J-A18010-18
                             2018 PA Super 325
RUTH WALLACE,                            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellant               :
                                         :
                    v.                   :
                                         :
STATE FARM MUTUAL AUTOMOBILE             :
INSURANCE COMPANY,                       :
                                         :
                 Appellee                :   No. 2465 EDA 2017

                Appeal from the Order Entered June 30, 2017
           in the Court of Common Pleas of Philadelphia County
         Civil Division at No(s): September Term, 2008 No. 01840

BEFORE: STABILE, J., STEVENS, P.J.E.* and STRASSBURGER, J.**

OPINION BY STRASSBURGER, J.:             FILED NOVEMBER 30, 2018

     Ruth Wallace appeals from the order entered June 30, 2017, wherein

the trial court confirmed the arbitration award of January 19, 2015, and

entered judgment in favor of State Farm Mutual Automobile Insurance

Company (State Farm). We affirm the trial court’s order, but remand for the

imposition of attorneys’ fees and costs pursuant to Pa.R.A.P. 2744.

     The record reveals the following facts. In 2002, while insured by State

Farm, Wallace was injured in an automobile collision with a vehicle driven by

an underinsured motorist.      Wallace’s State Farm policy contained an

arbitration clause (Arbitration Clause). The Arbitration Clause required the

parties to submit disputes over coverage to an arbitration panel composed of

an arbitrator appointed by State Farm, an arbitrator appointed by Wallace,

and a “competent and impartial third arbitrator” to be selected by mutual

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
J-A18010-18

agreement or judicial decision.1 January 19, 2015 Arbitration Exhibit SF-5.

Specifically, the Arbitration Clause empowered the arbitrators to decide

whether Wallace was legally entitled to collect compensatory damages from

the owner or driver of an underinsured motor vehicle and the amount of

damages.     Id.   Per the policy, the Pennsylvania Arbitration Act of 1927

governed the arbitration, and the “written decision of any two arbitrators

shall be binding on each party.” Id.

      In 2008, Wallace filed a petition to appoint a neutral arbitrator and to

compel arbitration, averring that State Farm failed to pay all the proceeds to

which she was entitled under the policy, and the parties could not agree on a

third arbitrator.2,3   In support of her claim, Wallace averred that she had

already appointed her arbitrator, but she did not name the arbitrator in the

petition.   Petition to Appoint Third/Neutral Arbitrator and to Compel

Arbitration, 9/12/2008, at ¶ 22.       After State Farm filed an answer to

Wallace’s petition, the trial court appointed Shawn Ward, Esquire, as the



1 There are references to a second insurance policy in the record. It is not
clear whether only one or both of these policies apply. Nevertheless, the
second policy contains a clause that is identical to the Arbitration Clause, so
we shall refer only to the Arbitration Clause in the first policy for ease of
reference.

2 Wallace was represented by Jeffry S. Pearson, Esquire at this time. At
some point prior to 2013, Elliot Tolan, Esquire began representing Wallace in
place of Attorney Pearson.

3The record does not reveal the reason for the gap in time between 2002
and 2008 or details about Wallace’s claim to State Farm.


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neutral arbitrator, and ordered an arbitration hearing to occur within 60 days

of its February 20, 2009 order. Order, 2/20/2009, at 1.

      On July 19, 2013, State Farm filed a petition requesting that the trial

court appoint a different neutral arbitrator in place of Ward, averring that

Ward had never responded to the parties’ correspondence.           State Farm

contended that an arbitrator was especially needed to decide a dispute

between the parties regarding State Farm’s motion to obtain medical

records, work records, and an examination of Wallace under oath.          In its

petition, State Farm provided the name of its arbitrator, and averred that

Wallace still had not named her arbitrator.         Wallace filed an answer,

agreeing that Ward should be replaced.          Other than stating that her

arbitrator was from Philadelphia, she still did not identify her arbitrator. Via

an August 26, 2013 order, the trial court removed Ward as the neutral

arbitrator, appointed Marc Rickles, Esquire in his place, and ordered that

arbitration commence within 90 days of its order. Order, 8/26/2013, at 1.

