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December 21, 2008

Recent Developments: Certificate Of Merit

Pennsylvania Rule of Civil Procedure 1042.3 requires that a Plaintiff in a professional liability action file a Certificate of Merit verifying that a licensed professional has determined that a reasonable probability exists that another licensed professional deviated from the requisite standard of care with regard to the Plaintiff.

Licensed professional is defined pursuant to Pa. R.C.P. 1042.1 as any person who is licensed pursuant to an Act of the Assembly, including: healthcare providers; accountants; architects; chiropractors; dentists; engineers; land surveyors; nurses; optometrists; pharmacists; physical therapists; psychologists; veterinarians; and of course attorneys.

Where a Plaintiff fails to file a Certificate of Merit within the allotted time (either attached to the Plaintiff’s Complaint, or sixty (60) days thereafter) a Defendant may file a Praecipe of Non Pros which dismisses the Plaintiff’s claim for failure to file a Certificate of Merit. There are, however, exceptions to the above rule.

First, Pa. R.C.P. 1042.3 (b) provides that a Court, upon good cause shown, shall extend the time for filing a Certificate of Merit for a period not to exceed sixty (60) days. A Motion to extend the time for the filing of a Certificate of Merit must be filed on or before the filing date that the Plaintiff seeks to extend. The filing of the Motion to extend tolls the time period within which a Certificate of Merit must be filed until the Court rules on the Motion. As the Editorial Note to 1042.3(b) states, there are no restrictions on the number of Orders that a Court may enter extending the time for filing a Certificate of Merit provided that each Order is entered pursuant to a “New Motion,” timely filed and based upon a carsion as of the date of the filing of the new Motion. The moving party must act with reasonable diligence when filing the Motion i.e. insuring that it is promptly presented to the Court as required by local practice.

Second, in the case of Sabo v. Worrall, Pa. Super. (Sept. 22, 2008) the Superior Court determined that where the failure to file a Certificate of Merit resulted from inadvertent negligence (Plaintiff’s counsel had prepared a Certificate of Merit, but wrongly assumed that his paralegal filed it with the Court)Trial Court should have permitted the Plaintiff to reopen a Judgment of Non Pros since the Plaintiff had obtained the written statement from the licensed professional before the entry of Non Pros was entered, and where no prejudice to the Defendant from the late filing resulted. As such, the Superior Court reversed the Trial Court’s decision to deny the reopening of a Judgment of Non Pros. 

What It Means to You

Following the specific requirements of the Pennsylvania Certificate of Merit rules will avoid unintended and potentially devastating problems with your case. The attorneys at Cipriani & Werner are availalble to answer your Certificate of Merit questions.
 

Sources

PA Rule of Civil Procedure 1042.3; Sabo v. Worrall, Pa. Super. (2008)