Defense Digest

Pennsylvania Rule Of Civil Procedure 1042 Requires Plaintiffs To FIle A "Certificate Of Merit" Within 60 Days of Filing Of The Complaint Involving Alleged Professional Liability
By Denis C. Dice, Esq.*

Professionals faced with civil suits filed in the Commonwealth of Pennsylvania have been granted additional rights under Pennsylvania Rule of Civil Procedure 1042 against the filing of frivolous lawsuits.  Pennsylvania Rule of Civil Procedure 1042 was effected January 27, 2003, and governs all professional liability actions. 

Rule 1042 applies to professional liability claims asserted against licensed professionals. A complaint averring negligence against a licensed professional must identify each defendant against whom the plaintiff is asserting a professional liability claim.  Importantly, in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff shall file, within 60 days after the filing of the complaint, a Certificate of Merit signed by the attorney.  A defendant who joins a licensed professional as an additional defendant must file a Certificate of Merit when the joinder is based on acts of negligence unrelated to the acts of negligence that are the basis for the claim against the joining party. 

The Certificate of Merit must state either: 

(1)  An appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill, or knowledge exercised or exhibited in the treatment, practice, or work that is the standard of the Complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing out the harm, or  (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. 

The trial court, upon good cause shown, shall extend the time for filing a Certificate of Merit for a period not to exceed 60 days.   The Motion to Extend the Time for Filing a Certificate of Merit must be filed on or before the filing date that the plaintiff seeks to extend.  The Prothonotary, upon Praecipe of the defendant, shall enter a judgment of non pros against the plaintiff where a Certificate of Merit is not filed within the required period, provided there is no pending timely-filed Motion seeking to extend the time to file the Certificate.  If defense counsel files the Praecipe for Non Pros under this rule, the court will only open the judgment if the petition shows 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 meritorious cause of action.  This rule applies "in all cases in which relief from a judgment of non pros is sought whether the judgment has been entered by Praecipe as of right or by the court following a hearing."

In Koken v. Charles M. Lederman, et al., 2003 Pa. Cmmw. LEXIS 936 (December 11, 2003), the defendants filed a Third Party Complaint against their accountants alleging that the accountants were solely liable to the petitioner for any and all damages as a result of their negligence.  Thereafter, the defendants failed to file a Certificate of Merit within the 60-day time period, and the prothonotary properly entered a judgment of non pros on behalf of accountants.  The Commonwealth Court determined that the non pros was properly issued because, not only was their Certificate of Merit not timely filed, the Third Party Complaint averments "do not state a clear claim against the accountants for anything." 

Accordingly, in all professional liability matters, counsel should file a Praecipe for Non Pros upon the plaintiff's failure to timely file a Certificate of Merit.   

*  Denis, a shareholder in our Philadelphia, PA office, can be reached at (215) 575-2779 or ddice@mdwcg.com.