Opinion
No. 354 EAL 2020
04-07-2021
Harry SCHMIDT and Gary Schmidt, Respondents v. Robert ROSIN, Individually and as Robert Rosin, Esq., Petitioner
ORDER
PER CURIAM
AND NOW , this 7th day of April, 2021, the Petition for Allowance of Appeal is GRANTED, on a limited basis, the Superior Court's order is VACATED to the extent that it revived the dismissed claim of legal malpractice asserted on behalf of Gary Schmidt, and the matter is REMANDED for consideration of whether Respondents raised and preserved a contract-based theory consistent with the requirements stated in Steiner v. Markel , 600 Pa. 515, 968 A.2d 1253 (2009). The petition for allowance of appeal is DENIED in all other respects, albeit without prejudice to Petitioner's ability to raise his arguments under Guy v. Liederbach , 501 Pa. 47, 459 A.2d 744 (1983), and Estate of Agnew v. Ross , 638 Pa. 20, 152 A.3d 247 (2017), in a subsequent petition for allowance of appeal, should the issue-preservation issue be decided adversely to him. To guide the ensuing review, the Court notes the following. Citing Steiner , Petitioner asserts that the Superior Court inappropriately proceeded sua sponte to raise a contract-based theory to support the viability of a cause of action by Gary Schmidt for legal malpractice.
The central holding of Steiner was that plaintiffs would not be permitted to pursue a contract-based theory on appeal in a legal malpractice action, where the intention to purse relief based on contract principles was not properly developed and preserved. See Steiner , 968 A.2d at 1260. And significantly, a sufficient treatment of an issue in an appellant's brief is an essential component of issue preservation. See, e.g. , Commonwealth v. Johnson, 604 Pa. 176, 985 A.2d 915, 924 (2009) (explaining that, "where an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.").
Here, in Respondents’ brief to the Superior Court as the appellants, they relied upon Kituskie v. Corbman , 552 Pa. 275, 714 A.2d 1027 (1998), in setting forth the elements of the cause of action pursued in the operative pleading (a second amended complaint). See Brief for Appellants dated Oct. 26, 2019, in Schmidt v. Rosen , No. 1310 EDA 2019, at 9. Under Steiner, the elements set forth in Kituskie are deemed to frame an action grounded in tort and not in contract. See Steiner , 968 A.2d at 1255 (also citing Kitukie ). Furthermore, Respondents’ Superior Court brief does not mention the terms "contract" or "third-party beneficiary."