J-A09036-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ALLEN FEINGOLD                         :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 STATE FARM INSURANCE COMPANY           :   No. 2340 EDA 2018

              Appeal from the Order Entered August 1, 2018
   In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): 003216 July Term, 2018

 RUTH WALLACE, JOHN WALLACE,            :   IN THE SUPERIOR COURT OF
 WILLIAM WALLACE AND JAMIE              :        PENNSYLVANIA
 WALLACE                                :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 STATE FARM MUTUAL AUTOMOBILE           :   No. 2833 EDA 2018
 INSURANCE COMPANY                      :
                                        :
                                        :
 APPEAL OF: ALLEN FEINGOLD              :

            Appeal from the Order Entered September 5, 2018
   In the Court of Common Pleas of Philadelphia County Civil Division at
                    No(s): April Term, 2001, No. 02380


BEFORE:    KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                         FILED MAY 17, 2019

     Allen Feingold (Feingold) appeals from the orders of the Court of

Common Pleas of Philadelphia County (trial court) dismissing his complaint as




____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A09036-19


frivolous under Pa.R.C.P. 240(j)(1) as well as denying his motion to intervene.

We affirm.

       Both of these consolidated appeals involve a disbarred former attorney

attempting to recover against an insurer based on a purported assignment of

claims from his former clients. In 1995, John, William and Jaime Wallace (the

Wallaces) were in a car accident. The Wallaces later hired Feingold to be their

personal injury attorney.         In 2001, Feingold filed a petition to compel

arbitration on the Wallaces’ underinsured motorist (UIM) claims against their

insurer, State Farm Mutual Automobile Insurance Company (State Farm).1

Two years later, an arbitration panel determined that the Wallaces suffered

$9,500 in damages.         Because the third-party motorist’s liability coverage

exceeded that amount, State Farm did not pay the Wallaces’ UIM arbitration

award.    In 2005, the Wallaces settled their claims against the third-party

motorist for $15,000. Feingold was disbarred in 2008.

       On July 27, 2018, Feingold file a pro se complaint against State Farm

raising claims of breach of contract and bad faith because State Farm failed

to pay the $9,500 the arbitration panel found were the damages suffered by

the Wallaces.      Feingold attached to his complaint a purported agreement

between himself and the Wallaces. In the agreement, the Wallaces assigned


____________________________________________


1The Wallaces’ mother, Ruth Wallace, was also involved in the accident and a
plaintiff in the petition to compel arbitration, but her UIM claim was settled
before arbitration.


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to Feingold 100% of any claims they had against State Farm as compensation

for   his   past   work   and   expenditures    on   their   behalf.    Feingold

contemporaneously filed a petition to proceed in forma pauperis (IFP) with the

complaint.    Three days later, the trial court entered an order that denied

Feingold IFP status and dismissed his complaint as being frivolous under

Pa.R.C.P. 240(j)(1).

      On August 3, 2018, Feingold filed a notice of appeal of the trial court’s

dismissal of his complaint. That same day, he also filed a motion to intervene

on the long-dormant docket for his 2001 motion to compel arbitration. In his

motion, Feingold requested leave to file a motion to recover the unpaid

arbitration award, interest, costs and sanctions against State Farm. He also

attached the same purported assignment by the Wallaces that he filed with

his dismissed complaint.     After the trial court denied Feingold’s motion to

intervene, Feingold filed another appeal which this Court consolidated with his

appeal from the dismissal of his complaint.

      Feingold now raises three issues for our review:

      1.     Whether the trial court erred in dismissing [Feingold’s]
             petition for IFP status in No. 2340 [EDA 2018]?

      2.     Whether the trial court abused its discretion and erred as a
             matter of law in dismissing [Feingold’s] complaint in No.
             2340 [EDA 2018] as frivolous?

      3.     Whether the trial court erred in denying [Feingold’s] petition
             to intervene in the action at No. 2833 [EDA 2018]?




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       We first address if the trial court erred in dismissing Feingold’s petition

for IFP status that he filed with his complaint.2 He raises two arguments in

support of this claim. First, he faults the trial court for dismissing his IFP

petition and complaint in the same order, arguing that Pa.R.C.P. 240(j)(1)

requires the determination of frivolity to be undertaken before consideration

of IFP status. Second, he claims the trial court abused its discretion or erred

in concluding he was not entitled to IFP status.

       Rule 240(j)(1) of the Pennsylvania Rules of Civil Procedure provides:

       If, simultaneous with the commencement of an action or
       proceeding or the taking of an appeal, a party has filed a petition
       for leave to proceed in forma pauperis, the court prior to acting
       upon the petition may dismiss the action, proceeding or appeal if
       the allegation of poverty is untrue or if it is satisfied that the
       action, proceeding or appeal is frivolous.

Pa.R.C.P. 240(j)(1).

