J-A29028-19

J-A29029-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EDWIN M. FISCHL 

Appellant

v.

AXA LIFE INSURANCE COMPANY, 

THE EQUITABLE OF COLORADO, INC, 

THE EQUITABLE LIFE ASSURANCE 

SOCIETY OF THE UNITED STATES 

AXA ADVISORS, LLC JOHN 

WALDRON SOURCE CAPITAL, LTD. 

PHILIP SCHULTE RJL GROUP LTD., 

ROBERT J. LINKOWSKI, STEVE 

LINKOWSKI, EQUITABLE OF 

COLORADO INC.-RJL GROUP AXA 

EQUITABLE LIFE INSURANCE 

COMPANY AXA ADVISORSSPAGIONE FINANCIAL, BUCHANAN 

INGERSOLL P.C.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 583 WDA 2019

Appeal from the Order Entered, February 19, 2019,

in the Court of Common Pleas of Allegheny County,

Civil Division at No(s): GD-18-007053.

EDWIN M. FISCHL 

Appellant

v.

AXA LIFE INSURANCE COMPANY, 

EQUITABLE OF COLORADO, INC.-RJL 

GROUP, JOHN WALDRON, PHILIP 

SCHULTE, AXA ADVISORSSPAGIARE FINANCIAL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 890 WDA 2019
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Appeal from the Order Entered, June 11, 2019,

in the Court of Common Pleas of Allegheny County,

Civil Division at No(s): GD-18-007053.

EDWIN FISCHL, III 

Appellant

v.

BUCHANAN INGERSOLL & ROONEY, 

P.C., BUCHANAN INGERSOLL PC, 

LAWRENCE KUREMSKY, ESQUIRE, 

PNC BANK, ANDREA FISCHL, EDWIN 

C. FISCHL, MARTA FISCHL AND 

JACQUELINE EASLEY

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 891 WDA 2019

Appeal from the Order, Entered June 7, 2019,

in the Court of Common Pleas of Allegheny County,

Civil Division at No(s): GD-18-007208.

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 17, 2020

Edwin M. Fischl, III, appeals pro se from orders entered in two related 

cases, which he filed against his parents (Dr. Edwin C. Fischl and Andrea 

Fischl), his sister (Marta Fischl), various attorneys, individuals and entities 

having anything to do with two irrevocable trust agreements established by 

his parents for the benefit of their four children. Mr. Fischl claims the assets 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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of the trusts were mismanaged to his detriment as a potential trust 

beneficiary. For the reasons that follow, we affirm the orders of the trial court 

dismissing his claims. 

Mr. Fischl initially filed two lawsuits in Allegheny County, one in the civil 

division, GD 18-7208 and one in orphans’ court, 7613 of 2018. The orphans’

court matter was transferred to the civil division and became case GD 18-

7053. The two complaints are nearly identical except for the caption. In his 

nearly 200 paragraph Complaint, Mr. Fischl attempts to allege various causes 

of action surrounding a 1989 irrevocable trust agreement and a subsequent 

1990 irrevocable trust agreement. The 1989 agreement’s only asset was a 

life insurance policy on Dr. Fischl, Mr. Fischl’s father (a $1,000,000 policy). 

The 1990 agreement’s only asset was a new life insurance policy on Dr. and 

Mrs. Fischl, (a $500,000 “second-to-die” policy). Mr. Fischl first learned of 

these trust agreements in 2014 when the trustee, his uncle Bernard Easley, 

passed away. Complaint ¶ 54. 

Mr. Fischl believes he suffered financial harm by the lapse of the first 

insurance policy in the 1989 trust. He seeks to recover damages from those 

individuals and entities he believes caused this harm. He listed several counts 

in his Complaint, including Breach of Contract, Violations of the Unfair Trade 

Practices and Consumer Protection Law (UTPCPL), Conversion, Fraudulent 

Misrepresentation, Negligent Misrepresentation, Unjust Enrichment, and “All 

other Claims.” 
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The various defendants all filed preliminary objections to the Complaint 

which the trial court sustained. At case GD 18-7208, Judge Colville initially 

sustained preliminary objections with prejudice as to three counts, but granted 

Mr. Fischl leave to amend as to the remaining counts. Mr. Fischl never filed 

an amended complaint. As a result, a few months later, Judge Ignelzi entered 

judgment for the defendants on the remaining counts. 

