2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

The court vacated the trial court’s order and remanded to the trial court to determine whichcounts of the complaint sounded in professional negligence.In Zokaites Contracting, Inc. v. Trant Corp., 968 A.2d 1282 (Pa. Super. Ct. 2009), appealdenied, 985 A.2d 972 (Pa. 2009), the court addressed whether a certificate of merit was requiredfor allegations against an engineering firm, whether Plaintiff provided a reasonable excuse forfailing to timely file a certificate of merit, and whether Plaintiff substantially complied with therules covering certificates of merit. The court found that Plaintiff’s complaint sounded inprofessional liability, not breach of contract because the Complaint’s averments related to theengineering firm’s overall exercise of care and professional judgment, not specific contractualduties and obligations. The court noted that a certificate of merit was required because to holdotherwise would allow Plaintiff to circumvent the mandates of Pa. R. Civ. P. 1042.3 by recastinga negligence claim into a breach of contract claim.The Zokaites court noted, “[i]n a breach of contract action against a professional, theprofessional’s liability must be based upon the terms of the contract.” The court also held thatplaintiff did not offer a reasonable excuse by stating they relied upon Judge Wettick’s decision inMerrmann v. Pristin Pines of Franklin Park, Inc., Pa. D & C 4th 14 (Allegheny Cty. Ct. Com. Pl.2003), which provides that a defendant waives the requirements of Pa. R. Civ. P. 1042.3 if hedoes not raise the failure to file a certificate of merit by way of preliminary objections. The courtstated that the Merrmann case was criticized, if not overruled in subsequent cases. Finally, theZokaites court ruled that plaintiff did not substantially comply with Pa. R. Civ. P. 1042.1 byfiling an untimely motion to extend and serving an expert report shortly before trial.In Merlini v. Gallitzin Water Authority, 934 A.2d 100, (Pa. Super. Ct. 2007), aff’d, 980A.2d 502 (Pa. 2009), the court addressed the distinctions between a claim of professionalnegligence and a claim of ordinary negligence. In Merlini, Defendants installed a water line onPlaintiff’s property without proper permission. Essentially, Plaintiff alleged that Defendants hada duty to determine the position of any easements and rights-of-way and breached that duty ininstalling the water line. Plaintiff never filed a certificate of merit within sixty days of filing thecomplaint and a judgment of non pros was entered in Defendants’ favor. The trial court deniedPlaintiff’s petition to open the judgment of non pros and Plaintiff appealed.On appeal, Plaintiff maintained that the trial court erred in refusing to open the judgmentof non pros. Specifically, she argued that she was asserting an ordinary negligence claim, notprofessional liability as the trial court had indicated. In addressing this argument, the SuperiorCourt noted that it had embraced the Michigan Supreme Court’s method of distinguishingordinary negligence from medical malpractice as illustrated in Bryant v. Oakpointe Villa NursingCenter, 684 N.W.2d 854 (Mich. 2004). The court applied the Bryant method to apply toprofessional negligence, explaining:There are two questions involved in determining whether a claimalleges ordinary as opposed to professional negligence: (1) whetherthe claim pertains to an action that occurred in the course of aprofessional relationship; and (2) whether the claim raises121