J-A15012-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ALLEN FEINGOLD                             :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                v.                             :
                                               :
    MCCORMICK & PRIORE PC, PETER               :
    KULP, SCOTT TREDWELL, ERIE                 :
    INSURANCE EXCHANGE, GENE                   :
    SALKIND, IMX MEDICAL                       :
    MANAGEMENT, AND JOSEPH                     :
    BERNSTEIN                                  :
                                               :
                       Appellees               :      No. 3273 EDA 2019

                Appeal from the Order Entered November 4, 2019
              In the Court of Common Pleas of Philadelphia County
                     Civil Division at No(s): No. 190800208


BEFORE:       LAZARUS, J., KING, J., and STRASSBURGER, J.*

MEMORANDUM BY KING, J.:                                FILED AUGUST 14, 2020

        Appellant, Allen Feingold, appeals from the order entered in the

Philadelphia Court of Common Pleas, sustaining the preliminary objections

filed by Appellees, McCormick & Priore PC (“McCormick”), Peter Kulp, Scott

Tredwell, and Erie Insurance Exchange (“Erie”), and dismissing Appellant’s

complaint as to all Appellees with prejudice. We affirm.

        In its opinion, the trial court summarized the relevant facts of this case

as follows:

           [Appellant] filed a [pro se] complaint with the Philadelphia
           Court of Common Pleas on August 6, 2019. The complaint
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A15012-20


       arises out of two motor vehicle accidents involving Ms. Hilda
       Cid occurring in May 2005 and March 2006 (hereinafter “the
       accidents”), respectively.1 [Appellant’s] connection to the
       underlying     matters   stems    from    his   prior   legal
       representations as Ms. Cid’s lawyer. On October 8, 2018,
       [Appellant] allegedly executed an agreement with Ms. Cid.
       The agreement assigned any and all claims relating to the
       accidents to [Appellant] in exchange for previous legal
       representation. [Appellant] is currently disbarred from
       practicing law in the Commonwealth of Pennsylvania.2

          1  Ms. Cid is involved in multiple cases arising out of
          the accidents. One case is currently in deferred status
          in the Court of Common Pleas of Philadelphia County
          … while another is a still active case in the Court of
          Common Pleas of Montgomery County…. Ms. Cid and
          [Appellant] are involved in both cases. Like the
          instant matter, the underlying claims relate to Ms.
          Cid’s alleged causes of action against her insurance
          carrier … at the time of the motor vehicle accident.
          The instant matter contains claims which are identical
          to those found in the other two matters. Also, in
          [Appellant’s] answers to the preliminary objections
          filed by [McCormick], the majority of [Appellant’s]
          responses relate to actions taken in the underlying
          lawsuits….

          2 [Appellant] was disbarred from the practice of law in
          Pennsylvania on August 22, 2008. Not only was
          [Appellant] disbarred in 2008, [Appellant] was also
          given a three year suspension on March 3, 2006 and
          a subsequent two year suspension consecutive to the
          March 3 suspension on August 22, 2006.             This
          indicates [Appellant] was not allowed to practice law
          in Pennsylvania at any time following Ms. Cid’s second
          motor vehicle accident.

       [Appellant] filed the instant complaint against [Appellees].
       [Erie] was Ms. Cid’s insurance carrier at the time of the
       accidents, as well as a defendant in other lawsuits involving
       Ms. Cid arising out of the accidents.          [McCormick]
       represented [Erie] in those lawsuits. [Appellees Bernstein
       and Salkind] are expert witnesses used by [McCormick] in
       the other lawsuits. IMX Medical Management is a company

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J-A15012-20


          who manages and coordinates independent medical
          examinations and evaluations. IMX Medical Management
          assert they were never involved in any independent medical
          examinations or any other actions with Ms. Cid relating to
          the accidents.