At case GD 18-7053, Judge Ignelzi sustained preliminary objections with 

prejudice as to all counts.1 Mr. Fischl filed an appeal as to both cases. This 

court granted a motion to consolidate the appeals on October 1, 2019. Both 

cases were assigned to this panel, who heard argument on December 4, 

2019.2 

We begin by noting that Mr. Fischl’s appellate brief fails to conform to

Rule of Appellate Procedure 2111, which requires an appellant to organize his 

brief in separate, identifiable sections in the following order: 

(1) Statement of jurisdiction.

(2) Order or other determination in question.

____________________________________________

1

Initially, Judge Ignelzi sustained the preliminary objections on February 19, 

2019. Mr. Fischl filed several motions for reconsideration, which the trial 

court denied. In his 1925 (a) opinion, Judge Ignelzi indicates that he held a 

hearing on June, 7, 2019 for both cases, at which time he dismissed all of Mr. 

Fischl’s claims with prejudice. 

2 Fischl has filed Applications for Relief in which he asks this Court to 

incorporate exhibits and submit additional information regarding these 

appeals. Because Fischl’s appeals have been consolidated, we have reviewed 

all pertinent exhibits and other information that appears in the certified record

for both cases. Thus, we deny Fischl’s Applications for Relief.
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(3) Statement of both the scope of review and the standard of 

review.

(4) Statement of the questions involved.

(5) Statement of the case.

(6) Summary of argument.

(7) Statement of the reasons to allow an appeal to challenge the 

discretionary aspects of a sentence, if applicable.

(8) Argument for appellant.

(9) A short conclusion stating the precise relief sought.

(10) The opinions and pleadings specified in paragraphs (b) and 

(c) of this rule.

(11) In the Superior Court, a copy of the statement of errors 

complained of on appeal, filed with the trial court pursuant to 

Pa.R.A.P. 1925(b), or an averment that no order requiring a 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b) was entered.

(12) The certificates of compliance required by Pa.R.A.P. 127 and 

2135(d).

Pa.R.A.P. 2111.

Pursuant to Appellate Rule 2101, if the defects in the brief are 

substantial, the appeal may be quashed or dismissed. Pa.R.A.P. 2101. 

Mr. Fischl is representing himself in this matter. However, a litigant who 

represents himself is not entitled to any special benefit under the rules. In 

O’Neill v. Checker Motors Corp., 567 A.2d 680 (Pa. Super. 1989), our court 

stated:

While this court is willing to liberally construe materials filed by a 

pro se litigant, we note that appellant is not entitled to any 

particular advantage because he lacks legal training. As our 

Supreme Court has explained, any layperson choosing to 

represent himself in a legal proceeding must, to some reasonable 

extent, assume the risk that his lack of expertise and legal training 

will prove his undoing. 

Id. at 682. (citation omitted; some formatting). See also, Hoover v. Davila, 

862 A.2d 591, 595-96 (Pa. Super. 2004) (“A pro se litigant is not absolved 
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from complying with procedural rules.”); First Union Mortgage Corp. v. 

Frempong, 744 A.2d 327, 333 (Pa. Super. 1999) (“A pro se litigant is granted 

the same rights, privileges and considerations as those accorded a party 

represented by counsel; however, pro se status does not entitle a party to any 

particular advantage because of his or her lack of legal training.”).

Although Mr. Fischl attempted to find legal counsel, there is no right to 

counsel in a civil proceeding. U.S. Const. amend. VI. (“In all criminal 

prosecutions, the accused shall enjoy the right . . . to have the Assistance of 

Counsel for his defence.”). He is not entitled to the appointment of counsel 

as he requested. 