      After continued disputes regarding State Farm’s requests, see January

19, 2015 Arbitration Exhibits A-3–A-5, A-13, SF-1–SF-2, Arbitrator Rickles

eventually scheduled an arbitration hearing for November 24, 2014, and

requested that Wallace identify her arbitrator. January 19, 2015 Arbitration

Exhibit A-6 (September 22, 2014 letter from Arbitrator Rickles to Attorney

Tolan and Joseph Hankins, Esquire, State Farm’s counsel).        On November

13, 2014, Arbitrator Rickles sent a letter to Attorney Tolan, which again



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reiterated the scheduled date for the hearing, as well as stating that

Arbitrator Rickles had not heard from Attorney Tolan or any arbitrator

appointed by Wallace. January 19, 2015 Arbitration Exhibit A-7. Attorney

Tolan replied to Arbitrator Rickles and requested that the hearing be

rescheduled due to a scheduling conflict and his intent to withdraw from

Wallace’s case.4 January 19, 2015 Arbitration Exhibit A-8. In response, via

a November 17, 2014 letter sent to Attorneys Tolan and Hankins, Arbitrator

Rickles notified the parties that he was rescheduling the hearing for Monday,

January 19, 2015, and provided a deadline for requesting a new date if

needed. January 19, 2015 Arbitration Exhibit A-9.

        On January 16, 2015, the Friday before the scheduled arbitration

hearing, Wallace and Allen Feingold5 filed pro se a lawsuit against Arbitrator




4   Attorney Tolan never withdrew and still represents Wallace on appeal.

5  The complaint alleges that Feingold “for a substantial period of time
represented [Wallace] in these and other matters.” January 19, 2015
Arbitration Exhibit A-10 at ¶ 1a. At the time Feingold and Wallace pro se
filed the complaint, Feingold was disbarred from practicing law in this
Commonwealth. Specifically,

        [i]n 2006, [Feingold] was suspended from the practice of law for
        five years for several acts of misconduct which included:
        allowing a client to give false testimony, filing frivolous claims
        of fraud and civil conspiracy against opposing counsel, and
        assaulting a judge who ruled against [Feingold’s] client in an
        arbitration hearing. After [Feingold] failed to notify his clients of
        this disciplinary action and continued practicing law while
        suspended, [Feingold] was disbarred by our Supreme Court on
        August 22, 2008. See Office of Disciplinary Counsel v.
(Footnote Continued Next Page)

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J-A18010-18

Rickles, State Farm, Attorney Hankins, the law firm of Attorney Hankins, and

the attorney and law firm representing the underinsured motorist in

Wallace’s third party tort action. See January 19, 2015 Arbitration Exhibit

A-10.     The complaint raised claims of bad faith, breach of contract,

“negligent    misrepresentation,”                “abuse   of   process,”   fraud,   and   civil

conspiracy, all of which purport to be related to the defendants’ conduct in

Wallace’s underinsured motorists’ arbitration matter and the third-party tort

matter. See id.

        On Sunday, January 18, 2015, Feingold sent a fax to Arbitrator Rickles

and Attorney Hankins. See January 19, 2015 Arbitration Exhibit A-11. In

the fax, Feingold referenced the newly-filed lawsuit, requested that
(Footnote Continued)   _______________________

        Feingold, 93 DB 2003; 92 DB 2005; Nos. 1093 and 1161
        Disciplinary Docket No. 3.

Feingold v. Hendrzak, 15 A.3d 937, 943 (Pa. Super. 2011) (emphasis
added); see also id. at 942-43 (reviewing Feingold’s pattern of filing
vexatious and frivolous litigation against opposing counsel and defendant
insurance companies).

