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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

      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




                                     -8-
                                                                                                                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 <lid Allen Feingold represent Ruth Wallace in her UIM lawsuit. Mr. Feingold has never had


              ' Wallace v. Feen'-li, Phila, Ct. Common Pleas, April Tem,.1004 No. 5371 (thfrd·pany /iabmty lawsuit) and
              Wallace v. Staie Fam, Insurance Co .. Phila. Ct. Common Pleas, September Tenn, 1008, No. 1840 (UtM lawsuit],




1.f}.
   · 1
         r   PURSU.\i\•T TO :-'&.. P C.P. :;;3'3(i:·}
                                                                                                        1
                                                                                                        1'
                                                                                                         'i
                                                                                                          l


any interest in Ruth Wallace's UIM lawsuit. Mr. Feingold was disbarred from the practice of         :!11I
                                                                                                    I



                                                                                                    !     11
law in September, 2008 prior lo the filing of Ms. Wallace's UIM lawsuit.                            ·~
       Plaintiffs filed suit against Defendants, David Rhode, The Law Offices of David Rhode                \I

(hereinafter "Rhode Defendants"), Marc Rickles, Joseph Hankins, the Law Firm of Britt.
                                                                                                        ·.1
Hankins & Moughan (hereinafter "Hankins Defendants") and State Farm Mutual Automobile

Insurance Company. The Rhode Defendants represented the defendant in the third-party liability                 l I

lawsuit tiled by Wallace. The Hankins Defendants represented State Frum in Wallace's UIM                           I
                                                                                                               ·i  I

lawsuit. Defendant Rickles. served as the neutral arbitrator in the UIM matter. Plaintiffs'

Complaint alleges several causes of action: Bad Faith against Defendant, State Farm, Breach of

Contract against Defendant. State Farm, an unnamed claim against all Defendants. Abuse of

 Process against all Defendants, Negligent Misrepresentation against all Defendants and Fraud
                                                                                                                       1
                                                                                                                       I



 against all Defendants. See generallv, Plaintiffs' Complaint.
                                                                                                              .j
         Defendants each filed Preliminary Objections to the Complaint. On March 19, 2015.                     . l
 Plaintiffs filed Preliminary Objections to Defendants' Preliminary Objections to the Complaint.
                                                                                                               :l
                                                                                                               : .l
 Plaintiffs submitted only one set of Preliminary Objections in response to the Preliminary
                                                                                                               =           I
 Objections submitted by each Defendant. On April 11. 2015, this Court entered an Order                                    I
                                                                                                                           I
                                                                                                                   . lI
 overruling Plaintiffs' Preliminary Objections to Defendants' Preliminary Objections to the

 Complaint, and ordered that a response to the Preliminary Objections of each Defendant be filed
                                                                                                                   . 1
                                                                                                                   : I
 individually by each Plaintiff within twenty (20.l days of the docketing of the Order. The Order                  . I
                                                                                                                               I

 was docketed on April 22, 2015 and sent to a.JI parties on April 23, 2015 pursuant to Pa.R.C.P.

 :!36(b). Plaintiffs failed lo file a response to any of the Preliminary Objections filed by                                   1   I


                                                                                                                                   Il
                                                                                                                                   l
  Defendants.   On May 20, 20 I 5, this Court entered an Order sustaining all Preliminary Objections

  and dismissing the case with prejudice. This appeal followed.

  ANALYSIS

         Pennsylvania Rule of Civil Procedure l028(a) permits the filing of Preliminary

  Objections limited to the follov,.,inggrounds:

         ( l) lack of ju1isdiction over the subject matter of the action or the person of
         the defendant, improper venue or improper form or service of a writ of
         summons or a complaint;
        (2) failure of a pleading to conform to law or rule of court or inclusion of
        scandalous or impertinent matter;
        (3) insufficient specificity in a pleading;
        ( 4) legal insufficiency of a pleading (demurrer);
        (5) lack of capacity to sue. nonjoinder of a necessary party or misjoinder of
        a cause of action:
        (6) pendency of a prior action or agreement for alternative dispute
        resolution;
        (7) failure to exercise or exhaust a statutory remedy. and
        (8) full complete and adequate non-statutory remedy at law.


 Pa.R.C.P. 1028(a).

        Pennsylvania law requires the court to consider the sufficiency of the cause of action

alleged in a complaint before granting a party's preliminary objections. Schuvlkill Navy v.