Because the trial court addressed the merits of this appeal, and we are 

able to ascertain the basis of Mr. Fischl’s claims, we decline to dismiss or quash 

based on Mr. Fischl’s substantially defective brief. In his concise statement of 

matters to be raised on appeal, Mr. Fischl identified the following issues: 

ISSUES TO BE RAISED ON APPEAL

Dismissal of one or more defendants with prejudice; Consolidation 

of cases; Clarification of Judge Assignment; Transfer issues 

between cases including plaintiff’s orphans’ court case transfer;

Ownership; Official Court Appointment of ownership/ fiduciaries/

administrators needs to be ordered; Significant unlawful 

decreases to the death benefit of the contracts.

Concise Statement, 4/7/19, at 6 (unpaginated). 

Primarily, Mr. Fischl contends that his claims against the defendants 

should not have been dismissed with prejudice. In reviewing a challenge to 
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an order sustaining preliminary objections in the nature of a demurrer, we are 

guided by the following: 

Our review of a trial court’s order sustaining [] preliminary 

objections in the nature of a demurrer is plenary. Such 

preliminary objections should be sustained only if, assuming the 

averments of the complaint to be true, the plaintiff has failed to 

assert a legally cognizable cause of action. We will reverse a trial 

court’s decision to sustain preliminary objections only if the trial 

court has committed an error of law or an abuse of discretion.

Kramer v Dunn, 749 A.2d 984, 990 (Pa. Super. 2000) (internal citations

omitted).

All material facts set forth in the complaint as well as all inferences 

reasonably [deducible] therefrom are admitted as true for [the 

purpose of this review]. The question presented by the demurrer 

is whether, on the facts averred, the law says with certainty that 

no recovery is possible. Where a doubt exists as to whether a 

demurrer should be sustained, this doubt should be resolved in 

favor of overruling it.

Wawa, Inc., v. Alexander J. Litwornia & Assoc., 817 A.2d 543, 544 (Pa. 

Super. 2003) (quotation omitted).

The trial court recognized that dismissing a claim without leave to 

amend is rare. T.C.O., 8/4/19 at 3. However, the court believed this is the 

rare type of case where dismissal is appropriate. Id. “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 on the facts averred.” Id. 

(quoting McGuire v. Shubert, 722 A.2d 1087, 1090 (Pa. Super. 1998). The 

court reviewed each of Mr. Fischl’s purported claims and determined that they 

all lacked merit, and that any opportunity to amend would be pointless.
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We agree with the trial court’s analysis of each of Mr. Fischl’s claims and 

adopt it as our own. T.C.O. 8/14/19 at 4-8 (finding no breach of contract 

claim because Mr. Fischl was not a party or third party beneficiary to any 

contract; no UTPCL claim because Mr. Fischl did not make a purchase of goods 

or services; no conversion claim because there was nothing to steal, since

trust will not be funded until the death of his parents who are still alive;

3 no 

fraud or misrepresentation because Mr. Fischl was not a party to any dealings 

with the defendants, he does not stand in the shoes of his parents, and he did 

not allege claims with particularity; no unjust enrichment because Mr. Fischl 

claimed a written contract existed, and no specific benefit was taken by 

defendants to his detriment; no “other claim” as none is specified).4 

____________________________________________

3 Mr. Fischl claims he is presently entitled to his 1⁄4 share of the cash value of 

the policy. However, in order to distribute the assets of the trust prior to the 

death of his parents, all of the beneficiaries would have to agree. If they do 

not, then Mr. Fischl has no current claim to this asset. The policy is still in 

place, his parents are still alive, and thus, there is no cash from the trust to 

distribute at this time. 

4 As a courtesy, we explain why Mr. Fischl suffered no harm regarding the 

termination of the original life insurance policy purchased. He believes 

because the 1989 trust containing that policy was irrevocable, he must be

entitled to some money. Mr. Fischl fails to understand that although the trust 

was irrevocable, it was never fully funded. The trust’s only asset was an 

insurance policy that was only partially paid for, using money that his parents 

gifted to the trust. However, it was discovered that the trustee purchased the 

policy before the trust was created, and then the trustee transferred the 

policy to the trust. To avoid possible federal income tax issues if Dr. Fischl 

died within the first 3 years of that policy, the trust had to be created first and 

the policy purchased second. When the lawyer who was advising Dr. and Mrs. 

