A lesson from this case for parties and appellate practitioners is that prevailing parties in an intermediate appellate court who lose on an alternative theory that might be important if the decision is overturned may want to file a protective cross-petition for allowance of appeal.

The Pennsylvania Supreme Court’s recent decision in Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of Malone Middleman, P.C. (No. 8 WAP 2015), highlights a quandary of Pennsylvania appellate procedure regarding cross-appeals and the need to consider when to file a protective cross-petition for allowance of appeal. In this case, Meyer, Darragh sued Malone Middleman under alternative theories of breach of contract and quantum meruit for attorneys’ fees received by Malone Middleman after settling a wrongful death case. Meyer, Darragh represented the client for a period of time under a contingent fee agreement before an attorney left Meyer, Darragh to join Malone Middleman and the client changed law firms before the case settled.

The trial court awarded Meyer, Darragh a portion of the attorneys’ fees under the quantum meruit theory, but rejected the contract claim. Both sides appealed to the Superior Court. The Superior Court reversed the judgment on both grounds, finding for Meyer, Darragh on the contract claim and rejecting the quantum meruit claim. Malone Middleman filed a petition for allowance of appeal with the Pennsylvania Supreme Court. Under the Pennsylvania Supreme Court precedent of Lebanon Valley Farmers Bank v. Commonwealth of Pennsylvania, 83 A.3d 107 (2013), protective cross-appeals by the winning party in the court below are disfavored. Meyer, Darragh did not file a protective cross-appeal, and the Supreme Court accepted the petition only as to the validity of the Superior Court’s ruling on the breach of contract claim.

The Supreme Court reversed the Superior Court’s decision and ruled that Meyer, Darragh could not recover under the breach of contract claim. The question then becomes, what to do about the Superior Court’s unreviewed rejection of Meyer, Darragh’s quantum meruit claim? There would have been no point for the Supreme Court to remand that claim for further consideration because the Superior Court already addressed and rejected it. The issue was not briefed in the Supreme Court because the court granted review on the basis of a petition that addressed solely the contract claim. Therefore, the Supreme Court’s majority opinion seemingly leaves the formerly prevailing party—Meyer, Darragh—without recourse.

Chief Justice Saylor and Justice Todd each filed concurring opinions noting the dilemma faced by Meyer, Darragh since it did not file a protective cross-appeal on the rejection of its quantum meruit claim. They also noted the Supreme Court’s admonition against successful litigants filing protective cross-appeals in the Lebanon Valley case. Interestingly, the two concurring opinions suggest the novel remedy of allowing Meyer, Darragh to file a “nunc pro tunc” petition for allowance of appeal from the Superior Court’s rejection of the quantum meruit claim. Meyer, Darragh recently filed its “nunc pro tunc” petition for allowance of appeal in this matter. Malone Middleman opposed the petition, and the Supreme Court has not ruled on the petition.

A lesson from this case for parties and appellate practitioners is that prevailing parties in an intermediate appellate court who lose on an alternative theory that might be important if the decision is overturned may want to file a protective cross-petition for allowance of appeal. Until the Pennsylvania Supreme Court clarifies the situation, this strategy would protect the prevailing party’s position, notwithstanding the Supreme Court’s contrary advice only 2.5 years ago in Lebanon Valley. The protective cross-petition should inform the court why it is being filed, noting the situation that arose in the Meyer, Darragh case.