Sabella v. Estate of Milides, 992 A.2d 180 (Pa. Superior March 25, 2010).
Facts: The representatives of the Estate of Milides commenced an action arguing that Sabella participated in a fraudulent transfer of property to avoid satisfaction of a substantial judgment. Sabella filed preliminary objections. Shortly thereafter, the Estate, through its attorney, filed a praecipe (writ) for satisfaction and termination of the civil suit, indicating it was "settled, discontinued, ended with prejudice and costs paid". Sabella then filed the instant action for abuse of process against the Estate and its attorney, alleging wrongful use of civil proceedings.
The Estate’s attorney argued that the instant action ought to be dismissed because of Sabella’s failure to file a certificate of merit in a "professional liability" matter. Sabella disagreed since he had no attorney-client relationship with the Estate’s attorney, and characterized the matter as an "abuse of process" case, rather than professional malpractice. Sabella appealed after the lower court dismissed his action for failure to file a certificate of merit against the Estate’s attorney.
Issue: Does Pennsylvania require a Certificate of Merit in a civil action against an attorney for abuse of process by a third-party?
The Court noted that two factors determine whether a claim alleges ordinary negligence as opposed to professional negligence:
- Whether the claim pertains to an action that has occurred within the course of a professional relationship; and
- Whether the claim raises questions of professional judgment beyond the realm of common knowledge and experience.
The Court further provided:
Our Supreme Court retained privity (an attorney-client or analogous professional relationship, or a specific undertaking) as an element of proof necessary to maintain an action in negligence for professional malpractice. The only exception being a narrow class of third party beneficiaries under Restatement (Second) of Contracts § 302 where the intent to benefit is clear and the promisee (testator) is unable to enforce the contract.
If a complaint does not set forth a cause of action for legal malpractice, a certificate of merit is not required.
The Court held that Sabella’s cause of action did not arise from within the course of a professional relationship with the Estate’s attorney, nor was Sabella a third-party beneficiary. Consequently, the lower court erred in designating Sabella’s case as one of professional liability and dismissing it for failure to file a certificate of merit.
Lesson: In Pennsylvania, a third-party need not file a certificate of merit in an action against an attorney. By definition, given the lack of privity between the attorney and the third-party plaintiff, the action cannot be one for "professional malpractice."