2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

On appeal, Plaintiffs claimed that they had substantially complied with the certificate ofmerit requirements because two partners in the law firm had outlined the bases for legalmalpractice in the underlying wrongful death suit, and that such an outline satisfied therequirement of a written statement by “an appropriate licensed professional.” In addition,Plaintiffs asserted that verification submitted by their attorney constituted substantial compliancebecause it was served the same function as the certificate of merit. Id.The Superior Court disagreed, reasoning that Plaintiffs’ interpretation of “appropriatelicensed professional” was overly broad in that it would encompass almost every member of thefirm representing appellants, and would allow certification by parties who have a vested interestin the case. Moreover, the court asserted that attorney verifications are not sufficient substitutesfor certificates of merit. Verifications can be submitted by any person with sufficientknowledge, information and belief. Pa. R. Civ. P. 1024(c). Therefore, if verifications wereappropriate substitutes for a certificate of merit, the requirement that the certificate be submittedby an “appropriate licensed professional” would be nullified.In Moore v. John A. Luchsinger, P.C., 862 A.2d 631 (Pa. Super. Ct. 2004), the SuperiorCourt determined that a praecipe for non pros cannot be filed for failure to timely file acertificate of merit, or a petition to extend the time for filing, after a certificate of merit hasalready been filed, regardless of whether the certificate was filed late.In Scaramuzza v. Sciolla, 345 F. Supp. 2d 508 (E.D. Pa. 2004), the United States DistrictCourt for the Eastern District of Pennsylvania, sitting in diversity, declared that Rule 1042.3 wascontrolling substantive state law. The court further concluded that Plaintiff’s failure to file acertificate of merit within sixty days of filing original complaint did not warrant dismissal withprejudice where Defendants did not show prejudice from the delay and responded to Defendants’motion to dismiss by filing a proper certificate. The court found that Plaintiff was entitled to therelief provided by Rule 3051 (relief from entry of judgment for non pros) and deniedDefendants’ motion to dismiss.The United States District Court for the Western District of Pennsylvania has held thatRule 1042.7 (Entry of Judgment of Non pros for Failure to File Certification) is procedural innature and thus inapplicable to federal practice. Because the Federal Rules of Civil Procedure donot provide for a judgment of non pros, the proper procedure in federal court is to treat a motionto dismiss a professional negligence action for failure to comply with Rule 1042.3 as a motion todismiss, without prejudice. Ward v. Knox, McLaughlin, Gornall & Sennett, No. 08-43 Erie,2009 U.S. Dist. LEXIS 20302 (W.D. Pa. Mar. 13, 2009).In Cuevas v. U.S., No. 09-43J, 2010 WL 1779690, *3 (W.D. Pa. April 29, 2010), thecourt addressed whether a pro se prisoner plaintiff substantially complied with the certificate ofmerit requirement. The court noted that, in his answers to defendant’s expert interrogatories,plaintiff stated the names of three physicians who would testify as expert witnesses. Id. Plaintifffurther stated in the answer to interrogatories that two physicians would testify that the incidentin question caused plaintiff’s fractures and the third physician would testify that defendant didnot act responsibly in treating plaintiff. Id. The court stated that plaintiff did not produce anywritten report from the physicians. Id. at *4. Further, the court noted that one of the physicians166