          [Appellant’s] complaint alleges several causes of action:
          breach of contract, negligent misrepresentation, abuse of
          process, fraud, defamation, infliction of emotional distress,
          bad faith, and multiple unnamed claims. On August 26,
          2019, [McCormick] and [Erie] jointly filed preliminary
          objections to the complaint.      On September 4, 2019,
          [Appellee] Joseph Bernstein filed preliminary objections to
          the complaint. On November 4, 2019, [the trial] court
          entered an order sustaining all preliminary objections and
          dismissing the complaint as to all [Appellees] on the
          grounds [Appellant] lacked capacity to sue any of
          [Appellees]. As a result, [the trial] court did not address
          any other issues raised in [Appellees’] preliminary
          objections.

(Trial Court Opinion, filed December 26, 2019, at 1-3) (internal citations and

some capitalization omitted).

       Appellant filed a notice of appeal on November 12, 2019.1 On November

15, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Appellant timely filed his Rule

1925(b) statement on December 4, 2019.

       Appellant raises the following issues for our review:

          Whether the trial court erred in [sustaining] the preliminary
          objections of [Appellees] and dismissing the complaint with
          prejudice?



____________________________________________


1 Although Appellant proceeded pro se in the trial court, current counsel filed
the notice of appeal and entered his appearance with this Court.

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J-A15012-20


         Whether the trial judge abused his discretion by engaging
         in prejudicial conduct towards [Appellant] and his former
         clients?

         Whether the trial court erred in dismissing [Appellant’s]
         complaint where the judge overruled the decisions of a
         judge of coordinate jurisdiction?

(Appellant’s Brief at 3).

      In his first issue, Appellant emphasizes that Appellees “improperly urge

the dismissal of this case based upon the affirmative defense of collateral

estoppel.” (Id. at 8). Appellant insists collateral estoppel is unavailable to

Appellees because, inter alia, “the previous proceedings related to this matter

… did not involve any consideration as to whether [Appellant] might, via an

assignment, viably pursue complaints against [Appellees] relating to their

participation in a conspiracy and withholding of evidence in a separate action.”

(Id. at 9). Appellant maintains his complaint contained valid causes of action

for civil conspiracy, fraud, infliction of emotional distress, and abuse of

process, and the court should have denied any demurrer to these claims.

      Further, Appellant contends he has standing to file the complaint

because he “has advanced costs, his time and fees in connection with the

uninsured/underinsured motorist claims and numerous other matters and has,

at a minimum, a quantum meruit claim for the value of the legal services he

provided.”    (Id. at 20).   Appellant baldly asserts “[t]his financial stake

provides an adequate ‘interest’ to confer standing upon [Appellant] to seek

redress by means of the present lawsuit.” (Id.) Moreover, Appellant argues


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J-A15012-20


his “claim to intervention is further secured by virtue of” Ms. Cid’s assignment

of her bad faith claim, which was “freely assignable.” (Id.) Based upon the

foregoing, Appellant concludes the trial court should not have dismissed his

complaint with prejudice. We disagree.

      We begin by noting our scope and standard of review for an order

sustaining preliminary objections:

         Our standard of review mandates that on an appeal from an
         order sustaining preliminary objections which would result
         in the dismissal of suit, we accept as true all well-pleaded
         material facts set forth in the [a]ppellant’s complaint and all
         reasonable inferences which may be drawn from those facts.
         This standard is equally applicable to our review of
         preliminary objections in the nature of a demurrer. Where,
         as here, upholding sustained preliminary objections would
         result in the dismissal of an action, we may do so only in
         cases that are clear and free from doubt. To be clear and
         free from doubt that dismissal is appropriate, it must appear
         with certainty that the law would not permit recovery by the
         plaintiff upon the facts averred. Any doubt should be
         resolved by a refusal to sustain the objections. We review
         for merit and correctness—that is to say, for an abuse of
         discretion or an error of law. This case was dismissed at the
         preliminary objections stage on issues of law; our scope of
         review is thus plenary.

Marks v. Nationwide Ins. Co., 762 A.2d 1098, 1099 (Pa.Super. 2000),

appeal denied, 567 Pa. 751, 788 A.2d 381 (2001) (quoting Donahue v.

Federal Exp. Corp., 753 A.2d 238, 241 (Pa.Super. 2000)).