       We take judicial notice that the law license of Wallace’s original
attorney in this matter, Attorney Pearson, was suspended for 20 months on
June 28, 2011, for his assuming representation of Feingold’s former clients
after Feingold’s suspension, and then assisting Feingold in Feingold’s
unauthorized practice of law with respect to those clients. See Order,
6/28/2011, in the matter of Office of Disciplinary Counsel v. Pearson,
No. 88 DB 2008; Report and Recommendations of the Disciplinary Board of
the Supreme Court of Pennsylvania in the matter of Office of Disciplinary
Counsel v. Pearson, No. 88 DB 2008, January 26, 2011. Finally, we take
judicial notice that the Disciplinary Board of the Supreme Court of
Pennsylvania publicly reprimanded Wallace’s current counsel, Attorney
Tolan, for his association with Feingold. See Public Reprimand, Office of
Disciplinary Counsel v. Tolan, No. 200 DB 2015, 4/13/2016.


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J-A18010-18

Arbitrator Rickles withdraw from the arbitration matter, and threatened to

join State Farm’s arbitrator in the lawsuit as a defendant if he participated in

the arbitration matter further. Id. He also stated that

      [o]ver the years, [he has] seen third arbitrators allow defense
      counsel to obtain discovery that they should not have be [sic]
      allowed to receive, but in this case, [Arbitrator] Rickles has
      crossed far beyond the line of fairness or neutrality and allowed
      the defense to obtain everything and anything they want
      providing an unfairness to this mater [sic] that violates the law,
      the case law, and shatters the discovery that is allowed in the
      State Farm policy to prevent the plaintiff, injured party, claimant
      from receiving a fair hearing, even before it starts.

Id.   In closing, Feingold stated that he “lost [his] law license trying to

prevent injustice, but now, with no license, [he finds] that in a case where

[he has] claims and old clients, [he] can do more to right those wrongs.”

Id.

      On the morning of the January 19, 2015 hearing,6 Wallace, Attorney

Tolan, and the arbitrator purportedly appointed by Wallace failed to appear.

Arbitrator Rickles attempted to reach out to Attorney Tolan multiple times.

See N.T., 1/19/2015, at 4-5; January 19, 2015 Arbitration Exhibit A-12.

After Arbitrator Rickles received no response, the arbitration hearing

proceeded without Wallace, Attorney Tolan, or Wallace’s arbitrator.

      Arbitrator Rickles and State Farm’s arbitrator, William Thomson,

Esquire, began by addressing Wallace’s newly-filed lawsuit.         They both

6 State Farm attached the transcript of and exhibits from the January 19,
2015 arbitration hearing to its Response to Petition to Strike, 3/10/2015, as
Exhibit A.


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J-A18010-18

concluded that the lawsuit did not require recusal because each believed he

could act impartially. N.T., 1/19/2015, at 41-44. Both declined to consider

Feingold’s faxed request for recusal because Feingold was neither Wallace’s

attorney nor a party in the case. Id. Thus, not only had Wallace failed to

move for recusal, the arbitrators agreed that it was her burden “to produce

evidence establishing bias, prejudice[,] or unfairness[,] which raises a

substantial doubt as to the … neutral party’s ability to preside impartially.”

Id. at 40, 43-44. The two arbitrators then entered an award on January 19,

2015, in favor of State Farm and against Wallace, noting that Wallace,

Wallace’s attorney, and Wallace’s arbitrator had failed to appear.

      On February 18, 2015, Wallace, through Attorney Tolan, petitioned the

trial court to set aside the arbitration award.    Wallace averred that the

neutral arbitrator had engaged in “bad faith antics” prior to the arbitration

and unbeknownst to her, proceeded with a “sham arbitration hearing,” years

after the August 26, 2013 order authorizing the arbitration, “with [Wallace’s]

arbitrator out of the country and half way around the world and without

[Wallace] or her counsel, all in spite of … conflicts of interest” based upon

the lawsuit filed by Wallace the business day before the scheduled

arbitration. Petition to Strike Arbitration Award, 2/18/2015, at ¶ 14.

