2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Since the 2005 amendments, there have been many reported decisions from Pennsylvaniaappellate courts interpreting and applying the Rules of Civil Procedure that require a plaintiff tofile a certificate of merit in professional negligence cases within sixty days of filing thecomplaint, and that allow for judgment of non pros to be entered if a certificate is not filed.These are summarized below.(b)Failure to Timely File/Substantial Compliance(i)Failure to Timely File/Excuses for DelayIn Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), Plaintiff filed a medical malpracticecomplaint in August of 2003. He did not, however, file a certificate of merit within sixty days offiling the complaint as required under Pa. R. Civ. P 1042.3. He also did not file a motion toextend the time for filing the certificate of merit as permitted under Rule 1042.3(d). Defendantthen filed a Praecipe for Entry of Judgment of Non Pros in accordance with Rule 1042.6 forfailure to file the certificate of merit. Judgment in Defendant’s favor was entered that day. Twodays later Plaintiff filed a motion to open the judgment and to allow the filing of a certificate ofmerit nunc pro tunc. Plaintiff argued, among other things, that he had served an expert report onDefendant in discovery before the deadline for filing the certificate of merit that included all theinformation required to be in a certificate of merit. He contended that the purpose of Rule 1042.3had thus been served. He also attached a certificate of merit to his motion dated one day after thefiling deadline. Plaintiff cited Rule 126 and argued that strict adherence to Rule 1042.3 wouldundermine the Supreme Court’s purpose to eliminate the filing of non-meritorious professionalliability claims.The trial court denied Plaintiff’s motion as well as a subsequent motion forreconsideration. On appeal, the Superior Court found that Plaintiff’s contention that he compliedwith Rule 1042.3 by supplying an expert report was not unreasonable given the lack of case lawon the issue at that time. The Superior Court reversed the trial court order and remanded the casewith instructions that the court vacate the judgment of non pros if there was adequate proof thatPlaintiff had supplied the expert report to Defendant. The Supreme Court then grantedDefendant’s petition for allowance of appeal.The Supreme Court stated that its focus was on whether Rule 1042.3 is subject toequitable exceptions, and noted at the outset of this discussion that the rule as written contains nosuch exceptions. The court then considered whether Rule 126 should play any part in excusingPlaintiff’s failure to file a certificate of merit. The court noted that Rule 126 provides in relevantpart that a court “may disregard error or defect of procedure which does not affect the substantialrights of the parties.” The court explained that while they “look for full compliance with theterms of our rules, we provide a limited exception under Rule 126 to those who commit amisstep when attempting to do what any particular rule requires.”After reviewing previous pertinent cases, the Supreme Court concluded, as the trial courthad done, that Rule 126 should not be considered because plaintiff had not attempted to complywith Rule 1042.3 and made some procedural error, but rather had taken no steps at all to comply112