2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

questions of professional judgment beyond the realm of commonknowledge and experience.In its examination of Plaintiff’s allegations, the court reiterated Varner v. Classic CommunitiesCorp., 890 A.2d 1068 (Pa. Super. Ct. 2006), and explained that it is the substance of theallegations, rather than the form that is important in this analysis. The court held that althoughthe alleged breach occurred during the performance of professional services, the allegations didnot raise questions of professional judgment beyond that of common knowledge and experience.Therefore, the court reasoned that plaintiff was simply asserting a trespass claim. Althoughexpert testimony may have been required to establish the property rights at issue, no experttestimony was necessary to establish a breach of the duty not to trespass. Thus, the courtconcluded that a certificate of merit was not necessary. Accordingly, the court reversed the trialcourt’s order denying plaintiff’s petition to open judgment of non pros.The Supreme Court affirmed the judgment of the Superior Court. Merlini v. GallitzinWater Auth., 980 A.2d 502 (Pa. 2009). The court focused on Plaintiff’s failure to allege that theDefendant’s actions fell below a professional engineering standard. The court stated Plaintiff’sallegations essentially constituted ordinary negligence and trespass. The court explained that theissues raised by Plaintiff were not issues involving professional judgment beyond the scope ofcommon knowledge and experience, despite the fact that the alleged negligence occurred duringthe performance of professional services. Accordingly, no certificate of merit was required. Seealso Smith v. Friends Hosp., 928 A.2d 1072 (Pa. Super. Ct. 2007) (holding no certificate of meritrequired against defendant hospital where plaintiff’s allegations relate merely to the failure toproperly supervise and employ its employees).Krauss v. Claar, 879 A.2d 302 (Pa. Super. Ct. 2005), appeal denied, 889 A.2d 1217 (Pa.2005), is another legal malpractice case that addresses the certificate of merit rules. Defendant inthis case was an attorney that had represented sellers in a transaction in which the buyers werethe successful bidders on property they wanted to use for logging. The buyers filed suit whenproblems arose with the sale and included the sellers’ attorney as a defendant. The attorneymaintained that the claims against him were for professional malpractice and filed a Praecipe forJudgment of Non Pros based on Plaintiffs’ failure to file a certificate of merit. Plaintiffs filed amotion to strike this praecipe, which the trial court denied.On appeal, the court found that the complaint did not raise any claims concerning theattorney’s duties as a licensed professional attorney. The allegations against him in thecomplaint were in connections with claims for negligent misrepresentation, intentionalmisrepresentation, promissory estoppel and tortious interference with contractual relations.These allegations did not assert that he had deviated from an acceptable professional standard,and so did not set forth a professional liability claim. Consequently, no certificate of merit wasrequired. The court also noted that a claim against a lawyer for legal malpractice could bebrought only by a client of that lawyer. The order of the trial court was reversed.In Perez v. Griffin, No. 1:06-CV-1468, 2008 U.S. Dist. LEXIS 45240 (M.D. Pa. June 9,2008), aff’d, 304 Fed. Appx. 72 (3d Cir. 2008) (not precedential), Plaintiff, while incarcerated atthe Schuylkill Federal Correctional Institution, suffered a severe asthma attack and alleged that122