2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

foreclose all challenges against that first complaint. Finally, the Superior Court held thatequitable considerations did not require that the judgment of non pros be opened and that thetrial court had not abused its discretion in refusing to do so. The court noted that while Womerv. Hilliker, 908 A.2d 269 (Pa. 2006), had held that Rule 1042.3 is subject to equitableconsiderations, Rule 126 applied only where a plaintiff had substantially complied with Rule1042.3, not where a plaintiff had failed entirely to file a certificate of merit. Therefore, in thiscase Rule 126 did not apply. Moreover, when the case was evaluated under Rule 3051,Plaintiff’s argument failed because the reasons she offered for not having filed the certificate didnot constitute a reasonable excuse. Consequently, the decision of the trial court was affirmed.The Pennsylvania Supreme Court had granted appeal limited to the issues of 1) whether acertificate of merit must be filed within sixty days of the filing of the original complaint,notwithstanding the filing of preliminary objections and/or an amended complaint and 2)whether the complaint and amended complaint raise a professional negligence claim whichrequires the filing of a certificate of merit. As indicated above, the Supreme Court affirmedthe Superior Court, doing so by per curiam order, over the dissent of one Justice.On December 19, 2007, in light of the Supreme Court’s comment in a footnote inWomer, 908 A.2d 269 n.10, in a non-precedential, unpublished opinion the Harris court reversedits 2005 decision and remanded back to the trial court for the entry of judgments of non pros infavor of appellants, Jefferson, Weiss, and Neuburger.Previously, in Harris, 877 A.2d 1275, the Superior Court held that the trial court had notabused its discretion in opening judgments of non pros where Plaintiff had not filed certificatesof merit within sixty days of filing a medical malpractice complaint, but had, in that time period,provided Defendants with actual expert reports and CV’s. Despite having received these expertreports, which did state that Defendants had deviated from the standard of care and that suchdeviations caused Plaintiff harm, the appellants Jefferson, Weiss, and Neuburger filed praecipesfor non pros, on the basis of which judgment had been entered in their favor in accordance withRule 1042.6. However, appellant Childers failed to seek a judgment of non pros at that time.Plaintiff petitioned to have the judgments opened, arguing substantial compliance with Rule1042.3(a). The trial court granted the petition.On initial appeal, the Superior Court in its 2005 opinion held that this was proper becausethe underlying purpose of Rule 1042.3 was to prevent the filing of baseless medical malpracticeclaims and plaintiff had satisfied this purpose by supplying the actual expert reports. The courtfurther stated that Plaintiff had reasonably explained the lack of technical compliance with Rule1042.3 in that it was not unreasonable for him to believe that his actions constituted substantialcompliance with the Rule. Given the facts of the case, the Superior Court concluded, he shouldnot be barred from his day in court. Accordingly, the Superior Court relinquished jurisdictionand the matter was returned to the trial court.Following the Supreme Court’s decision in Womer, appellants filed motions in trial courtfor reconsideration of the earlier decision to open the judgment of non pros. In denying thesemotions, the trial court indicated that it was unable to entertain such motions based upon theSuperior Court’s earlier decision. Appellants filed interlocutory appeals.118