       Feingold’s initial argument is that the trial court did not comply with the

Rule because the trial court’s order denied him IFP status in the sentence

before dismissing his complaint, while the Rule requires that the complaint be

dismissed before the IFP status is denied.       This argument is way beyond

frivolous. As this Court has observed, Rule 240(j) allows trial courts to make

their IFP and frivolity determinations simultaneously. See, e.g., Conover v.


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2 “In reviewing a trial court’s resolution of an application to proceed in forma
pauperis, we reverse only if the court abused its discretion or committed an
error of law.” Amrhein v. Amrhein, 903 A.2d 17, 19 (Pa. Super. 2006)
(quotation omitted).


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Mikosky, 609 A.2d 558, 560 (Pa. Super. 1992) (“[I]f upon consideration of

an in forma pauperis petition the trial court determines that the underlying

claim in the complaint, procedure or appeal is frivolous, the trial court should

dismiss that claim and expressly state so in its order.”).      Feingold cites to

Ocasio v. Prison Health Services, 979 A.2d 352 (Pa. Super. 2009), which

involved a trial court that determined a complaint to be frivolous before it

denied IFP status. However, the claim that Feingold seeks to raise—that a

court can be divested of jurisdiction based on the order in which it determines

IFP and frivolity—was not involved in Ocasio. Indeed, nothing in our Ocasio

decision suggests that a trial court’s determination of frivolity and IFP status

cannot be made at the same time.

      Moreover, we find no abuse of discretion in the trial court’s

determination concerning the underlying merits of Feingold’s request for IFP

status. “A party who is without financial resources to pay the costs of litigation

is entitled to proceed in forma pauperis.” Pa.R.C.P. 240(b). A trial court “has

considerable discretion in determining whether a person is indigent for

purposes of an application to proceed in forma pauperis.” D.R.M. v. N.K.M.,

153 A.3d 348, 351 (Pa. Super. 2016) (quotation omitted).

      In this case, the trial court explained its reasons for denying Feingold’s

IFP petition:

      Here, [Feingold] failed to demonstrate a lack of financial resources
      to pay the costs of litigation. [Feingold] previously filed an IFP
      Petition with this court on January 17, 2018. After a hearing, this
      court denied the IFP Petition.       The IFP Petition [Feingold]

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       submitted in this case represented no change in [Feingold’s]
       ability to pay the costs of litigation. [Feingold] indicated he
       receives $2,513.00 per month in social security benefits, which
       equates to $30,156 per year. Although [Feingold] alleges two
       individuals are dependent upon him for support, [Feingold]
       remains far above the federal poverty line. [Feingold] does not
       appear to have difficulty obtaining the necessities of life.

See Trial Court Opinion, 10/10/18, at unnumbered 8-9 (footnote omitted).

       Feingold claims the trial court based its determination on his interest in

a condominium, but this is belied by the trial court’s above reasoning, which

was based on Feingold’s social security benefits. Further, Feingold attempts

to rely on IFP orders in other cases in which he was permitted to proceed IFP

status. We find this unavailing as those decisions have no bearing on the trial

court’s own IFP determination.

       Next, Feingold argues that the trial court erred in dismissing his

complaint as frivolous under Pa.R.C.P. 240(j)(1). He also contends that even

if the frivolity determination was correct, the trial court should have granted

leave to amend the complaint rather than dismissing it.3

       “A frivolous action or proceeding has been defined as one that lacks an

arguable basis either in law or in fact.” Pa.R.C.P. 204(j)(1), at Note (citation

and internal quotation marks omitted). An action is considered frivolous under


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3 “Appellate review of a decision dismissing an action pursuant to Pa.R.C.P.
240(j) is limited to a determination of whether an appellant’s constitutional
rights have been violated and whether the trial court abused its discretion or
committed an error of law.” Bell v. Mayview State Hosp., 853 A.2d 1058,
1060 (Pa. Super. 2004).


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Rule 240(j), “if, on its face, it does not set forth a valid cause of action.”

Ocasio, 979 A.2d at 354 (citation omitted).

      The first claim that Feingold raised in his complaint was for breach of

contract. To state a claim for breach of contract, a plaintiff must establish:

“(1) the existence of a contract, including its essential terms; (2) a breach of

a duty imposed by the contract; and (3) resulting damages.”           Telwell v.

Grandbridge Real Estate Capital, LLC, 143 A.3d 421, 427 (Pa. Super.

2016) (quotation omitted).

      In finding this claim frivolous, the trial court explained that Feingold did

not demonstrate the existence of a contract between the Wallaces and State

Farm, failing to attach the contract to his complaint or even include its

essential terms.   See Trial Court Opinion, 10/10/18, at unnumbered 5-6.

Moreover, the trial court noted, Feingold did not allege with any particularity

the damages suffered by the alleged beach. See id. at 6. Based on our own

review of the July 27, 2018 complaint, we agree with this analysis and find

that the trial court did not abuse its discretion or err in finding that the

complaint failed to state a claim for breach of contract.