      “[I]n Pennsylvania, a party seeking judicial resolution of a controversy

‘must establish as a threshold matter that he has standing to maintain the

action.’” In re Walker, 208 A.3d 472, 475 (Pa.Super. 2019), appeal denied,




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___ Pa. ___, 218 A.3d 856 (2019) (quoting Johnson v. American Standard,

607 Pa. 492, 510, 8 A.3d 318, 329 (2010)).

         [T]he doctrine of standing is a prudential, judicially[-
         ]created principle designed to winnow out litigants who have
         no direct interest in a judicial matter. For standing to exist,
         the underlying controversy must be real and concrete, such
         that the party initiating the legal action has, in fact, been
         “aggrieved.” The core concept of standing is that a person
         who is not adversely affected in any way by the matter he
         seeks to challenge is not “aggrieved” thereby and has no
         standing to obtain a judicial resolution to his challenge. A
         party is aggrieved for purposes of establishing standing
         when the party has a substantial, direct and immediate
         interest in the outcome of litigation. A party’s interest is
         substantial when it surpasses the interest of all citizens in
         procuring obedience to the law; it is direct when the
         asserted violation shares a causal connection with the
         alleged harm; finally, a party’s interest is immediate when
         the causal connection with the alleged harm is neither
         remote nor speculative.

In re Nadzam, 203 A.3d 215, 220-21 (Pa.Super. 2019) (quoting Rellick-

Smith v. Rellick, 147 A.3d 897, 901 (Pa.Super. 2016)) (emphasis omitted).

     “An assignment is a transfer of property or a right from one person to

another; unless qualified, it extinguishes the assignor’s right to performance

by the obligor and transfers that right to the assignee.”      Crawford Cent.

School Dist. v. Com., 585 Pa. 131, 136, 888 A.2d 616, 619 (2005). “[U]nder

Pennsylvania state law, an unliquidated personal injury tort claim is not a

property right and is not assignable.” Chiropractic Nutritional Associates,

Inc. v. Empire Blue Cross and Blue Shield, 669 A.2d 975, 983 (Pa.Super.

1995).

         [W]e do not permit the assignment of a cause of action to

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J-A15012-20


         recover for personal injuries. … [S]uch assignments are
         void, in part, because a personal injury involves rights which
         are personal to the individual injured and are considered to
         be of concern only to the individual injured.

Hedlund Mfg. Co., Inc. v. Weiser, Stapler & Spivak, 517 Pa. 522, 525-

26, 539 A.2d 357, 358-59 (1988) (internal citations omitted) (emphasis in

original).

      Bad faith claims brought under 42 Pa.C.S.A. § 8371 “may be assigned

by an insured to an injured plaintiff and judgment creditor….”            Allstate

Property and Cas. Ins. Co. v. Wolfe, 629 Pa. 444, 456, 105 A.3d 1181,

1188 (2014). However, the statute “only permits a narrow class of plaintiffs

to pursue the bad faith claim against a narrow class of defendants.” Ash v.

Continental Ins. Co., 593 Pa. 523, 531, 932 A.2d 877, 882 (2007).

         [F]or a party to succeed on a statutory claim of bad faith,
         that party must fulfill a two-prong test, i.e., [t]o prove bad
         faith, a plaintiff must show by clear and convincing evidence
         that the insurer (1) did not have a reasonable basis for
         denying benefits under the policy and (2) knew or recklessly
         disregarded its lack of a reasonable basis in denying the
         claim. However, … in order to prove bad faith, a party must
         show that the insurer breached its duty of good faith
         through some motive of self-interest or ill-will.

Greene v. United Services Auto. Ass’n, 936 A.2d 1178, 1189 (Pa.Super.

2007), appeal denied, 598 Pa. 750, 954 A.2d 577 (2008) (internal citations

and quotation marks omitted).

      Instantly, Appellant’s complaint included claims for bad faith and torts

arising out of Ms. Cid’s motor vehicle accidents. The complaint also included

a copy of the assignment, which purportedly transferred Ms. Cid’s claims to

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J-A15012-20


Appellant. (See Complaint, filed 8/6/19, at Ex. 1). In response, Appellees’

preliminary objections argued that, inter alia, “such an assignment is void

under Pennsylvania law,” and Appellant “has no standing to assert any claims

against any of [Appellees].” (Preliminary Objections, filed 8/26/19, at 5).