Fischl realized the timing of events with the Fischl’s 1989 trust, he immediately 

contacted them to advise them of the risks involved should the trustee 
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In his brief, Mr. Fischl also complains generally about several other

recent issues involving the 1990 trust, including: 1) the appointment of his 

sister, Marta Fischl, as the replacement trustee following the death of the 

original trustee, Bernard Easley, in 2014 and the renunciation of the successor 

trustee, Jacqueline Easley;5 2) the trustee using dividends from the policy to 

pay current premiums due; and 3) the lack of notices of “Crummey rights” to 

the beneficiaries.

6

 Although mentioned cursorily in his brief, none of the 

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continue with the original insurance policy. Letter 5/5/1990 at 2-4. It 

appears, that upon advice of counsel, the trustee allowed the first policy to 

lapse. This was within the trustee’s discretion. Since this policy was cancelled 

within the first year it was purchased, the cash value would have been worth 

less than the premiums paid. Moreover, the law firm that discovered the 

error with the establishment of the 1989 trust refunded the money that Dr. 

and Mrs. Fischl gifted to pay for premiums on the initial policy, and the trustee 

used the refunded money to purchase the substitute policy placed in the 1990 

trust. Letters 8/24/90 and 4/24/91. Again, the trustee had full discretion to 

allow the first policy to lapse and to purchase the new policy for the 1990 

trust, even though the second policy was not the same type of policy and had 

a different death benefit. As such, the beneficiaries of the 1989 trust suffered 

no financial harm. It is unclear whether the letters referenced here are part 

of the certified record. These letters had no bearing on our decision; we 

reference them solely to explain to Mr. Fischl why he has no viable claim 

regarding the lapse of the policy in the 1989 trust. 

5 Mr. Fischl also claims he should be appointed as the trustee/special fiduciary.

6 “Crummey rights” come from the landmark 1968 Ninth Circuit decision, 

Crummey v. Commissioner, 397 F.2d 82 (9th Cir. 1968). To have a present 

interest under Crummey, a trust beneficiary must be legally and technically 

capable of immediately possessing the gifted property, and have a reasonable 

opportunity to do so. A trust agreement usually requires the trustee to provide 

to each beneficiary a notice of withdrawal rights within a reasonable time after 

any gift subject to a withdrawal right is made to the trust. Indeed, the 

1990 trust provides for these notices at §1.2, for each year in which either 
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counts in Mr. Fischl’s Complaint alleged a specific cause of action with respect 

to any of these issues. Moreover, Mr. Fischl does not develop any argument 

regarding these issues in his brief, and he cites no authority for his position. 

As such we deem any argument on these issues to be waived. Hawkey v. 

Peirsel, 869 A.2d 983 (Pa. Super. 2005) (stating failure to cite to relevant 

authority resulted in waiver of issue presented on appeal). 

The parties are directed to attach a copy of the trial court opinion to this 

decision in the event of future proceedings. 

Applications for Relief denied. Orders affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/17/2020

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grantor makes a contribution of property to the trust. Because it does not 

appear that any gifts were made to the trust since the original life insurance 

policy was purchased, the trustee did not have to provide Mr. Fischl or the 

other beneficiaries any notice of withdrawal rights. 
Circulated 01/08/2020 03:39 PM

IN THE C.OURT OF CO.Ml\'ION PLEAS 

OF 

ALLEGHENY COUNTY, PENNSYLVANIA 

EDWINM. FISCHL JII, 

Plaintiffs; 

v. 

AXA LIFE INSURANCE COMPANY, 

EQUit ABLE OF COLORADO, INC. -.RJL 

GROUP, 

JOHN WALDRON, PHILIP SCHUL TE, 

AXA ADVlSORS-SPAGIARE . 

