J-A33044-15

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

ALLEN FEINGOLD,

 Appellant

v.

ELIZABETH BRODY AND MARJORIE S. 

YELON,

 Appellees

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 828 EDA 2015

Appeal from the Order Entered February 18, 2015,

in the Court of Common Pleas of Philadelphia County, 

Civil Division at No(s): No. 02877 January Term, 2015

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 05, 2016

Allen Feingold (Appellant) appeals pro se from an order dismissing his 

complaint as frivolous pursuant to Pa.R.C.P. 240(j)(1). We affirm.

On January 23, 2015, Appellant filed a motion to proceed in forma 

pauperis along with a complaint against Elizabeth Brody, Marjorie S. Yelon 

(collectively, Appellees), the Estate of Betty Sosin, and the Estate of Herman 

Sosin. In the complaint, Appellant alleged that Betty and Herman Sosin 

retained Appellant to represent them pursuant to a contingency fee 

agreement in litigation resulting from a 2005 elevator accident in which 

Betty Sosin sustained serious personal injuries. Complaint, 1/23/2015, at 

¶¶7-10. According to the complaint, Appellant spent “hundreds of hours” on 

the litigation; then, “[w]ith the permission of the Sosins,” Appellant 
J-A33044-15

- 2 -

transferred the case to his colleague, Elliott Tolan, Esquire.1 Id. at 

unnumbered page 3-4, ¶¶11-13; unnumbered page 4, ¶12.2

Appellant further alleged that Attorney Tolan and the Sosins agreed 

that Appellant “possessed a lien and a claim against the proceeds of the 

Sosins’ litigation in the amount of the value of the work he had performed on 

the claim prior to transferring the matter.” Id. at unnumbered page 4, ¶13. 

However, both of the Sosins died prior to trial, Appellees were named 

executrices of the estates, and Appellees refused to cooperate with regard to 

the litigation. Id. at ¶¶15-16. As a result, the litigation was dismissed. Id.

at ¶17. Based on the above, Appellant alleged counts of tortious 

interference with contract, breach of fiduciary duty, and civil conspiracy, 

seeking damages for what Appellant deemed Appellees’ “sabotage” of the 

underlying litigation. Id. at ¶¶ 20-21, 25, 28.

On February 18, 2015, the trial court dismissed Appellant’s complaint 

as frivolous pursuant to Rule 240(j)(1), concluding that Appellant “fail[ed] to 

state a claim for tortious interference with contract, lack[ed] standing to 

pursue a claim for breach of fiduciary duty, and fail[ed] to state a claim for 

civil conspiracy.” Order, 2/18/2015. Appellant filed a motion for 

 

1 Although not mentioned in the complaint, it is undisputed that the transfer 

was spurred by Appellant’s disbarment.

2 Due to an error in the numbering of paragraphs in the complaint, a 

paragraph 12 and paragraph 13 appear on both unnumbered pages 3 and 4. 
J-A33044-15

- 3 -

reconsideration on March 11, 2015, and a notice of appeal on March 20, 

2015.3

On appeal, Appellant presents one issue for our consideration: 

“Whether the trial court erred and/or abused its discretion in dismissing 

[Appellant’s] complaint as frivolous and in denying leave to amend the 

complaint?” Appellant’s Brief at 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 

Hospital, 853 A.2d 1058, 1060 (Pa. Super. 2004).

Rule 240(j)(1) 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). As the note to Rule 240(j)(1) explains, “[a] frivolous 

action or proceeding has been defined as one that ‘lacks an arguable basis 

either in law or in fact.’” Id. at Note (quoting Neitzke v. Williams, 490 

U.S. 319 (1989)). Moreover, “an action is frivolous ‘if, on its face, it does 

not set forth a valid cause of action.’” Bell, 853 A.2d at 1060 (quoting 

McGriff v. Vidovich, 699 A.2d 797, 799 (Pa. Cmwlth. 1997)). “As we 

 

3 The trial court did not rule on the motion for reconsideration.
J-A33044-15

- 4 -

review Appellant’s complaint for validity under Rule 240, we are mindful that 

a pro se complaint should not be dismissed simply because it is not artfully 

drafted.” Id.

The trial court offered the following explanation for dismissing 

Appellant’s complaint as frivolous.

To establish a claim for tortious interference with contract, 

a plaintiff must allege 1) the existence of a contractual 

relationship between the plaintiff and a third party, 2) purposeful 

action on the part of defendant intended to harm the 

relationship, 3) the absence of privilege or justification, and 4) 

actual damages. S[t]oeckinger v. Presidential Fin. Corp. of 

Delaware Valley, 948 A.2d 828, 834 (Pa. Super. 2008). 

[Appellant’s] contractual relationship with the Sosins ended in 

2008 when he was disbarred and turned the file over to Attorney 

Tolan; thus, there was no contractual relationship between 

[Appellant] and the Sosins with which [Appellees] could have 

interfered. Even if [Appellant’s] disbarment did not terminate 

his contractual relationship with the Sosins, the contractual 

relationship terminated when the Sosins passed away. 