Lan!!bord, 728 A.2d 964, 968 (Pa. Super. J 999) quoting Smirh v. McDougall, 365 Pa. Super. 157

( 1987). An order sustaining preliminary objc-clions based solely on the failure of a party to   file ci

timely responsive brief or memorandum of law, without conside1ing whether the complaint

sufficiently pied a cause of action. amounts roan abuse of discretion. Id. citing Smith (citation

omitted). In the instant matter, when presented with the Preliminary Objections filed by

Delendants, this Court applied the appropriate standard of review and accepted as true all well-
I
II
 I          pied material facts set forth in the Complaint. as wel I as all inferences reasonably deduced from

            those facts. National Recoverv Svstems v. Frebraro. 430 A.2d 686 (Pa. Super. J 981 ).
                                                                                                                  'l
                   Pursuant to Pa. R.C.P. 1028(a)(5) Defendants objected to Plaintiffs' Complaint arguing

            Feingold docs not have standing to sue. '·A party seeking judicial resolution of a controversy in

            this Commonwealth must, as a prerequisite. establish that he has standing to maintain the

            action." Nve v. Erie Insurance Exchange. 4 70 A.2d 98, I 00 (Pa. 1983), citing William Penn

     I      Parkin!! GaraQe. Jnc. v. Citv of Pittsburgh. 346 A.2d 269 (Pa. 1975). "As a general matter. the
     I
      I     core of the concept of standing is that a person who is not adversely affected in any way by
       I
            the matter he seeks to challenge is not aggrieved thereby and has no right to obtain a judicial
       I
        I   resolution of his challenge." Pennsvlvania Grune Commission v. Department of Environmental
        I   Resources. 555 A.2d 81'.!. 814 (Pa. 1989). As previously noted. Plaintiffs' claims against

             Defendants included bad faith aaainst
                                            "                                                    -
                                                   Defendant ~ State Farm.. breach of contract against

             Defendant State Farm, an unnamed claim against all Defendants, abuse of process against all

             Defendants. negligent misrepresentation against all Defendants and fraud against all Defendants.

             All allegations stem from the handling of Wallace's UIM matter. There are no allegations within

             the Complaint that Feingold was a party to the UIM litigation, or an insured under the State Farm

             policy. See generallv, Plaintiff's Complaint.    Feingold cannot sustain any cause of action pied

             in the Complaint because he cannot establish standing. Throughout the Complaint, allegations of

             harm to "plaintiff and their counsel" are made. See generallv. Plaintiff's Complaint. Even if this

             Court were to assume that causes of action were pied against Defendants in Feingold's capacity
      us Wallace's attomey', Feingold would still lack standing to sue for allegations of harm arising

      from Wallace's UTM clainr'.

              As to the substantive allegations made in Plaintiffs' Complaint, the Complaint is full of

      outlandish conspiracies of schemes supposedly concocted by State Farm. and advanced with the

      help of the Defendants named in this litigation. to deprive injured claimants of monetary awards

      rightfully owed to them. See generallv. Cornplaint j'[ 1- 70. As this supposed scheme relates co

      Plaintiffs. allegations of breach of contract and bad faith on the part of Defendant, State Farm

      cannot be sustained. The allegations of bad faith in Plaintiffs' Complaint merely states that State

      Farm did not make a good faith effort to resolve or pay the UIM claim. There are no materiaJ

      facts pied as to how State Farm acted in bad faith. Similarly, the breach of contract claim against

...   State Farm alleges that State Farm's "failure to pay full benefits to Plaintiff. even in the face of

       their undisputed obligation to do so, is a breach of contract. .. ,. Plaintiffs' Complaint at C\!79.

       (emphasis added). The allegations are boilerplate averments without any factual support.

               Count III of Plaintiffs' Complaint is an unidentified cause of action against all

       Defendants. Count Ill alleges that Plaintiffs were forced to incur needless litigation costs and put

       forth litigation effort. 1t is also alleged that Plaintiff sustained a loss of business income.




       c This is nor lhe case ns Mr. Feingold was disbarred at the time of Ms. Wallaces UIM litigation.
       : Although there is a signature for Ruth Wallace on the Appeal. this Court has serious concerns that Ms. Wallace is
       an acnve prose litigant in this matter, or if Allen Feingold is acting on her behalf. The address and phone number
        for Ms. Wallace provided on the Appeal is P.O. Box 60171, Philadelphia, PA 19102, (215) 564-3500, which is the
       same contact information provided for Allen Feingold on this Appeal and throughout the underlying matter. The
       contact information provided by Ms. Wallace and Mr. Feingold on this Appeal is the same contact infonnation that
       Mr. Feingold has consistently provided 10 the Court in the past on behat r of his law practice. The Court notes that
       Ms. Wallace's address provided in the Complaint is 2722 Woodsview Drive, Bensalem, PA 19020. A review of
       court dockets reveals that Ms. Wallace has consistently used the Bensalem address as a litigant in the past
I
.I
    1




     !                               Plaintiffs' Complaint at Tli 81-85. There is no legal basis stated for the allegations made in

                                     Count III of the Complaint that could warrant the possibility of relief to Plaintiffs.

                                             Plaintiffs' cannot maintain a cause of action for negligent misrepresentation as pied in


         \                           Count IV of the Complaint A cause of action for negligent misrepresentation requires the

         I                           following elements: ( 1) misrepresentation of a material fact; (2) made under circumstances in
             l
                                     which the party ought to have known its falsity: (3) with an intent to induce another to act on it:

                                     and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation.