      We find the same as to Feingold’s claim for bad faith. An insured has a

cause of action “if the court finds that the insurer has acted in bad faith toward

the insured[.]” 42 Pa.C.S. § 8371. To prove a bad faith claim, the insured

must present clear and convincing evidence that (1) the insurer did not have

a reasonable basis for denying benefits under the policy, and (2) the insurer


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J-A09036-19


knew or recklessly disregarded its lack of reasonable basis in denying the

claim. See Rancosky v. Washington Nat. Ins. Co., 130 A.3d 79, 92-93

(Pa. Super. 2015).

      Based on our review of his complaint, Feingold failed to allege either

requisite element. First, Feingold averred that after the UIM arbitration award,

State Farm informed him that it did not believe the Wallaces were entitled to

UIM damages under their policy. Feingold’s complaint did not allege that State

Farm was without a reasonable basis for denying benefits. Second, Feingold

averred only that State Farm did not advise him of a specific reason for

denying the Wallaces UIM claims. This is not sufficient to demonstrate that

State Farm knew or recklessly disregarded its lack of a reasonable basis for

denying the claim. Accordingly, we find no abuse of discretion or error in the

trial court’s determination that the bad faith claim was frivolous.

      Further, we find no abuse of discretion in the trial court declining to

allow Feingold to amend his complaint. The trial court noted that the statute

of limitations had long expired for both breach of contract, 42 Pa.C.S. § 5525

(four years), and bad faith, 42 Pa.C.S. § 5524 (two years). Here, Feingold

filed his complaint more than 23 years after the Wallaces’ accident and 13

years after all of the Wallaces had turned at least 18 years old. Feingold’s

brief does not show how a more specific amended complaint would overcome

the statute of limitations.




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       Last, Feingold argues that the trial court erred in denying his motion to

intervene.4 Under Pennsylvania Rule of Civil Procedure 2347, there are four

classes of persons that may intervene during the pendency of an action:

       (1) the entry of a judgment in such action or the satisfaction of
       such judgment will impose any liability upon such person to
       indemnify in whole or in part the party against whom judgment
       may be entered; or

       (2) such person is so situated as to be adversely affected by a
       distribution or other disposition of property in the custody of the
       court or of an officer thereof; or

       (3) such person could have joined as an original party in the action
       or could have been joined therein; or

       (4) the determination of such action may affect any legally
       enforceable interest of such person whether or not such person
       may be bound by a judgment in the action.

Pa.R.C.P. 2347. Feingold contends that he would fall within the fourth class

based on the Wallaces’ assignment of claims to him against State Farm.

However, in so arguing, Feingold fails to address how he would be able to

avoid the statute of limitations for any of the UIM claims for which he sought

leave to file. The trial court explained in its Pa.R.A.P. 1925(a) opinion:

       [T]he determination of this action would not affect “any legally
       enforceable interest” of [Feingold] because the applicable statute
       of limitations barred any breach of contract action regarding [UIM]
       benefits and any insurance bad faith action in this case. More
       specifically, [the Wallaces] settled their claims against the
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4 “It is well established that a question of intervention is a matter within the
sound discretion of the trial court and absent a manifest abuse of such
discretion, its exercise will not be disturbed on review.”                 First
Commonwealth Bank v. Heller, 863 A.2d 1153, 1155 (Pa. Super. 2004)
(quotation omitted).

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      underinsured motorist in 2005. Therefore, [the Wallaces] had
      until 2009 to bring an action against [State Farm] seeking
      compensation for [UIM] benefits under their insurance policy.
      Neither [the Wallaces] nor [Feingold] (via the alleged assignment)
      did that. Instead, [Feingold] brought an action against [State
      Farm] nine years after the statute of limitations barred such a
      breach of contract claim.

      Additionally, if [Feingold] argues that [State Farm] committed bad
      faith by not paying [UIM] benefits to [the Wallaces] after [they]
      settled with the underinsured motorist in 2005, then [the
      Wallaces] had until 2007 to bring a bad faith claim. Neither [the
      Wallaces] nor [Feingold] (via the alleged assignment) did that.
      Instead, [Feingold] brought an insurance bad faith action against
      [State Farm] eleven years after the statute of limitations had
      barred such a claim.         As such, [Feingold] had no “legally
      enforceable interest” entitling him to intervene in this matter.
      Therefore, the trial court properly denied [Feingold’s] Motion to
      Intervene.

Trial Court Opinion, 10/15/18, at unnumbered 4. Because Feingold has not

provided any discussion that would rebut this analysis, we discern no abuse

of discretion in the trial court denying his motion to intervene.

      Orders affirmed.    Application to Substitute Paginated Supplemental

Reproduced Record granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/19




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