Donnelly v. O’Malley & Langan, P.C., et al., United States Court of Appeals, Third Circuit, March 16, 2010
Facts: Plaintiff, proceeding pro se, filed suit against his former attorneys who had represented him in his underlying workers compensation claim. He alleged that his attorney has failed to adequately investigate his claim prior to negotiating a settlement, and tendered his letter of resignation to his employer before settlement. Plaintiff raised breach of contract and legal malpractice amongst other claims.
The attorneys moved to dismiss based, in part, on Plaintiff’s failure to produce a Certificate of Merit. The District Court granted the attorneys’ motion as to both the breach of contract and legal malpractice claims for failure to produce a Certificate of Merit. It held that Plaintiff provided no reasonable explanation for failing to file the certificate, and his promise to produce a legal expert in the future did not satisfy the requirement.
Plaintiff appealed and argued that no certificate of merit was necessary as to his breach of contract claims, since that claim did "not call for expert testimony to explain the [attorney’s] lapses in judgment or failures in performance."
Issue: Can Plaintiff proceed with a breach of contract claim against his former attorney without an affidavit/certificate of merit?
Regardless of how [Plaintiff] chooses to characterize his claim…[his] allegations pertain to the quality of [his former attorney’s] professional representation of him, and thus a [Certificate of Merit] is required.
Since Plaintiff could offer no reasonable explanation or legitimate excuse for his failure to furnish the certificate of merit, the Court dismissed Plaintiff’s claim without prejudice. Unlike New Jersey, the Pennsylvania statute does not require dismissal with prejudice for failure to file the required certificate of merit.
Lesson: A certificate of merit must be filed in Pennsylvania with regard to any claim that requires the analysis of whether or not an attorney breached the applicable standard of care. Whether the claim is characterized as beach of contract or legal malpractice is of no consequence.