Defense Digest

How Rule 1042.3 Stole Christmas

In Almes vs. Burkett, 2005 Pa. Super. 289; 2005 Pa. Super. LEXIS 2844 (Pa. Super. 2005), the Pennsylvania Superior Court recently carved out an exception to the requirements of Pennsylvania Rule of Civil Procedure 1042.3 governing certificates of merit in a professional malpractice case. Specifically, while certificates of merit need to be filed within 60 days of the filing of a complaint, the Pennsylvania Superior Court set precedent where an untimely filing may be excused.

On October 23, 2003, the appellants filed a complaint sounding in professional negligence against appellee, Attorney Myron Hay Tomb. The claim arose from Tomb's representation of the appellants in the purchase of real estate. After filing the complaint, appellants' counsel sought a written statement from a licensed professional that there existed a reasonable probability that the care, skill, or knowledge exercised by Tomb in representing the appellants fell outside acceptable legal standards. Appellants' counsel sought such a written statement in compliance with Pennsylvania Rule of Civil Procedure 1042.3. Additionally, Rule 1042.3 requires that a certificate of merit contemplating such a written statement be filed within 60 days of the filing of a complaint. Thus, appellants' counsel had until December 22, 2003, within which to file the certificate of merit in compliance with Rule 1042.3.

After seeking the written statement from a licensed professional, the statement was ultimately mailed back to appellants' counsel on December 18, 2003. In an unfortunate chain of events, however, appellants' counsel learned that his mother-in-law was "gravely ill" on the day prior to the receipt of the written statement. Appellants' counsel and his family, therefore, traveled to his mother-in-law's residence. She died that night and was buried on December 22, 2003. Appellants' counsel did not return to his office until December 26, 2003.

Upon return to his office, appellants' counsel opened the written statement that had been sent on December 18, 2003. Appellants' counsel also opened a Praecipe to Enter Judgment of Non-Pros filed on behalf of Tomb. Judgment of Non-Pros was then entered on December 26, 2003. On December 31, 2003, the appellants filed a Petition for Relief of Judgment of Non-Pros. After denial of the appellants' petition, this appeal followed.

The Superior Court began its analysis by examining Pennsylvania Rule of Civil Procedure 3051, governing relief from Judgment of Non-Pros. Specifically, the Superior Court acknowledged the rule's three-prong test - a Petition for Relief shall allege facts showing that: (1) the petition is timely filed; (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay; and (3) there is a merit for cause of action. Pa. R.C.P. 3051(b)(1-3). It was within these parameters that the Superior Court concluded that the case hinged upon the second prong, whether there was a reasonable explanation or legitimate excuse for appellants' counsel's delay in filing the certificate of merit in compliance with the 60-day requirement of Rule 1042.3. Ultimately, the court found that appellants' counsel's family crisis excused his untimely actions. Thus, appellants' counsel's family crisis provided a reasonable explanation that satisfied the second prong of Rule 3051, thereby meeting all necessary requirements for relief from a Judgment of Non-Pros. In so finding, the Superior Court found that the lower court abused its discretion and/or erred in denying the appellants' Petition for Relief from Judgment of Non-Pros. Accordingly, the Superior Court reversed the order of the lower court and remanded the matter.

Notably, Judge Orie Melvin authored a compelling dissent. Judge Orie Melvin exhibited concern over the Majority's decision to disregard the trial court's discretion. Essentially, Judge Orie Melvin recognized that the Majority carved out an exception to the plain language of the Rules of Civil Procedure. Reluctant to do so, Judge Orie Melvin opined that she would rely on the sound discretion of the lower court and affirm its order.

While the appellants were able to gain relief from the Judgment of Non-Pros, this Pennsylvania Superior Court case is instructive to the procedural practices in a professional malpractice case. Notably, in any professional malpractice case, it is imperative to hold claimants accountable to the dictates of the Rules of Civil Procedure governing the filing of a certificate of merit. Notwithstanding a family crisis or legitimate excuse, a claimant's non-compliance may successfully lead to a judgment of non-pros from which no relief will be granted. And to all a good night!

*Tony is an associate in our Scranton, PA office. He can be reached at (570) 496-4664 or aross@mdwcg.com.