      The trial court initially granted Wallace’s request, see Trial Court

Order, 4/6/2015, at 1, but in response to State Farm’s timely-filed motion

for reconsideration, the trial court vacated the April 6, 2015 order pending



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J-A18010-18

reargument. Trial Court Order, 4/13/2015, at 1. Following briefing and a

rule-to-show-cause hearing on June 30, 2017, the trial court granted State

Farm’s motion for reconsideration, vacated its April 6, 2015 order granting

Wallace’s petition to strike the arbitration award, confirmed the January 19,

2015 arbitration award, and entered judgment in favor of State Farm.7 Trial

Court Order, 6/30/2017, at 1. Wallace timely filed a notice of appeal. Both

Wallace and the trial court complied with Pa.R.A.P. 1925.

      On appeal, Wallace sets forth three arguments in support of her

contention that the trial court erred in dismissing her petition to strike the

arbitration award. First, she baldly asserts that Arbitrator Rickles improperly

allowed State Farm to access Wallace’s medical and third-party files,

permitted State Farm to engage in “serial, repetitive improper discovery,”

and banished Wallace’s arbitrator from participating in the process.

Wallace’s Brief at 10. As a result, she claims she was denied due process

and a “full and fair hearing.” Id. Second, Wallace claims that Arbitrators

Rickles and Thomson banished her arbitrator from participating in the

hearing, panel deliberations, and fashioning of the award, and such

banishment constitutes an “irregularity” that requires the trial court to strike

the award. Id. at 11-13. Third, she argues that the award should be set

aside based upon Arbitrator Rickles’s failure to recuse himself. Id. at 14-15.

7 The trial court attributed this lengthy delay to an erroneous administrative
closure of the matter prior to the rule-to-show-cause hearing. Trial Court
Opinion, 11/5/2017, at 2.


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J-A18010-18

      We review the affirmance of an arbitration award using the following

standard.   “This Court may reverse a trial court’s decision to affirm … an

arbitration award arising from an insurance contract only if the trial court

abused its discretion or committed an error of law.” Pantelis v. Erie Ins.

Exch., 890 A.2d 1063, 1065 (Pa. Super. 2006).

      Before we address the merits of Wallace’s issues, we must address her

failure to comply with our rules of appellate procedure.8 Wallace’s brief does

not contain a single citation to the record, in violation of Rules 2117 and

2119. See Pa.R.A.P. 2117(a)(4) (requiring a narrative statement of “all the

facts which are necessary to be known in order to determine the points in

controversy, with an appropriate reference in each instance to the place in

the record where the evidence substantiating the fact relied on may be

found”); Pa.R.A.P. 2119(c) (requiring the argument in a brief to be

accompanied by a reference to the place in the record where the matter

referred appears).   “We shall not … scour the record to find evidence to

support an argument; instead, we will deem [the] issue to be waived.”

Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018). Wallace also failed

to compile a reproduced record that complies with Pa.R.A.P. 2152–2154.

Compliance with the rules regarding the contents of reproduced records on




8 While we refer to Wallace because she is the party, we recognize that in
reality, it is Wallace’s counsel, Attorney Tolan, who has failed to follow our
rules.


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appeal is mandatory, not directory.     Rosselli v. Rosselli, 750 A.2d 355,

357 (Pa. Super. 2000).

       Even after State Farm pointed out Wallace’s failure to file a reproduced

record or to cite to the record in any fashion, Wallace’s response was to file

a reply brief with a section entitled “True History, Facts[,] and Improprieties

Committed by [State Farm]” with 29 divided paragraphs that still failed to

comply with our rules of appellate procedure. See Wallace’s Reply Brief at

1-4.

