2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

with the Rule. Pointedly, the court stated that the “equitable doctrine we incorporated into Rule126 is one of substantial compliance, not one of no compliance.” Consequently, the SupremeCourt held that the Superior Court had erred in considering Rule 126 and ordered the trial court’sorder denying Plaintiff’s motion to open the judgment to be reinstated.The court also explained, however, that a plaintiff who fails to file a certificate of merit asrequired is not without any remedy to save his action. Specifically, the court stated that underRule 3051, which allows a trial court to grant relief from a judgment of non pros, a plaintiffmight be able to demonstrate that his failure to follow Rule 1042.3 should be excused. In statingthis, the court noted that some lower court cases, such as Hoover v. Davila, 64 D. & C. 4th 449(Lawrence Co. 2003), aff’d on other grounds, 862 A.2d 591 (Pa. Super. 2004), have incorrectlyheld that a Rule 1042.6 judgment of non pros may not be opened under Rule 3051. TheSupreme Court held to the contrary and explicitly disapproved of Hoover and similar cases.In Sabo v. Worrall, 959 A.2d 347 (Pa. Super. Ct. 2008), the Superior Court examinedwhether Plaintiff had a reasonable excuse for Plaintiff’s failure to timely file certificates of merit.Plaintiff alleged that certificates of merit were prepared within a few days of filing theComplaint, but due to counsel’s oversight were never in fact filed. Counsel for Plaintiff allegedhe believed his paralegal had filed the certificates of merit, but learned the certificates of meritwere not filed when he received notice of the entry of judgment of non pros. The court focusedon Rule 126, to determine whether Plaintiff’s late filing of the certificates of merit wasexcusable.The court distinguished Womer, noting that while Plaintiff’s action was not a proceduralmistake, it certainly was not “a wholesale failure to take any action required by the Rules of CivilProcedure.” The court explained that unlike in Womer, counsel for Plaintiff prepared acertificate of merit, and the failure to file the certificate of merit was “an inadvertent mistake oroversight by counsel’s paralegal.” The court emphasized that, in Womer, counsel for Plaintiff“took it upon himself to conclude that submitting an expert’s report to the opposition‘substantially complied with Rule 1042.3.’”The court reasoned Defendants were not prejudiced by Plaintiff’s untimely filing of acertificate of merit, and the spirit of Rule 1042.3 was not compromised. The court explained, the“filing was not impeded by any intent to substitute an alternative document under the guise ofour Rules of Civil Procedure.” The court further held the inadvertent mistake or oversight bycounsel for Plaintiff in preparing, but forgetting to file the certificates of merit was a reasonableexplanation or legitimate excuse for the delay.At first glance the opinions of Sabo and Womer seem at odds with one another. Thecourts have held obtaining an expert opinion and providing it to opposing counsel will not avoiddismissal for failure to file a certificate of merit; however, obtaining an expert’s report andpreparing certificates of merit which are not sent can avoid dismissal for failure to file acertificate of merit. Based upon the court’s holdings in Sabo and Womer, it appears the courtwill excuse a minor oversight of an attorney who intends on complying precisely with the rule,while the court will not excuse the actions of an attorney who complies with the intent of the113