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Citizens Allied for Pennsylvania Patients |
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Certificate of Merit Update COMMONWEALTH COURT
Koken v. Lederman “Because third-party plaintiffs’ joinder complaint states a claim for professional liability, but they did not file a certificate of merit within 60 days of the filing of their complaint or request an extension of time to do so within that period, we deny their petition.” COURTS OF COMMON PLEAS Shinko v. Dunn Because the Order was not published in the Pennsylvania Bulletin until February 8, 2003 the Order and the Rule “were not valid as to the plaintiffs at the time the Complaint was filed” (January 28, 2003) despite the fact that the Order says it is to be effective immediately. Statute of limitations ran 10/17 and defendant filed for non pros 10/29 after filing answer, etc. Court said it does not seem equitable to allow the defendant to get the advantage of a judgment of non pros when they do not file preliminary objections to a complaint that did not comply with Pa. R.C.P. 1042.2; then file an Answer and New Matter and participate in extensive discovery.
Schiebel v. Latuska
Plaintiff’s Petition to Open Judgment of Non Pros is denied. “Rules 1042.1 through 1042.8 do not violate the Doctrine of Separation of Powers. The Rules were properly enacted pursuant to the Pennsylvania Supreme Court’s rule-making authority under the Pennsylvania State Constitution.” “Pa RCP 1042.6 does not violate a litigant’s due process rights. The Rules do not require that a defendant give notice to a plaintiff before filing a praecipe for entry of judgment of non pros for failure to file a certificate of merit.” “Plaintiff’s complaint clearly demonstrates a claim for professional liability so Preliminary Objections were not necessary.” “Plaintiff’s only reason for failing to file a timely Certificate of Merit was attorney error. It is a practicing attorney’s responsibility to be aware of these changes and new additions and to apply them in practice.”
Sieger v. O’Shea Legal malpractice case – Review of opening of Judgment of Non Pros denied. Plaintiff claims that 60 days is not enough “time to obtain requisite opinion.” The Supreme Court has determined that sixty days is both adequate and appropriate. Time is automatically extended “merely by the filing of a request for an extension pursuant to Rule 1042.3(d).”
Stabler v. McDermott
Plaintiff submitted one certificate of merit “as to unknown or unnamed licensed professionals.” Court found that the complaint lacked specificity and granted leave to amend. Once the individuals are properly identified in the amended complaint, the plaintiff can re-submit the certificates of merit.
Boyd v. Cheltenham York
Road Nursing & Rehab Ctr Certificate of merit filed 105 days after Complaint will not be stricken where defendant has refrained from exercising its rights under the Rule. Complaint filed 5/13/03. Certificate of Merit filed 7/30/03. Answer filed 8/22/03. Then Defendant files motion to strike Certificate of Merit as untimely filed. Motion denied. Where a defendant chooses, through inadvertence, agreement of the parties, or otherwise, not to avail itself of its right to a Non Pros by Praecipe, the Court may not strike a filed certificate of merit. No rule permits and no policy reason exists for striking a certificate of merit attesting to the validity of the claim of professional negligence where the defense itself has refrained from exercising its rights under Rule 1042.6(a).
Meszaros v. Vanzanten
Complaint to join additional defendant in professional liability action must be filed within 60 days of service of Complaint or service of Certificate of Merit, whichever is later. Helfrick v. UPMC Shadyside
Hospital Judgment of Non Pros granted for failure to file a certificate of merit. Plaintiff petitioned the court to open judgment of non pros. Petition denied. “[T]here is no requirement in the Rules of Civil Procedure for a defendant to give notice to the plaintiff’s counsel before filing a praecipe for the entry of a judgment of non pros for failure to file a certificate of merit. The provisions of Pa. RCP 237.1 do not apply. “Rule 126 cannot be used to rewrite the Rules of Civil Procedure.” “If trial judges wish to provide relief where there has been a judgment entered shortly after the sixtieth day and the petition to open if promptly filed, each judge will be creating a new deadline based on that judges’ view of what is fair.” Rule 237.3 states that it applies to a petition for relief from a judgment entered pursuant to Rule 237.1 and , . . . Rule 237.1 only applies to judgment of non pros entered pursuant to Rules 1037(a) and 1659. “A second action may be instituted in the situation in which a judgment of non pros was entered for reason other than staleness or prejudice [if the statute of limitations has not run].”
Herrman v. Pristine Pines
“[W]here a complaint does not allege that the plaintiff is asserting a professional liability claim against a defendant the plaintiff is not required to file a certificate of merit as to this defendant unless the plaintiff subsequently files an amended complaint stating that the plaintiff is asserting a professional liability claim against the defendant. Through the filing of preliminary objections, a defendant may seek a court order compelling the plaintiff to file such an amended complaint on the ground that the plaintiff is asserting a professional liability claim against this defendant. If the defendant does not file preliminary objections, the defendant waives its claim that the plaintiff violated the rule requiring the filing of the certificate of merit.” Frunzi v. Muller Court denied defendant’s motion to compel answers to supplemental interrogatories that sought to ascertain the credentials of the author. The court concluded that neither the rule nor its commentary note provide any support for pre-trial discovery concerning the identity or CV of the author.
Gardner v. Easton Hospital
Defendant’s preliminary objection granted for general, vague and overbroad allegations. Further, despite no motion being filed, the court in exercising its discretion grants Plaintiff 60 days from the date of the order to file a certificate of merit. Hoover v. Davila Petition To Open/Strike Judgment of Non Pros filed by Plaintiff denied – no Certificates of Merit were filed within the sixty day time frame. “A Motion to Extend Time For Filing a Certificate of Merit must be filed on or before the filing date that the Plaintiff seeks to extend. Factors in granting relief from Judgment of Non Pros pursuant to Pa. RCP 3051 are not to be considered in the granting of a non pros in professional liability actions.”
Riggleman v. Stearns
Complaint filed against architect and structural engineer. Plaintiff petition to strike judgment of non pros granted in case where expert report supporting allegations of negligence [not certificate of merit] was received within 60 days of “the publication of the rule.” “Plaintiff has satisfied the intention of the rule.” Court says that despite the rule becoming “effective immediately” it was not published in the supplement to the Pennsylvania Rules of Court until April 28, 2003. [Seems to imply that the effective date is 60 days from April 28th.] Speicher v. Toshok
Plaintiff’s Petition for Leave of Court to Conduct Pre-Complaint Discovery is denied. Rule 1042.5 is intended to restrict the plaintiff’s ability to engage in discovery by barring any discovery without leave of court except for the production of documents and things or the entry upon property for inspection or other purposes. |
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