       Wallace’s failure to abide by the rules of appellate procedure is all the

more egregious given her broad and sweeping accusations of impropriety by

Arbitrators Rickles and Thomson.         Wallace’s counsel, Attorney Tolan,

represented to this Court at oral argument that Wallace has had the same

arbitrator throughout the case. However, despite Wallace’s argument that

the other arbitrators banished Wallace’s arbitrator from the proceedings, the

record contains no indication that Wallace ever named an arbitrator. In fact,

the record is replete with documentation of unsuccessful efforts by the

neutral arbitrator and State Farm’s attorney to ascertain the name of

Wallace’s arbitrator.9



9See Exhibit B to Response to Petition to Appoint Neutral Arbitrator and to
Compel Arbitration, 10/31/2008, at 1 (September 20, 2008 letter from State
Farm’s counsel to Wallace’s counsel requesting that Wallace provide the
name, address, and phone number of the arbitrator Wallace alleges she has
appointed in paragraph 21 of her petition); Exhibit F to Petition to Change
Arbitrator, 7/19/2013, at 1 (February 13, 2009 letter from State Farm’s
(Footnote Continued Next Page)

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J-A18010-18

      Moreover, on appeal, Wallace repeatedly fails to identify where she

objected to the participation of Arbitrator Rickles in the arbitration.           See

Wallace’s Brief at 14 (claiming that Wallace requested that Arbitrator Rickles

withdraw without citation to the record or any description of where the

request was made); Wallace’s Reply Brief at 8 (same).                This violates our

rules of appellate procedure.                Pa.R.A.P. 2117(c) (requiring a statement

regarding where the party preserved an issue in the trial court); 2119(e)

(same). Wallace was similarly vague in her motion to strike regarding her

alleged objection to the participation of Arbitrator Rickles.          See Motion to

Strike, 2/18/2015, at ¶ 13 (claiming that “[Wallace’s] counsel requested that

the alleged neutral arbitrator not proceed with the arbitration…”).

      Indeed, the record belies her repeated assertions that she objected to

the participation of Arbitrator Rickles. At hearing on the rule to show cause

regarding State Farm’s motion for reconsideration, Attorney Tolan admitted

to the trial court that he did not ask the trial court to appoint a new

arbitrator, request a continuance, or appear at the hearing to place an


(Footnote Continued)   _______________________

counsel to Arbitrator Ward indicating that to its knowledge, Wallace had not
appointed an arbitrator); Exhibit H to Petition to Change Arbitrator,
7/19/2013, at 1 (February 20, 2009 letter from State Farm’s counsel to
Wallace’s counsel and Arbitrator Ward requesting that Wallace provide the
name of her arbitrator); Exhibit J to Petition to Change Arbitrator,
7/19/2013, at 1 (April 23, 2013 letter from State Farm’s counsel to
Arbitrator Ward indicating that to its knowledge, Wallace still had not
appointed an arbitrator); January 19, 2015 Arbitration Exhibit A-11
(September 22, 2014 letter from Arbitrator Rickles to Attorneys Tolan and
Hankins requesting the name of Wallace’s arbitrator).


                                                 - 11 -
J-A18010-18

objection on the record that the hearing was unfair. N.T., 6/30/2017, at 9-

10. The record reveals that Wallace never moved or objected to Arbitrator

Rickles’s continued service as an arbitrator.     Feingold’s fax demanding

Arbitrator Rickles’s recusal simply does not constitute an objection by

Wallace, as Feingold was neither a party to the arbitration nor counsel for

Wallace.

      Wallace’s claim that she objected to Arbitrator Rickles’s failure to

recuse himself is particularly troubling given the fact that her counsel,

Attorney Tolan, also represented the appellant in State Farm Mutual Auto.

Ins. Co. v. Dill, 108 A.3d 882 (Pa. Super. 2015) (en banc). In Dill, this

Court plainly held that even if an arbitrator “had an independent obligation

to [disqualify himself voluntarily], such an obligation does not remove the

onus from [the claimant] to object to the composition of the panel.” Id. at

886. Failure to object to the composition of the panel results in a waiver on

appeal of a claim that an arbitrator was biased.     Dill, 108 A.3d at 886.

