Defense Digest

Superior Court Strictly Construes Certificate of Merit Requirements in Professional Liability Claims

As part of the effort to curtail frivolous and/or unfounded litigation, the January 2003 amendments to the Pennsylvania Rules of Civil Procedure require that, in order to pursue a professional liability claim, counsel for the plaintiff (or the plaintiff himself in a pro se case) must file a "certificate of merit" with the complaint or within 60 days thereafter. This rule impacts claims raised against health care providers, accountants, architects, engineers, and attorneys. Pa.R.C.P. 1042.3 states, in pertinent part:

Pa.R.C.P. 1042.3(d) provides that a court may, for good cause, extend the 60-day time limit, as long as a motion seeking such an extension is filed prior to the deadline for the filing of the certificate of merit. In the event that a timely certificate of merit, or a motion for an extension of time to obtain such a certificate, is not filed within those initial 60 days following the filing of a complaint, then Pa.R.C.P. 1042.6 authorizes the entry of a judgment of non pros (dismissal of a case for want of prosecution) against the plaintiff.

Two recent decisions by Pennsylvania's Superior Court emphasize how strictly the rule is being interpreted and serve as caution to those who might otherwise delay or procrastinate.

In Hoover v. Davila, 2004 Pa. Super. 314 (August 13, 2004), the Superior Court upheld the entry of non pros in a medical malpractice claim pursuant to Pa.R.C.P 1042.6. In Hoover, the plaintiff commenced his action against a group of physicians on February 12, 2003 and alleged that they failed to diagnose an infection in his left leg that caused osteomyelitis in his femur. The complaint had to be reinstated on March 10, 2003 and April 10, 2003 due to problems in obtaining service on the defendants. The plaintiff, while finally obtaining service on the defendants, failed to file a certificate of merit within 60 days of the original filing of the complaint. Counsel for the doctors, on April 29, 2003, filed a praecipe for entry of non pros, which was granted. The plaintiff filed a timely petition to open or strike the judgment of non pros, which included the certificates of merit as to the claims raised against the physicians. The petition was denied, and the plaintiff appealed.

On appeal to the Superior Court, the plaintiff argued that the time period within which to file the certificate of merit should have restarted upon each of his two successive reinstatements of the complaint. The court disagreed and held that Rule 1042.3 was unambiguous and required either the filing of a certificate of merit or a motion for an extension of time within 60 days of filing of the original complaint. The fact that the plaintiff was proceeding pro se and was not aware of the rule's requirements did not excuse his failure to comply with the new rule nor with his failure to supply good cause for opening the judgment of non pros. The court emphasized that, in the event that counsel or a litigant needed more time to file a certificate of merit, the rule provided a mechanism for that and, in the event of a non pros, counsel had better be prepared to explain why the certificate itself or a motion for an extension of time was not timely filed if a petition to open or strike the non pros is to be granted.

In Parkway Corp. v. Margolis Edelstein, 2004 Pa. Super. 307 (August 4, 2004), the defendant law firm was sued for alleged professional negligence arising out of the defense of a wrongful death action, which resulted in a verdict against the plaintiff (the firm's former client) in the amount of $7 million. The complaint was filed on August 22, 2003 and did not have a certificate of merit attached. Sixty days passed without the filing of a certificate of merit or a motion seeking an extension of time. On November 25, 2003, the defendant law firm successfully moved for judgment of non pros, and, following the trial court's denial of the plaintiff's petition to open or strike the non pros, the plaintiff appealed.

On appeal, plaintiff's counsel (and possibly a future defendant in yet another legal malpractice action) presented the novel argument that he had substantially complied with the rules governing certificates of merit. He argued that two senior partners in his firm had prepared an outline which catalogued the deficiencies of the defendant law firm's handling of the underlying matter. This, he argued, was the substantial equivalent of a written statement of an "appropriate licensed professional" that negligence had occurred. Moreover, the fact that plaintiff's counsel had supplied a written verification to the complaint was similarly "the functional equivalent of a certificate of merit." Lastly, in a "no harm, no foul" argument, the plaintiff claimed that, as he had attached a proper certificate of merit to his petition to open or strike the non pros, any deficiency was "cured."

In a "close but no cigar" ruling, the Superior Court held that the "licensed professional" foreseen by Rule 1042.3 as providing that initial gatekeeper function of certification must not only have sufficient education, training, knowledge, and experience, but he must also be credible and seemingly unbiased. One's partner in a law practice, even a senior partner, lacks the objective credibility contemplated by the rule and is not an appropriate certifying professional. Moreover, the court reasoned, an attorney verification to a complaint is not a satisfactory substitute for a certificate of merit in that the rules regarding verifications do not address the concerns embodied by Rule 1042.3's requirements for examination of a claim by an appropriate licensed professional. Lastly, in addressing the plaintiff's "cure" argument, the court held that the plaintiff had no reasonable excuse for failing to file either a timely certificate of merit or a motion seeking an extension of time to do so. In the court's own words, "There is no reasonable excuse to be found in afterthoughts."

The clear trend of the decisions interpreting Rule 1042.3 and the filing of certificates of merit is that the courts will enforce the requirements of the rule and do not appear willing, at this point in time, to "water down" the provisions by accepting arguments of substantial compliance or lack of prejudice. Plaintiffs' counsel are duly warned by these decisions that they need to strictly follow the time periods provided in the rule, while those of us whose practice includes the defense of professional liability claims must ensure that these new procedural requirements are met.

*Paul, a shareholder in our Bethlehem, Pennsylvania office, is a member or our professional liability practice group and can be reached at (484) 895-2321 or plees@mdwcg.com.