FINANCIAL, 

Defendants, 

EDWIN FISCHL, nr, 

Plaintiff, 

vs. 

BUCHANAN INGERSOLL & ROONEY, 

P.C.,.BUCHANAN.INGERSOLL PC, 

LAWRENCE KUREMSKY, ESQU�RE, 

PNC BANK, ANDREA FISCHL, EDWIN 

c FISCHL, MARTA FISCHL, .and . 

JACQUELINE EASLEY, 

Defendants. 

CIVIL .DIVISlON 

G.D. No, 18-007053 

GD No. l 8-007208 

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Opinion 

Factual Summarv 

The tactual background of this matter is somewhat convoluted .. Ori November 9, 2018, 

Plaintifffiled a 200..:paragraph complaint alleging breach of contract, violation ofUnfair Trade 

Practices and Consumer Protection Law, conversion, fraudulent misrepresentation, negligent 

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misrepresentation, unjust enrichment, and "all other claims." In his complaint, Plaintiff 

.incorporates allegations and fads regarding a. separate case docketed at GD 18- 7208 of which 

this Court's colleague, the Honorable Robert Colville initially retained jurisdiction', which was 

subsequently transferred to this Courtby Order ofAdministratlve Judge Christine Ward. The 

complaints. are nearly identical save for the caption. Case GD 18· 7053 initiated as an Orphans 

Courtmatterwhichwas subsequently transferred to the Civil Division by Administrative Judge 

Lawrence O 'Toole, Since this time Plaintiff has: filed a plethora of motions requesting transfers 

between divisions, to be appointed a trustee, and several appeals .. The Plaintiff has made a habit 

of filing multiple motions with several differentjurists, as a result the docket in this case is. selfexplanatory. 

As far asthis Court is.able to discern, Mr. Fischl believes he is (possibly) a beneficiary of 

an irtevocable trust established by his. parents. This trust is to be funded by the life insurance 

proceeds. of his parents. Mr. Fischl' s parents (at the time of the writing of this opinion) are not 

deceased. There have been two trusts. The first trustwas established in 1989 and was later 

dissolved upon the creation of the subsequent, and present, trust in J990. Plaintiff is of the belief 

the old trust would have been more profitable than the new trust, and allegedly this W!iS known 

by the Defendants in this case. Each Defendant was.in someway involved in the trust.as.an 

I Judge Colville has since transferred to the Criminal Division: 
administrator, servicer, issuer; lawyer; etc. Plaintiff was never a party to any of'the contractsnor 

did he serve in any capacity other than a future beneficiary of the trust. Despite the dissolution of 

the 1989 trust, Mr. Fischl appears to be of the belief it contains a great deal of money of which 

he is entitled to a share. Plaintiff. s complaint is so nonspecific> as to render this Court unsure of 

what assets Plaintiff believes he is entitled .. 

Procedural History 

' As a preliminary matter, this Court must note this case presents as nothing short of a 

procedural "train wreck/'1vlr. Edwin M. Fischl ("Plaintiff') has two docket.numbers/cases which 

he has at times.tried to litigate as one. This has resulted inmotions, decisions.and orders before 

multiplemembers of the. bench, In an attempt to achieve uniforrnity and clarity iii the matter the 

Admiaistretive Judge of the Civil Division assigned all of Plaintiff's matters (both GD 18,.7208 

and GD 18- 7053) to this member of the Court (or disposition .. The docket.in this case largely 

speaks for itself. 

Case GD 18- 7208 

On March 26, 2019, this Court's colleague, the Honorable Robert Colville, sustained 

. . 

Defendant's Preliminary Objections as to Counts I,Jl; and VU of Plaintiffs pro-se complaint. 

Plaintiff was, granted leave to file an amended complaint as to all remaining counts. Despite the 

myriad .of filings at this docket number, Plaintiff never filed an amended complaint. This Court 

entered judgmentfor Defendants on the.remaining counts on June 7, 2019. 