Accord Sheehan v. Nationwide Ins. Co., 779 A.2d 582, 584–85 (Pa.

Super. 2001) (“[U]pon motion the arbitrator is the one to initially determine

if a recusal request has merit[; i]t is the burden of the party requesting

recusal to produce evidence establishing bias, prejudice or unfairness which

raises a substantial doubt as to the [arbitrator’s] ability to preside

impartially.”). Thus, Attorney Tolan is well aware that Wallace had to lodge

an objection in order to preserve her claim.



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J-A18010-18

      What is even more shocking is that it is Wallace who attempted to

create a basis for recusal in this matter. Not only did Wallace file a lawsuit

at the proverbial eleventh hour, she filed such a lawsuit along with Feingold,

a disbarred former attorney who lacked standing, and did not plead “a single

plausible cause of action that could possibly permit recovery under the law,”

and made repeated “factually[-]unsupported accusations against [the

d]efendants,” which resulted in the complaint being dismissed as frivolous.10

Feingold v. State Farm Mut. Ins. Co., 2015 WL 5478217, at *4 (Pa. Com.

Pl. 2015), aff’d, 153 A.3d 1117 (Pa. Super. 2016) (unpublished), petition

for allowance of appeal denied, 160 A.3d 760 (Pa. 2016) (per curiam).

      Based on the foregoing, we hold that Wallace11 has waived all issues

for appeal based both upon her failure to comply with our rules of appellate

procedure and her failure to preserve her objection to Arbitrator Rickles’s

participation in the first instance.   Given Wallace’s failure to object to the

composition of the panel in accordance with Dill, we have no trouble

concluding that this appeal “has no basis in law and fact.”      U.S. Claims,

Inc. v. Dougherty, 914 A.2d 874, 878 (Pa. Super. 2006). Accordingly, we



10 Attorney Tolan’s continued reliance on this lawsuit as the basis for
Arbitrator Rickles’s recusal is all the more concerning given Attorney Tolan’s
public reprimand by the Disciplinary Board of the Supreme Court of
Pennsylvania for associating with Feingold, as mentioned supra.

11Like the trial judge who decided Feingold, we question to what extent
Wallace is aware of the conduct of Feingold and/or Attorney Tolan. See
Feingold, 2015 WL 5478217, at *3 n.3.


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are compelled to impose sanctions sua sponte upon Attorney Tolan pursuant

to Pa.R.A.P. 274412 based upon his obdurate and vexatious prosecution of a

frivolous appeal despite his full knowledge that Wallace never preserved her

objection to Arbitrator Rickles’s participation.    We affirm the trial court’s

June 30, 2017 order and remand to the trial court to determine an award of

appropriate costs and attorneys’ fees to be imposed against Attorney Tolan

in favor of State Farm.

      Order affirmed.      Case remanded for calculation and imposition of

attorneys’   fees   and   costs   occasioned   by   this   appeal.   Jurisdiction

relinquished.




12 An imposition of costs and fees is permissible under Pa.R.A.P. 2744 when
this Court determines “that an appeal is frivolous or taken solely for delay or
that the conduct of the participant against whom costs are to be imposed is
dilatory, obdurate or vexatious.” Pa.R.A.P. 2744.        “In determining the
propriety of such an award, we are ever guided by the principle that an
appeal is not frivolous simply because it lacks merit[; r]ather, it must be
found that the appeal has no basis in law or fact.” Dougherty, 914 A.2d at
878 (imposing sanctions pursuant to Pa.R.A.P. 2744 based upon pro se
appellant’s undeveloped arguments on appeal and “total inability to produce
any evidence that fraud or misconduct resulted in the denial of a hearing or
caused an inequitable [arbitration] award”). We may award sanctions sua
sponte. Feingold, 15 A.3d at 943 (imposing sua sponte counsel fees
against Feingold in wholly frivolous appeal of lawsuit filed pro se against
defendants and opposing counsel for the purpose of harassment).


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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary




Date: 11/30/18




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