has made a practice of asserting such

claims against former clients, opposing counsel, medical experts, and others who were

involved in litigation in which he did not prevail,” and cited five other federal district

court cases as examples. Feingold v. Graff, No. 12-1090, 2012 WL 2400998, *1 n.1

(E.D. Pa. June 26, 2012). In Hendrzak, the Superior Court, sua sponte, ordered Feingold

to pay counsel fees, finding that “it is blatantly clear that [Feingold] filed this frivolous

lawsuit and subsequent appeal to vex Appellees with complete disregard for our court

system, our rules of civil procedure, and the legal profession.” 15 A.3d at 943.

1. Rule 38 Damages

Under Federal Rule of Appellate Procedure 38, “[i]f a court of appeals determines

that an appeal is frivolous, it may, after a separately filed motion or notice from the court

8
Though Feingold did not allege emotional distress in the complaint, we note that he did
attempt to allege infliction of emotional distress, just as the Hendrzak court noted, in his
response to Appellees‟ motions to dismiss. Feingold v. Graff, No. 12-1090, 2012 WL
2400998, *1 n.2 (E.D. Pa. June 26, 2012).
10
and reasonable opportunity to respond, award just damages and single or double costs to

the appellee.”

“The purpose of an award of attorneys‟ fees under Rule 38 is to compensate

appellees who are forced to defend judgments awarded them in the trial court from

appeals that are wholly without merit, and to preserve the appellate calendar for cases

worthy of consideration.” Kerchner v. Obama, 612 F.3d 204, 209 (3d Cir. 2010)

(internal quotation marks omitted). “This court employs an objective standard to

determine whether or not an appeal is frivolous which focuses on the merits of the appeal

regardless of good or bad faith.” Id. (internal quotation marks omitted). “[A]n appeal

from a frivolous claim is likewise frivolous.” Id. (internal quotation marks omitted). In

assessing whether appellants had notice of the frivolity of their claims, we may consider

the fact that similar claims have been held frivolous in both this jurisdiction and in others.

Id. We may also consider whether “other courts have imposed sanctions for similar

reasons.” Id. at 210.

Prior to filing this complaint on February 29, 2012, and his notice of appeal on

July 18, 2012, Feingold was, or should have been, fully aware of the frivolous nature of

his claims. He had filed several cases alleging civil conspiracy, fraud, abuse of process,

and other, similar state law claims, as well as federal claims predicated on the alleged

commission of those torts. Hendrzak, 15 A.3d at 943 n.3 (collecting cases); Feingold v.

Graff, 2012 WL 2400998, at *1 n.1 (same). These cases were disposed of on their

merits, due to the legal insufficiency of the claims. Hendrzak, 15 A.3d at 943.

Additionally, not only have “other courts . . . imposed sanctions for similar reasons,”

11
Kerchner, 612 F.3d at 210, but other courts have imposed sanctions for identical reasons,

against this same litigant. Hendrzak, 15 A.3d at 943.

Despite his awareness that several state and federal courts had, on multiple

occasions, found these claims without merit, and despite the Pennsylvania Superior

Court‟s prior determination that these claims are so frivolous as to justify sua sponte

sanctions, Feingold filed the instant complaint, and then this appeal. Feingold‟s conduct

shows an utter lack of respect for the judiciary and the legal process, and maliciously

exposes numerous individuals to frivolous litigation and its attendant aggravations and

expenses. Given the nature of Feingold‟s conduct, we find full payment of Fee

Appellees‟ appellate costs, expenses, and attorneys‟ fees to be “just damages” for

Feingold‟s frivolous litigation.9

2. Enforcement of the Order

Appellees Punturi and MDWCG request that we impose conditions on Feingold

that will ensure his compliance with our order to pay fees and costs, while also protecting

the legal process, and other potential defendants, from the time, aggravation, and

expenses involved with having crossed Feingold‟s path in the past. Appellees direct our

9
We find it unnecessary to address Fee Appellees request for fees and costs under 28
U.S.C. § 1927, which provides, “Any attorney or other person admitted to conduct cases
in any court of the United States . . . who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the court to satisfy personally the
excess costs, expenses, and attorneys‟ fees reasonably incurred because of such conduct.”
As we have already decided to award Fee Appellees their appellate costs and attorneys‟
fees, we need not decide whether to award them “excess costs, expenses, and attorneys‟
fees.” Furthermore, we express doubt as to whether 28 U.S.C. § 1927 may be applied to
non-lawyer, pro se litigants, see Sassower v. Field, 973 F.2d 75, 80 (2d Cir. 1992), and
we need not decide this difficult issue now.
12
attention to cases from other Courts of Appeals which have barred litigants from filing

appeals with the court until Rule 38 fees and costs have been paid, or a district judge

certifies that the claim is not frivolous. Autry v. Woods, 106 F.3d 61, 63 (4th Cir. 1997)

(per curiam); Smith v, McCleod, 946 F.2d 417, 418 (5th Cir. 1991); see also Jones v. Abc-

Tv, 516 U.S. 363, 363 (1996) (per curiam) (directing Clerk of Supreme Court not to

accept further petitions from petitioner in noncriminal matters until payment of fees

under Rule 38).

Given Feingold‟s demonstrated lack of respect for the judicial process, and his

continual filing of frivolous lawsuits even after his disbarment, we warn Feingold that if

he continues to file frivolous civil appeals in this Court, he risks the imposition of

sanctions, including being enjoined from filing future civil appeals.

III.

For the foregoing reasons, we will affirm the District Court‟s order granting

Appellees‟ motions for dismissal, and we will grant Fee Appellees‟ motions for fees and

costs. This matter is remanded to the District Court for the limited purpose of assessing

damages and enforcing payment of the same. This remand is not for the purpose of

relitigating issues already decided by the District Court and affirmed by this Court.

Damages shall consist of attorneys‟ fees, costs, and expenses associated with responding

to this appeal, pursuant to Federal Rules of Appellate Procedure 38 and 39. Within such

time period following remand as the District Court may set, Appellees Punturi,

MDWCG, Graff, Wenk, MAC, and Giant shall file itemized lists of damages consistent

with our remand.

13