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.
Issues:
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?
Ruling:
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.
Tagged with: certificate, court, Criminal Law, District, Eastern, malpractice, Merit, negligence, Pennsylvania, post-trial, pro, Professional, pros, relief, se, States, United
Posted in: Criminal Law, Pennsylvania