2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

ule, but who intentionally ignores following the exact steps required by the Pennsylvania Rulesof Civil Procedure.In Aranda v. Yacovelli, 2009 WL 4350256 (Pa. Super. Ct. Dec. 3, 2009), the SuperiorCourt held the trial court abused its discretion in finding that Plaintiff did not provide areasonable excuse for failing to file a timely certificate of merit. The trial court noted that theonly explanation for not timely filing a certificate of merit was a “mere administrative mishap.”The Superior Court stated that Plaintiff timely filed fourteen certificates of merit and that thefailure to file one additional certificate of merit was oversight, which is a reasonable excuse.While the court noted that Plaintiff was not aware of the failure to file one additional certificateof merit until receiving the notice of an entry of non pros, the court did not specifically statewhether Plaintiff possessed an expert report at the time the fifteen certificates of merit wererequired to be filed. The court did not offer any in-depth reasoning why administrative oversightis a reasonable excuse or define the parameters of what types of administrative oversightconstitute a reasonable excuse.In Almes v. Burket, 881 A.2d 861 (Pa. Super. Ct. 2005), a legal malpractice case, theclient/Plaintiffs filed their complaint in late October 2003. Four days before the deadline forfiling the certificate of service, the attorney/expert who had reviewed the case mailed thecompleted certificate of merit to the client/Plaintiffs’ lawyer. That same day the lawyer’smother-in-law died, a few days later was Christmas and he did not return to the office until fourdays after the deadline for filing the certificate. On that day he discovered the certificate of meritat his office and a praecipe for non pros. Judgment of non pros was entered the same day.Within a few days, plaintiffs filed a petition for relief from the judgment, which had attached toit a copy of the certificate of merit and an affidavit of the lawyer explaining why he did not file iton time. The trial court denied the petition.The Superior Court, on appeal, reversed and held that the trial court had abused itsdiscretion in denying Plaintiffs’ petition because the petition established a reasonable excuse forthe delay, in accordance with Rule 3051(b)(2), which governs relief from judgment of non pros.The court found that where a lawyer experienced a death in the family, the delay of one week infiling the certificate did little to damage the goals of Rule 1042.3, namely by helping to eliminatefrivolous malpractice cases and minimizing costs to defendants.In Atamian v. Gentile, No. 07-cv-00241-JF, 2007 U.S. Dist. LEXIS 25542 (E.D. Pa. Apr.4, 2007), the court held that a pro se Plaintiff, who was fully qualified and a duly licensedphysician, was not required to file a Rule 1042.3 Certificate of Merit when most of Plaintiff’sclaims did not involve professional malpractice. Plaintiff, a licensed physician, filed suit againsta dentist and the dentist’s secretary asserting numerous claims, including professionalmalpractice. Plaintiff failed to file a certificate of merit within sixty days of filing the complaintas required by Rule 1042.3. Defendants filed a motion to dismiss the complaint due to Plaintiff’sfailure to comply with the Rule. The court concluded that “[b]y filing his pro se complaint inthis case, plaintiff has, in effect, provided a certification that, in his opinion, the conduct of thedefendant dentist did not comport with applicable professional standards.” As a result, the courtdenied Defendants’ motion.114