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PA: The Pro Se Plaintiff…and the Rules of Law

Bresnahan v Schenker; 498 F. Supp 2d 758 (E.D PA, 2007)

PA: Procedure for filing a legal malpractice claim.

Student Contributor: Matthew Solomon

Facts: Client was represented by Attorney in a criminal matter and was convicted of multiple counts of theft by failure to make required dispositions of funds received. The Client, who is not incarcerated, decided to file a legal malpractice lawsuit pro se against his former public defender. The Client still had matters pending in the court of appeals at the time of filing his malpractice claim.


1. Can a pro se litigant file a Certificate of Merit stating one’s self as a licensed professional?

2. Must a plaintiff obtain post-trial relief on the basis of attorney error before filing a legal Malpractice claim?

3. Did the plaintiff state a claim upon which relief can be granted?


1. NO. In all cases where a plaintiff seeks to assert professional negligence claim a plaintiff must submit a certificate of merit that states either “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised … fell outside the acceptable professional standards…or expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim” A licensed profession is defined to include “an attorney at law.” Since it was improper, a judgment of non pros is awarded, but plaintiff is not barred from commencing another suit upon same course of action.

2. YES, as a matter of law, while an appeal is still pending a plaintiff may not file a professional negligence. A plaintiff must establish “he has pursued post-trial remedies and obtained relief which was dependent upon attorney error.”

3. NO, since the plaintiff did not exhaust post-trial remedies and did not file a timely certificate of merit the Defendants motion to dismiss was granted and the Plaintiff’s complaint was dismissed without prejudice if he prevails in his state court post-trial appeals on the basis of attorney error.

Lesson: In Pennsylvania, to have a valid professional negligence claim, one must exhaust all post trial relief before filing a malpractice claim. Also one must make sure that they follow exactly what the statute defines. If is one is filing a pro se action, and their own testimony is necessary to prove professional negligence, one must have a licensed professional also agree that there is professional negligence.  

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Posted in: Criminal Law, Pennsylvania