DocketNumber： 1573 EDA 2015
Filed Date： 6/24/2016
Status： Precedential
Modified Date： 6/25/2016
J-A11016-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 ALLEN FEINGOLD AND RUTH WALLACE IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants v. STATE FARM MUTUAL INSURANCE CO.,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) -2- J-A11016-16 [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. -3- J-A11016-16 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. -4- J-A11016-16 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 -5- J-A11016-16 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”). -6- J-A11016-16 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’ -7- J-A11016-16 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.