      The trial court noted the assignment amounted to Appellant’s sole basis

for standing, and it determined that the assignment was invalid:

         The United States District Court for the Eastern District of
         Pennsylvania, while applying Pennsylvania law, has
         previously invalidated similar assignments of non-personal
         injury related tort actions, including bad faith claims,
         involving [Appellant] and other former clients. Feingold v.
         Tesone, et al., 2012 WL 3956662 (E.D.Pa. 2012). In fact,
         the … language [in the instant assignment] is identical to
         the invalid assignment in Tesone…. See also Feingold v.
         Liberty Mut. Group, 847 F.Supp.2d 772, 777 (E.D.Pa.
         2012), aff’d, 562 Fed.Appx. 142 (3d Cir. 2014)
         (unpublished) (“A disbarred attorney cannot rely on a
         contingent fee agreement to pursue on his own behalf an
         unliquidated tort claim of a former client under [Section]
         8371. …”).

(Trial Court Opinion at 8).

      Here, we cannot say the court erred. See Hedlund, supra (prohibiting

assignment of all tort claims arising from personal injury, and allowing

assignment of negligence and breach of contact claims arising from legal

services only). Additionally, regarding the bad faith claim, our review of the

record leads us to agree with McCormick and Erie’s contention that the

complaint does not include sufficient factual averments regarding how Erie

acted unreasonably and in bad faith.    (See Complaint at ¶¶ 91-104).         As

Appellees recognize, the complaint contains “either simple reiterations of the

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J-A15012-20


standard of proving bad faith or bald allegations that the standard has been

breached.” (McCormick and Erie’s Brief at 24). On this record, the court did

not err in sustaining Appellees’ preliminary objections. See In re Nadzam,

supra; Marks, supra.

      In his second issue, Appellant argues the trial judge engaged in

prejudicial conduct towards him in this case and others. Specifically, Appellant

contends Appellees did not properly serve McCormick’s preliminary objections.

Appellant avers the trial judge knew Appellant did not have access to the

electronic filing system and ignored Appellant’s requests “that pleadings be

served upon him ‘the old fashioned way.’” (Appellant’s Brief at 22). Appellant

also claims the trial judge “was rude and disrespectful to [Appellant], while

being openly solicitous and friendly with defense counsel.”       (Id. at 23).

Appellant concludes this Court should remand the matter and transfer it to an

administrative judge for an evidentiary hearing to examine the trial judge’s

conduct. We disagree.

      Regarding the conduct of trial judges, this Court has noted:

         The judge occupies an exalted and dignified position; he is
         the one person to whom the jury, with rare exceptions,
         looks for guidance, and from whom the litigants expect
         absolute impartiality. To depart from the clear line of duty
         through questions, expressions, or conduct, contravenes
         the orderly administration of justice.

DiMonte v. Neumann Medical Center, 751 A.2d 205, 210 (Pa.Super. 2000)

(internal citations omitted).

      Instantly, the certified record contains no evidence of questions,

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J-A15012-20


expressions, or conduct on the part of the trial judge that contravened the

orderly administration of justice. See id. (remanding for evidentiary hearing

where, inter alia, trial judge left bench and participated in phone calls during

trial). At this stage of the proceedings, where we review the complaint and

all reasonable inferences therefrom, Appellant’s self-serving accusations

regarding the trial judge’s demeanor do not warrant relief.        See Marks,

supra; DiMonte, supra.

      Additionally, Appellant’s grievances about service of the preliminary

objections are unfounded. The record reveals McCormick served Appellant

with preliminary objections by mail on two occasions.