Case GD 18�7053 

On February 19, 2019,.after consideration of briefs and oral argument, this Court 

granted/sustained'Defendant's Preliminary Objections and dismissed Plaintiff's pro-se complaint 

With prejudice at GD 1.8:.705.3. It should be noted Plaintiff w�� pr�setit before the argument but 
Ieftthe room before his case was called.As evidenced hr the April 5; 2019 order of this Court's 

colleague in the GD 18- 7208 matter, this. is something of a habit with Mr. Fischl. Decker Entry 

#57. fa his Order, Judge Col vi He made it quite clear if the Plaintifffails to. appear for scheduled 

motions he would.suffersanctions. 

On February 26. March 4, and M'.lich25, 2019, Plaintiff filed "For BmergencyMotio» 

· Reconsideration and Motion for.Clarification of Order.'' On March 25, 2019, Plaintiff also filed 

"For Leave to File the Appeal Nual Pro Tune (sic)" as well as. a request to proceed in forma 

pauperis. On March 25. 2019� this Court granted Plaintiff's request to file with in forma.pauperis 

status as well as reinstating his rights mine: pro tune. The same day, this Court denied Plaintiff.' s 

' 

Motion for Reconsideration. On March 27, 2019; this Court directed Plaintiff tofile a 1925(b) 

statement. Plaintiff complied timely on April 8� 2019. On March 27. 2019, Plaintiff filed an 

"Emergency Motion to Appoint" which was denied on the same day. Plaintiff would eventually 

discontinue .his first appeal. 

In anattemptto clarify Plaintiff's position and.get all parties "on the same page," this 

Court held a hearing on June 7 � 2019 for both cases. Following this hearing, all of Plaintiffs 

claims were dismissed with. prejudice'. Plaintiff timely appealed, 

Argument 

The Court dismissed Plaintiff's claims on preliminary objections. This Courtis folly 

aware dismissal is rare, howeverthis is the rate case where dismissal is appropriate; "To. be clear 

and.freefrom doubt that dismissal is appropriate, it must appear with certainty that the law 

would not permit recovery by the plaintiff on the facts averred, u Mciluire v, Shubert; 722 A.2d 

1087, I090(Pa. Super.1998)� ThisCourtisclear and free from doubt and the Plaintiff's 

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complaints faced dismissal in these cases for a.myriad ofreasons which this Court will 

enumerate below; 

Failure to File Amended Complaint irt GDJS-7208 

Perhaps the most glaring reason for dismissal. of the action at GD l8�7208 is Plaintiffs 

failure to file an amended complaint. Pursuant to Pa.R.C.P l02�(e): ''If the filing of an 

amendment, an amended pleading, or a new pleading is allowed or required.It shall be filed 

within twenty days after notice of the order or withinsuch other time the Court shall fix:" Judge 

Colville granted.preliminary objections in the GD 18;.7208 matter onMarch26, 2019 and 

allowed Plaintiff to amend (if he could); This means Plaintiff had until roughly April 25, 2019 to 

either file.an amended complaint or request an.extension, ArgumentTranscrfpt ("A.T/')June 

7, 20U> at PlS, L14'-16. Even if this Court were to grant Plaintifffurtherleave to.amend, he 

would be unable to correct the fatal flaws fa these cases; 

Plaintiff is Not A Party to Any Contract 

When reviewing preliminary objections, facts that arewell-pleaded, material, and 

'· .· . . . 

relevantwillbe taken as true-together with reasonable inferences. Mellon BankN.A. v. Fabinyi, 

6S.OA.2d 895. 899. (Pa. Super'. 1994). Preliminary objections in the nature of.a demurrer should 

be granted where the contested pleading is legally insufficient. Caltagirone v: Cephalon, Ine., . . . . 

190 A.3d 596,599 (PaSuper. 2018), citing Cardenas v. Schober, 783A.2d 3l7(Pa� Super. 

2001). 

