BOLLARD & ASSOCIATES, INC.
PA ASSOCIATES, ROBERT A. ROSIN, ESQ., GARY SCHMIDT, AND HARRY SCHMIDT APPEAL OF: GARY SCHMIDT AND HARRY SCHMIDT
from the Order Entered October 10, 2018 In the Court of
Common Pleas of Montgomery County Civil Division at No(s):
BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.
an appeal from an order of the Court of Common Pleas of
Montgomery County (trial court) dismissing an action in its
entirety following the plaintiff's settlement and
discontinuance of its claims against all defendants, despite
the fact that several defendants had filed cross-claims for
indemnity and contribution against a co-defendant and those
cross-claims had not been settled or discontinued. For the
reasons set forth below, we vacate the trial court's
dismissal of the cross-claims.
December 8, 2017, plaintiff Bollard & Associates, Inc.
(Plaintiff) brought this action against Appellants Gary
Schmidt and Harry Schmidt (collectively, Appellants), Robert
A. Rosin, Esq. (Rosin), who was Appellants' former
attorney, and PA Associates, a partnership owned by
Appellants and Rosin. Plaintiff sought in this action to set
aside transfers of Harry Schmidt's assets to Gary Schmidt
under the Pennsylvania Uniform Fraudulent Transfer Act, 12
Pa.C.S. §§ 5101-5114, to collect a judgment that
Plaintiff had obtained against Harry Schmidt in other
in their answer to the complaint averred that they had
instructed Rosin to transfer the assets at issue due to Harry
Schmidt's health and age long before the other litigation
and that Rosin was negligent in failing to do so.
Appellants' and PA Associates' Answer and
Cross-Claim, Answer ¶¶8-9. In this answer, filed
May 21, 2018, Appellants and PA Associates pleaded
cross-claims for indemnity and contribution against Rosin.
Id., Cross-Claim ¶¶1-2. Appellants and PA
Associates also filed a Certificate of Merit with respect to
their claims against Rosin on the same day that they filed
their answer and cross-claim.
in his answer to Plaintiff's complaint, filed
cross-claims against Appellants and PA Associates to recover
moneys that Appellants allegedly owed him for expenses in an
appeal in the underlying litigation and moneys that
Appellants and PA Associates allegedly owed him arising out
of other transactions. Rosin Answer and Cross-Claim at 2-4.
In their reply to Rosin's cross-claims filed June 5,
2018, Appellants and PA Associates again pleaded cross-claims
for indemnity and contribution against Rosin. Appellants'
and PA Associates' Reply to New Matter, Cross-Claim
10, 2018, Rosin filed a praecipe to withdraw his cross-claims
against Appellants and PA Associates. On or before August 15,
2018, Plaintiff entered into a settlement resolving its
claims in this action and a stipulation to discontinue all of
Plaintiff's claims with prejudice was filed on August 15,
2018. This stipulation, titled "STIPULATION TO
DISCONTINUE PLAINTIFF'S CLAIMS ONLY," was signed by
all parties and stated:
The undersigned do hereby Stipulate and agree to request that
the Prothonotary kindly mark the Plaintiff's Complaint
against Defendants PA Associates a Partnership, Robert Rosin,
Harry Schmidt and Gary Schmidt discontinued with prejudice.
All of the remaining cross claims by the Defendants
shall continue to be prosecuted by the Defendants in due
Stipulation of Discontinuance (emphasis added).
24, 2018, before the discontinuance of Plaintiffs'
claims, Appellants and PA Associates had filed a motion to
compel Rosin to respond to document requests. On August 23,
2018, Rosin filed a timely answer to the motion to compel in
which he contended that the motion should be denied because
the discontinuance had terminated the case in its entirety
and because Appellants and PA Associates had filed a legal
malpractice action against him in Philadelphia that asserted
the same claims. Answer to Motion to Compel ¶¶2-6,
8. Rosin did not set forth any information concerning the
terms of Plaintiff's settlement of its claims in this
answer or attach any documents concerning the settlement
other than the stipulation discontinuing Plaintiff's
claims. Rosin attached incomplete docket entries from the
Philadelphia action and a copy of document requests from the
Philadelphia action to his answer, id. Ex. D, but
did not attach any complaint in that action. Rosin also
submitted with this answer a proposed order denying the
motion that included language stating that based on the
discontinuance and Appellants' Philadelphia malpractice
action, "there is no open justiciable issue existing in
this case" and directing that "[t]he Prothonotary
is to mark this case closed by the parties."
Id., Proposed Order. On September 18, 2018, the
trial court entered an order granting Appellants' motion
to compel and ordering Rosin to respond to the document
requests within 20 days.
September 27, 2018, Rosin filed a petition for
reconsideration of the September 18, 2018 discovery order
reiterating the same arguments that the discontinuance had
terminated the case in its entirety and that Appellants and
PA Associates had filed a legal malpractice action against
him in Philadelphia that asserted the same claims. Petition
for Reconsideration ¶¶6-12. Rosin did not attach
any documents from the Philadelphia action as exhibits to his
petition for reconsideration and again submitted no
information or documents concerning the terms of
Plaintiff's settlement. The proposed order that Rosin
submitted with the petition for reconsideration not only
provided that the September 18, 2018 discovery order was
vacated, but also contained language stating that "there
is no open justiciable issue existing in this case" and
that "the Prothonotary is directed to mark this case
settled by the parties." Id., Proposed Order.
Rosin did not serve a rule to show cause setting a return
date by which an answer to the petition for reconsideration
October 9, 2018, less than two weeks after Rosin filed his
petition for reconsideration, the trial court issued an order
granting the petition, ordering that its September 18, 2018
order "is hereby VACATED," and ordering:
Further, it appearing to the Court that Plaintiff Bollard
& Associates, Inc. having stipulated to discontinue its
claim on 8/15/18 (#24); and that the cross claim of Robert
Rosin, Esq., having been withdrawn on 7/10/18 (#18); and that
Defendants Gary Schmidt, Harry Schmidt and PA Associates have
commenced a legal malpractice claim in Philadelphia County on
4/3/18, case number 180400428; there is no open justiciable
issues [sic] ...