Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bollard & Associates, Inc. v. PA Associates

Superior Court of Pennsylvania

November 19, 2019

BOLLARD & ASSOCIATES, INC.
v.
PA ASSOCIATES, ROBERT A. ROSIN, ESQ., GARY SCHMIDT, AND HARRY SCHMIDT APPEAL OF: GARY SCHMIDT AND HARRY SCHMIDT

          Appeal from the Order Entered October 10, 2018 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2017-28489

          BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J. [*]

          OPINION

          COLINS, J.

         This is 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.

         On 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 litigation.

         Appellants 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.

         Rosin, 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 ¶4.

         On July 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 course.

Stipulation of Discontinuance (emphasis added).

         On July 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.

         On 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 was due.

         On 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] ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.