Count I ofPlaintiff's complaint contains bald allegations of'breach of contract, Plaintiff 

does not clearly identify to which.Defendantts) thisapplies .. It is well established there arethree 

elements necessary to plead a cause of action for breach of contract: (l) the existence ofa 

. . 

contract, including its essential terms, (2) a breachof the contract; and (3) resultant damages .. 

. . . . . . 

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Meyer, Darragh, Buckler, Bebenek & Eck, P,L.L.C., V; Law Firm oJMalone Middleman, .P.C., 

6137 J\Jd 1247, 1258 (Pa. iot6). The most obvious problem in Plaintiffs case and complaint is 

he has not.identified a single.contract to which he is actually a.contracting party. Plaintiff 

attaches no contract in blatant violation of Pa.R.C:P. 1019(1). In each ofthese contracts the 

parties are the.Defendants and Plaintiff's.parents .. Plaintiff therefore has no standing. lt is 

fundamental contract Jaw that one cannot be liable for breach of a contract unless one is a party 

to that contract. Electron Energy Corp. v .. Short, 597 A.2d 175, 177 (Pa. Super. 1991): There 

simply is no viable claim for breach as one cannot breach a contract to which one is riot a party. 

In the case. of an insurance contract, a party to the. contract is the one with standing to. enforce the 

terms of the insurance contract, Pettyv. Hosp. Serv. Ass 'n. of Northeastern Pa., 2J A.3d 1004,. 

IOI) (Pa .. 2011). 

There are some instances in which a third-party beneficiary does. have standing, such as 

when a: beneficiary under a will, would lose theirintended legacy; Guy v .. Liederbach, 459 A.2d 

744; 751 (Pa. }983) see also. Estate .. of Agnew v. Ross, 152 A.3cf.247, 259 (Pa .. 2-017). But the 

condition precedent to the life insurance contracts funding the trust (the death of Plaintiff's 

parents) has. not yetoccurred, The naming of a party .as a beneficiary of a policy "vests nothing 

in that person" given the a:pility of the. policy's owner to change the beneficiary at any time prior 

to theinsured's death. Equitable lifeAssur: Sek ofll.S. v. Stitzel, 445 A.2d 523, 525 (Pa . Super, 

l 982) superseded on other grounds. Plaintiff seems to disagree with the choice of his parents not 

to make him the trustee of the trust. This is. the choice ofhis parents - as is theirright. Plaintiff's. 

claim simply makes. no sense and.is unable to make himself a party to these contracts; Therefore, 

the opportunity to amend wotild be pointless. 

. . 
· Plaintiff Purchased No Goods or Services 

Plaintiff in Count 11 of his complaint alleges harm under the Unfair Trade Practices and 

Consumer Protection Law (''UTPCP�"). In order to establish a prtma faeie C@Se under the 

UTPCPL a consumer must plead and establish ( 1) he purchased or leased goods or services· 

primarily for consumer purposes; (2) he suffered some ascertainable loss; and (3) the loss 

resulted from an unlawful method, act; or practice under the statute .. Toy v, Metropolitan Life Ins. 

Co., 92RA,2d 186 (Pa, �007). Simply put; the Plaintiff never dealt with any of the Defendants. 

Any purchases were. between Plaintiffs parents and the Defendants. The only parties with 

standing to sue would be Plaintiff's parents or in the case of their passing, perhaps the 

administrators of their respective estates. But as Plaintiffs parents are. still alive, Plaintiff cannot 

pursue an action in their stead. This. is not an issue which can be remedied via amendment to the 

complaint. 

Plaintiff Was Not Deprived of Property 

In Countlll of his Complaint, Plaintiff alleges a cause of action for conversion. 

