IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
HARRY SCHMIDT AND GARY SCHMIDT, : No. 354 EAL 2020
:
Respondents :
: Petition for Allowance of Appeal
: from the Unpublished
v. : Memorandum and Order of the
: Superior Court at No. 1310 EDA
: 2019 entered on July 8, 2020,
ROBERT ROSIN, INDIVIDUALLY AND AS : affirming, vacating and
ROBERT ROSIN, ESQ., : remanding the Order of the
: Philadelphia County Court of
Petitioner : Common Pleas at No. 0428 April
Term 2018 entered on April 2, 2019
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, 968 A.2d 1253 (Pa. 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, 459 A.2d 744 (Pa. 1983), and Estate of Agnew v. Ross, 152 A.3d 247
(Pa. 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, 985 A.2d 915, 924 (Pa. 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, 714 A.2d 1027 (Pa. 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.”
[354 EAL 2020] - 2