         Attached to [Appellees’] preliminary objections is a
         certificate of service, indicating [Appellant] was served a
         copy by mail to PO Box 60171, Philadelphia PA, 19102. This
         is the address filed with the Office of Judicial Records as
         [Appellant’s] address as well as the address referenced on
         [Appellant’s] own letterhead. On September 4, 2019,
         counsel for [McCormick] filed a praecipe to attach an
         amended certificate of service. The amended certificate
         indicated counsel served [Appellant] a copy of their
         preliminary objections, along with all accompanying
         memorandum of law and exhibits, for the second time on
         September 4, 2019. Yet, [Appellant], in his answer to
         preliminary objections, still asserts he was never properly
         served.

(Trial Court Opinion at 4-5) (some capitalization omitted).

      Appellant listed “PO Box 60171” as his address in the pro se complaint

and accompanying civil coversheet.       McCormick accomplished service by

mailing the preliminary objections to Appellant at this address. See Pa.R.C.P.

440(a)(2)(i) (allowing service of legal papers “by mailing a copy to or leaving

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J-A15012-20


a copy for the party at the address endorsed on an appearance or prior

pleading or the residence or place of business of the party,” if there is no

attorney of record). Consequently, Appellant is not entitled to relief on his

second issue.

      In his third issue, Appellant contends Appellees filed summary judgment

motions in one of the parties’ related cases, “seeking nullification of

[Appellant’s] assignment on grounds identical to those advanced in the

present preliminary objections….” (Appellant’s Brief at 26). Appellant claims

a different jurist rejected Appellees’ argument in the related case, and the trial

judge in the instant matter violated the coordinate jurisdiction rule by

sustaining preliminary objections based upon the same theory of relief. On

this basis, Appellant concludes the trial court erred in dismissing his complaint

with prejudice.

      Before addressing Appellant’s substantive claim, we must consider

whether Appellant preserved the issue. See Pa.R.A.P. 1925(b)(4)(vii).

         Pa.R.A.P. 1925(b) provides that a judge entering an order
         giving rise to a notice of appeal may enter an order directing
         the appellant to file of record in the trial court and serve on
         the judge a concise statement of the errors complained of
         on appeal…. Rule 1925 also states that [i]ssues not included
         in the Statement and/or not raised in accordance with the
         provisions of this paragraph (b)(4) are waived.              In
         Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306
         (1998), our Supreme Court held that from this date forward,
         in order to preserve their claims for appellate review,
         [a]ppellants must comply whenever the trial court orders
         them to file a Statement of Matters Complained of on Appeal
         pursuant to Rule 1925. Any issues not raised in a 1925(b)
         statement will be deemed waived. This Court has held that

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J-A15012-20


        [o]ur Supreme Court intended the holding in Lord to
        operate as a bright-line rule, such that failure to comply with
        the minimal requirements of Pa.R.A.P. 1925(b) will result in
        automatic waiver of the issues raised.

U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Trust Fund v.

Hua, 193 A.3d 994, 996-97 (Pa.Super. 2018) (internal citations, quotation

marks, and emphasis omitted).

     Instantly, Appellant’s Rule 1925(b) statement preserved the following

claims for appeal:

        1) [The trial judge] has been prejudiced to [Appellant]
        and/or his former clients for an extended period of time.

        2) [The trial judge] has repeatedly gone out of his way to
        involve himself in matters in which [Appellant] and/or his
        former clients are parties.

        3) [The trial judge] improperly [sustained] preliminary
        objections, despite the fact that [Appellees] failed and
        refused to provide copies of same to [Appellant] for
        response.

        4) [The trial judge] improperly [sustained] preliminary
        objections to one party that [Appellant] possessed
        judgment against and to another that had answered the
        complaint.

        5) The complaint, viewed in the light most favorable to
        [Appellant], adequately set forth a factual and legal basis
        for relief upon all causes of action alleged therein.

(Rule 1925(b) Statement, filed 12/4/19, at 1-2).

     Although the Rule 1925(b) statement generally challenges the trial

court’s dismissal of the complaint, Appellant did not include a specific

averment concerning application of the coordinate jurisdiction rule.      As


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Appellant failed to preserve this claim by first raising it in his Rule 1925(b)

statement, we deem the argument waived. See Hua, supra. Accordingly,

we affirm the order sustaining Appellees’ preliminary objections and

dismissing Appellant’s complaint with prejudice.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/14/20




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