Opinion
J-A29028-19 J-A29029-19 No. 583 WDA 2019 No. 890 WDA 2019 No. 891 WDA 2019
01-17-2020
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 ADVISORS-SPAGIONE FINANCIAL, BUCHANAN INGERSOLL P.C. EDWIN M. FISCHL Appellant v. AXA LIFE INSURANCE COMPANY, EQUITABLE OF COLORADO, INC.-RJL GROUP, JOHN WALDRON, PHILIP SCHULTE, AXA ADVISORS-SPAGIARE FINANCIAL 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
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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. 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. 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.:
Retired Senior Judge assigned to the Superior Court.
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 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."
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. 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.
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.
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.
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.
(3) Statement of both the scope of review and the standard of review.Pa.R.A.P. 2111.
(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).
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 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 APPEALConcise Statement, 4/7/19, at 6 (unpaginated).
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.
Primarily, Mr. Fischl contends that his claims against the defendants should not have been dismissed with prejudice. In reviewing a challenge to 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.
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; 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).
Mr. Fischl claims he is presently entitled to his ¼ 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.
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 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.
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; 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. Although mentioned cursorily in his brief, none of the 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).
Mr. Fischl also claims he should be appointed as the trustee/special fiduciary.
"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 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.
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. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/17/2020
Image materials not available for display.