PA: Underlying Professional Liability Action
Facts: Attorneys filed a complaint in a wrongful death action but did not include a certificate of merit nor did attorneys request an extension for the filing period. Defense counsel successfully moved for judgment of non pros, and trial court denied attorneys petition to open and/ or strike. Appellants claimed that the trial court abused its discretion in refusing to open the judgment because they substantially complied with the certificate of merits requirement.
Issue: (1) Did attorneys comply with the certificate of merit requirement of a written statement by an appropriate licensed professional that negligence had in fact occurred by using an outline created by two senior attorneys from the firm describing the defective performance in the underlying matter? (2) Was verification by their attorneys the functional equivalent of a certificate of merit? (3) Was any deficiency “cured” because attorneys filed an actual certificate accompanied by the Petition after attorneys received defense counsels praecipe to enter judgment? (4) Was defense counsel obligated to inform attorneys of the need for a certificate of merit?
Ruling: (1) No. Where the experts relied upon have been personally involved in the litigation their credibility as to the certification is inherently suspect. Each of these persons have a vested interest in presenting the case as positively as possible. (2) No. Rule Pa. R.C.P. 1024(a) provides that what is being verified is any averment of fact not appearing of record in the action or denial of fact, not an assessment of the facts outside the acceptable professional standards. Furthermore, a memorandum or a verification does not present the same form as required by Rule 1042.8. (3) No. Attorneys failed to comply with the specific time requirement of submitting a Certificate with the Complaint or requesting an extension of time to do so. There is no reasonable excuse in afterthoughts. (4) No. Defense counsel was not required to inform attorneys of their procedural mistakes or failure to fulfill unnoticed requirements.
Lesson: Get an independent expert to furnish the Certificate of Merit. An attorney does not comply with the certificate of merit requirement by using a written statement by attorneys from his/her own law firm. Verification by attorneys does not satisfy the form requirement of the certificate of merit.