Defense Digest

In January 2003, in an attempt to quickly dispose of unsubstantiated professional liability actions, the Pennsylvania Supreme Court adopted Pennsylvania Rules of Civil Procedure Rule 1042.3, et seq., requiring the filing of a certificate of merit within 60 days of filing a professional liability action. The Certificate of Merit must contain a statement from an appropriate licensed professional asserting that there exists "a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice, or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about harm... ." If a Certificate of Merit is not filed within 60 days, the party against whom the professional liability action has been brought may file a praecipe for entry of judgment of non pros, which is automatically entered by the prothonotary, dismissing the professional liability action.

Recently, the Pennsylvania Supreme Court, in Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), strengthened the Certificate of Merit rule by making it much more difficult for a party to open a judgment of non pros by arguing that they substantially complied with the Certificate of Merit rule. The plaintiff in Womer filed a complaint alleging negligence and lack of informed consent against a practicing ophthalmologist who performed corrective surgery on the plaintiff's eyes. The plaintiff did not file a Certificate of Merit within 60 days of filing the complaint, nor did he file a motion to extend the time for filing of the Certificate of Merit, as permitted by Pa. R.C.P. 1042.3(d). However, the plaintiff did serve expert reports on the defendant. Pursuant to the defendant's praecipe for entry of judgment of non pros, the prothonotary entered a judgment of non pros against the plaintiff, dismissing the case.

In response to the entry of a judgment of non pros, the plaintiff filed a motion to open the judgment. To open a judgment of non pros, a party must establish that : (1) the petition to open was timely filed; (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay; and (3) there is a meritorious cause of action. There was no dispute that the plaintiff satisfied prongs one and three of the Rule 3051(b) test. The question was whether the plaintiff had a reasonable explanation for his failure to file a Certificate of Merit with the court.

In support of his Motion, the plaintiff set forth two main arguments. First, he argued that service of the expert report constituted substantial compliance of the Certificate of Merit rule under Rule 126 and that the court could exert its equitable powers and overlook the procedural defect. Second, the plaintiff suggested that, even if his actions were not substantially compliant, his good faith belief that the service of an expert report substantially complied with the Certificate of Merit requirements was a reasonable excuse for his failure to fully comply with Pa. R.C.P. 1042.3, and, thus, the judgment should be opened under the Rule 3051(b) test. The trial court rejected these arguments and denied the plaintiff's motion, finding that his failure to comply with the requirements clearly set forth in Rule 1042.3 was not a legitimate excuse for the failure to file a Certificate of Merit. The plaintiff appealed this ruling to the Pennsylvania Superior Court.

The Superior Court, in reversing the decision of the trial court, relied on the equitable provisions of Pa. R.C.P. 126. Rule 126 permits a court to disregard an error or defect in procedure which does not prejudice a party's rights. Therefore, if a party substantially complies with a procedural rule, the court may disregard a procedural defect. The Superior Court found that the expert report served by the plaintiff constituted substantial compliance with the Certificate of Merit rule and was, thus, a reasonable excuse under rule 3051(b)(2) to open the judgment of non pros. This ruling was ultimately appealed to the Pennsylvania Supreme Court.

The Supreme Court first noted that the purpose of the Certificate of Merit rule was to help avoid meritless or questionable malpractice actions by quickly dismissing such claims from the judicial system. The plaintiff argued that he fulfilled the intent of Rule 1042.3 by serving an expert report on the defendant, despite failing to follow the procedural framework. The Court first looked to whether the failure to file the Certificate of Merit could be excused under the equitable provisions of Pa. R.C.P. 126. The equitable provisions of Rule 126 are only available to a party "who makes a substantial effort to conform." The Pennsylvania Supreme Court held that, because the plaintiff made no attempt to follow the procedural dictates of Pa. R.C.P. 1042.3, he did not substantially comply with the rule and Pa. R.C.P. 126 was inapplicable. The Court held that the mere serving of an expert report, regardless of its contents, does not trigger a substantial compliance analysis and, thus, substantial compliance is not a factor used to determine whether the judgment of non pros should be opened.

The Court also considered whether the plaintiff's belief that he had substantially complied with the Certificate of Merit rule was a reasonable explanation or legitimate excuse to justify opening the judgment of non pros under Pa. R.C.P. 1035(b)(2). The Court found that the plaintiff's belief regarding his substantial compliance with Rule 1042.3 was not a reasonable explanation or legitimate excuse. Moreover, the requirements of Rule 1042.3 are unambiguous and clear and the plaintiff's failure to file anything with the court, despite serving an expert report on the defendant, amounted to noncompliance with the Certificate of Merit rule. The Court went so far as to state that the trial court would have abused its discretion had they opened the judgment of non pros based on the plaintiff's arguments of substantial compliance.

The holding in Womer was reaffirmed by Babb v. Bershad, 922 A.2d 870 (Pa. 2007) and Funt v. Noel, 911 A.2d 919 (Pa. 2006). These rulings indicate a renewed willingness by the Pennsylvania courts to uphold dismissals pursuant to non pros judgments if the parties have failed to strictly comply with the Certificate of Merit rules set forth in Rule 1042.3.

*Elizabeth is an associate in our Philadelphia, Pennsylvania, office. She can be reached at eaunderwood@mdwcg.com or (215) 575-2599.