Assuming arguendo a contract existed, [Appellees’] decision not 

to pursue the litigation on behalf of the Sosins’ estates is not 

evidence of purposeful action intended to hurt the contractual 

relationship between [Appellant] and the Sosins. As this 

Commonwealth’s appellate courts have made clear, it is the 

litigant’s decision whether to press forward with a case. 

Senyshyn v. Karlak, 299 A.2d 294, 296 (Pa. 1973); Austin J. 

Richards, Inc. v. McClafferty, 538 A.2d 11, 15-16 (Pa. Super. 

1988). Here, [Appellees], as the litigants, chose not to press 

forward with the Sosins’ case, and the Courts of this 

Commonwealth recognize this choice was theirs to make. 

Accordingly, [Appellant’s] claim for tortious interference with 

contract is frivolous because it lacks a reasonable basis in fact 

and law.

[Appellant’s] breach of fiduciary duty claim fails because 

[Appellant] lacks standing to bring such a claim. In his 

Complaint, [Appellant] alleges [Appellees], as executrices of 

Sosin’s estate, owed him, as a creditor, a fiduciary duty to 

maximize the value of the estate. Complaint at ¶¶ 23-24. 
J-A33044-15

- 5 -

Contrary to his assertion, [Appellant] was not a creditor. As the 

factual allegations of [Appellant’s] Complaint make clear, 

[Appellant’s] lien and claim did not vest until there were 

proceeds from the litigation. See Complaint at [unnumbered 

page 4,] ¶ 13 (“Tolan and the Sosins agreed and acknowledged 

[Appellant] possesses a lien and claim against the proceeds of 

the Sosins’ litigation ....”)(Emphasis added). The Complaint also 

clearly alleges there were no proceeds from the litigation. See 

Complaint at ¶ 17 (“ ... the Sosin[s’] litigation was dismissed.”). 

[Appellant’s] lien and claim did not vest because there were no 

proceeds of the litigation; therefore, [Appellant] is not a creditor 

of the Estate of Betty Sosin or the Estate of Herman Sosin. 

Since [Appellant] was not a creditor of the Estate of Betty Sosin 

or the Estate of Herman Sosin, [Appellees], the executrices of 

said estates, did not owe a fiduciary duty to [Appellant]; 

[Appellant] lacks standing to bring a claim for breach of fiduciary 

duty. Finally, [Appellant’s] conspiracy claim was properly 

dismissed because a conspiracy claim cannot exist independently 

of an underlying tort.[4] Here, [Appellant’s] tort claims were 

dismissed as frivolous; therefore, his conspiracy claim must also 

be dismissed as frivolous.

Trial Court Opinion, 3/27/2015, at unnumbered pages 2-4. 

The thrust of Appellant’s argument on appeal is as follows:

Here, an examination of the averments in [Appellant’s] 

complaint reveals that the complaint does not meet the requisite 

standard of frivolity. [Appellant] specifically averred that there 

was a contractual agreement in place providing for [Appellant] to 

be paid for fees and costs he incurred in connection with the 

Sosin case. [Appellant’s] complaint further averred that the 

executrices of the estates intentionally interfered with his right 

to compensation and refused at the last minute to cooperate 

with the [underlying] litigation ... . Although it is alleged that 

[Appellant’s] allegations lack some detail for our fact-pleading 

jurisdiction, [Appellant] has nevertheless pled a plausible claim 

for compensation that has an arguable basis in both fact and 

 

4 See Phillips v. Selig, 959 A.2d 420, 437 (Pa. Super. 2008) (quoting 

McKeeman v. Corestates Bank, N.A., 751 A.2d 655, 660 (Pa. Super. 

2000)) (setting forth the elements of a civil conspiracy claim and further 

explaining that, “absent a civil cause of action for a particular act, there can 

be no cause of action for civil conspiracy to commit that act”).
J-A33044-15

- 6 -

law, even on the current state of the record. At a minimum, he 

has made a sufficient showing of merit such that any perceived 

omission of factual detail is susceptible of cure through 

amendment. There is no record support for the trial court’s 

characterization of [Appellant’s] allegations as “frivolous.”

Appellant’s Brief at 9.

The trial court dismissed Appellant’s complaint because it was 

frivolous, in that the claims therein lacked an arguable basis either in law or 

in fact. The trial court did not, as Appellant’s argument suggests, dismiss 

the complaint on the basis that the claims therein were underdeveloped. In 

merely summarizing the allegations in his complaint, baldly asserting that 

his claims were not frivolous, and arguing that he should have been given an 

opportunity to amend the complaint, Appellant fails to demonstrate how the 

trial court’s frivolity determination requires reversal on the facts Appellant 

did plead, let alone how a more specific amended complaint would enable 

Appellant to state a claim cognizable under the law.5 As such, Appellant has 

not met his burden of convincing us that the trial court’s decision was 

improper. The York Grp., Inc. v. Yorktowne Caskets, Inc., 924 A.2d 

1234, 1246 (Pa. Super. 2007) (“[T]he appealing party bears the burden of 

establishing that the trial court’s decision is erroneous.”). Accordingly, we 

affirm the order of the trial court.

Order affirmed.

 

5

Indeed, Appellant fails to offer meaningful discussion of the legal 

requirements of a prima facie case for any cause of action he attempted to 

plead in his complaint.
J-A33044-15

- 7 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/5/2016