, Conversion is defined as ''the deprivation of.another's property rights in, qr JJSe or possession of, 

a chattel, without the owner's consent and without lawful justification?' Stevenson v, Economy 

Bank of Ambridge, 197 A.2d 721, 7'}.6 (Pa. 1964). �·A plaintiff has a cause of action.in.conversion 

if he or she has actual or constructive possession of a chattel at the time of the alleged 

conversion." Pittsburgh Constr. Co .. v. Griffith, 834 A:2d 572; 581 (Pa. Super: 2003). Conversion 

is simply an elegant term for "civil. theft." Plaintiff admittedly does not even know if he is a 

beneficiary of the.trust in question. Plaintiff does not allege with any specificity (a) v;h�t was 

taken; (b) hislegal right to the, chattel; (c) the identity of who took(converte.d) the chattel; (d) the 

amount.which was converted; and {e) how any of the actions of the trustees were withoutlegal 
.• 

justification. Plaintiff is attempting to stake ownership in something which no longer exists? 

namely a trust which lapsed in 1989. There is simply nothing to steal, the trusts are not funded 

until the passing-of Plaintiff's parents. This flaw cannot becorrected via amendment. 

Lack of Subiect Matter Jurisdiction 

As aihresheldmatter, this Courtlacks subject.matter jurisdiction to hear Counts IV and 

V regarding fraudulent and negligent misrepresentation, as Plaintiff was not a party to the 

alleged misrepresentations, Plaintiff alleges misrepresentations were made to his father regarding 

life insurance contracts purchased by an irrevocable trust. If this is the case; Plaintiff cannot 

stand in bis father's shoes. Even if he were able to do so, Plaintifffails to allege any 

misrepresentations with any particularity. Youndtv. First Nat 'l Banko/ Port Allegany; 868 A.2d 

539,544.(Pa. Super. Ct .. 2005); Pa.R.C.P. 1 Ol 9(b)). Even if Plaintiff could allege a 

.misrepreseptation with specific particularity, he.cannot·makehimself a party to thealleged 

misrepresentations as.he is not a partyto the contracts. H� simply wasn't there. Therefore, 

amendment would be futile, and the claim must be dismissed. 

No. U niust Enrichment Due to Contract 

In.Count VI Plaintiff alleges unjust enrichment, This is simply not possible, as a party 

cannot maintain an unjust enrichment.claim where a written or express contract.exists. Wilson 

Area School District v, Skepton, 895 A2d 1250, 1254 (Pa; 2006); see also Lackner. v; Glosser; 

.892 A.2d 21, 34 (Pa. Super. Ct. 2006). Even assuming Plaintiffis pleading in the alternative the 

Superior Court has rejected unjus.t enrichment claims pled in the alternative where the Plaintiff 

also pleads the existence of.a written contract .. 'Khawaja v. RE/MAX.Central; 151 A:3d 626, 633- 

··: 

34 (Pa. Super. Ct 2016). 
To sustain � claim ofunjust enrichment Plaintiff must allege: (1) benefits conferred on 

defendant by plaintiff: (2) appreciation.of such benefits by the defendant; and (3) acceptance and 

retention. of such benefits under such circumstances that it would b¢ inequitable for defen�ant to 

retain the benefit without payment.of'value. Meyer, Darragh;. Buckler, Bebenek & Eck, P.L.L.C., 

v. Law Firmof Malone.Middleman, P.C, l79AJd 1093, 1102 (Pa. 2018), citingStyer v. Hugo, 

619 A.id 34 7,.3 50 (Pa • .Super. Ct. 1993 ). The complaint articulates no specific benefit given to 

the Defendants by the Plaintiff, nor {assuming a benefit was conferred) is there any alleged facts 

supporting said retention to be unjust, Plaintiff alleges things such as "taking cash value 

guaranteed death benefits,' and charging "future false .premiums." There are· no death benefits to 

he had, 'as his parents are still alive. This is obviously something amendingthe complaint willnot 

change.therefore amendment is futile. 

Other Claims 

Finally, in Count VII Plaintiff.attempts to create a "catch-all" category (Q include any 

claims not specified. This is obviously an unacceptable form of advocacy, as no new claims are 

stated and appear to this Court to. be reiterations of the preceding claims. 

Conclusiqn 

For the above-mentioned reasons this Court humbly .requests its. decision to dismiss 

Plaintiff's complaints with prejudice be affirmed. 

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