                                     Silt-Rite Contractors. Inc. v. The Architectural Studio, 866 A.2d 270. 277 (2005) (citation

                                     omitted). Plaintiffs· Complaint merely states that, '"the aforementioned representations of the
                                                                                                                                               :1:
                                     defendants were made negligently and with reckless disregard for the false and inaccurate nature

                                     of the representations." Plaintiffs· Complaint at "(87. The Plaintiff failed to allege any facts

                                      whatsoever to support their claim for negligent misrepresentation, just baldly stating.
                                                                                                                                               ]
                                                                                                                                               -: ri
                 I
                 I                    ·'[ d]efendants made their communications intending that the Plaintiff and their counsel rely upon        i.\
                                                                                                                                               ..· I

                     I                the accuracy of such communications and they did so rely. to their great detriment."      Id. at 1 89.
                     I
                                      Count IV of the Complaint is void of any factual avennents of these supposed communications,
                                                                                                                                                 :I
                         I
                             I                                                                                                                       I     u
                                      and otters no factual support of the boilerplate statements made.
                                 l                                                                                                                       -~
                                              Next is Count V of Plaintiffs' Complaint for abuse of process. To establish a claim
                                 l
                                      fix abuse of process it must be shown that the defendant ( l) used a legal process against the
                                                                                                                                                         ;\\
                                                                                                                                                         . I
                                      plaintiff (2) primarily   10   accomplish a purpose for which the process was not designed: and (3)

                                      harm has been caused to the plaintiff.      Lerner v. Lerner, 954 A.2d 1229 (Pa. Super. 2008) citing                     l
                                      Shiner v. Moriartv. 706 A.2d 1228 (Pa. Super 1998). Again, Plaintiffs failed to plead facts       10           :.. I     ~
                                      support allegations of abuse of process. Plaintiffs merely state, "the pleadings and motions filed
                                                                                                                                                                   "~i
                                                                                                                                                                    'I
I
I
 I
                                               by the defendants in the Plaintiffs tort litigation were frivolous, fraudulent and without merit,"
·\
                                               ~92 of Plaintiffs' Complaint. Plaintiffs continue on stating, "the pleadings and motions filed by
     I
                                               the defendants in the Plaintiffs tort litigation were not filed for any aim within the lawsuit scope

                                               of such process. but rather to harass and vex the Plaintiff and their counsel by forcing them to

                                               needlessly expend precious financial resources responding to such process." Id. at 193.
         I                                     Plaintiffs simply reiterate the elements of a claim for abuse of process without actually pleading

         II                                    sufficient facts in support thereof. There is no identification of what motions and pleading the

                                               Plaintiffs are referencing and how these documents were used to accomplish anything they were
             I

             I                                 not designed for. Plaintiffs assert the Defendants hoped to extort the dismissal and compromise

                 I                             of Plaintiff's litigation, without so much as an inkling of factual support. Id. at '{!94.

                 I                                     Finally, Plaintiffs' final cause of action pied is fraud. PaR.C.P. I019(b) requires

                     I                          averrnents of fraud to be averred with specificity. The elements of fraud. or intentional
                     I                          misrepresentation, are (1) a representation; (2) which is material to the transaction at hand: (3}
                         I
                         II                     made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4)

                                                with intent of misleading another into relying on it; (5) justifiable reliance on the
                             I
                             I                  misrepresentation; and {6) the resulting injury was proximately caused by the reliance.


                                 II             Presbvterian Medical Center v. Budd, 832 A.2d I 066 (Pa. Super. ::!003) citing Gibbs v, Ernst.

                                                538 Pa. 193, 207 ( 1994). The essence of fraud is a misrepresentation fraudulently uttered with

                                  I             the intent to induce the action undertaken in reliance upon it, to the damage of its victim. Id. al

                                      I         1071 citing Martin v. Hale Products. Inc .. 699 A.2d 1283 {Pa. Super. 1997). Once again,
                                      I         Plaintiffs vaguely reference, "representations of defendants as set forth above were uttered with
                                          I
                                          I     full knowledge of their falsity and with the intent that the plaintiff and their counsel rely




                                           '
     thereon." Plaintiffs' Complaint at <j)97. There is not one specific fact pied by the Plaintiffs

I•   alleging fraud on the part of any Defendant. Plaintiffs cannot sustain a cause of action for fraud

I_   when they have failed to identify any action intentionally taken by any Defendant.

r           Plaintiffs have not pied a single plausible cause of action that could possibly permit

     recovery under the law. The Complaint is one paragraph after the next of factually unsupported

     accusations against Defendants. It is often impossible to discern whether the Plaintiff alleging

     harm is Allen Feingold or Ruth Wallace, and against which Defendant the allegation is being

     made. The Complaint is frivolous and entirely unsupported.

            WHEREFORE the above stated reasons, this Court respectfully requests its Order of
     May 20, 2015 be affirmed.

                                                           BY THE COURT:
                                                                                                          '.
                                                                                                               .
                                                               ~~
                                                          A~NOLD L. NEW, J.


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