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NEW COURT RULE MANDATES
“CERTIFICATE OF MERIT”
IN PROFESSIONAL LIABILITY LITIGATION
Jack W. Plowman*
The Supreme Court of Pennsylvania earlier this year promulgated Rules
1042.1 through 1042.8 governing professional liability actions. The
new Rules became effective immediately, i.e., January 27, 2003.
The Rules apply to suits commenced against “licensed professionals,”
which is defined as “any person who is licensed pursuant to an Act of
Assembly.” The Rules designate specifically the professions included
which, from the construction point of view, includes:
an architect,
an engineer or land surveyor,
and requires that any person being sued for professional negligence be
described as such, setting forth the County in which the defendant
practices.
Most importantly, a plaintiff is required to file, within sixty (60)
days of the filing of the Complaint, a “Certificate of Merit” that an
“appropriate licensed professional has supplied a written statement
that there exists a reasonable probability” that the defendant’s
actions “fell outside acceptable professional standards and that such
conduct was a cause in bringing about the harm” complained of. The
“appropriate licensed professional,” need not be the same person who
will be called upon to testify at trial. A Certificate of Merit need
not be filed if the attorney certifies that an expert is unnecessary,
but in that event the plaintiff will be precluded from presenting
testimony by an expert.
The Rules apply as well to a counterclaim asserting a claim for
professional liability. A Certificate of Merit need not be filed as
to an additional defendant unless the acts of the additional defendant
are unrelated to the claim asserted against the defendant making the
joinder.
A defendant against whom a claim of professional liability is asserted
need not file an answer before twenty (20) days of service of the
Complaint or the service of the Certificate of Merit, whichever is
later. Discovery by the plaintiff is not permitted, without leave of
court, prior to the filing of the certificate of merit.
If no certificate of merit is filed, as required by the Rules, a
defendant may have the Prothonotary enter a judgment dismissing the
Complaint. Such a dismissal would not preclude a plaintiff from
re-filing the Complaint, assuming the statute of limitations has not
expired.
In the event a defendant is dismissed from the case, the plaintiff’s
attorney must furnish the dismissed defendant with a copy of the
written statement upon which the Certificate of Merit was based.
*Of counsel, Bentz Law Firm, P.C.; fellow, American
College of Trial Lawyers; member, American Bar Association Forum on
the Construction Industry; member, American Bar Association Fidelity
and Surety Committee; Member, National Bond Claims Association;
Adjunct Professor, Emeritus, Duquesne University School of Law,
Author, Pennsylvania Mechanics’ Liens (Professional Education Systems,
1989); Author, with K.W. Lee, Construction Contracting for Public
Entities in Pennsylvania (Lorman Education Services, 2002).
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