When a Bad Certificate of Merit Situation Gets Worse

/ 01.Jun, 2010
Josh J.T. Byrne, Esquire By now all Pennsylvania attorneys should be aware of the certificate of merit requirement in any action based upon an allegation that a licensed professional deviated from an acceptable professional standard.  Pa. R.C.P. 1042.3 which sets forth this requirement is now over seven years old, and most of us have become used to looking out for it whether serving as counsel for plaintiffs or defendants.  Moreover, some of the harshest effects of the certificate of merit rule have been ameliorated by the June 2008 amendments which require notice of intent to enter judgment of non pros thirty days before the non pros is actually filed.1 Despite this, there are still occasions when a certificate of merit is not timely and/or properly filed.  Pursuant to Pa. R.C.P. 1042.7, when a proper certificate of merit has not been filed, a judgment of non pros will be entered.  When a non pros is entered for failure to file a certificate of merit, the attorney representing the party whose action has been non prosed must necessarily turn his or her attention to solving the problem that has been created.  Unfortunately, too frequently the mind of the attorney turns immediately to appeal.  This can have disastrous consequences. The dismissal of an action for failure to file an appropriate certificate of merit is a non pros.  Pennsylvania Rule of Civil Procedure 3051 provides: (a) Relief from a judgment of non pros shall be sought by petition.  All grounds for relief, whether to strike off the judgment or to open it, must be asserted in a single petition.  (b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that: (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and, (3) there is a meritorious cause of action. A petition filed pursuant to Pa. R.C.P. 3051 is the only procedure provided for relief from a judgment of non pros. In Sahutsky v. H.H. Knoebel Sons, 566 Pa. 593, 782 A.2d 996 (2001), the court addressed the failure to file a petition pursuant to Pa. R.C.P. 3051 prior to filing an appeal of a non pros.  The Supreme Court explicitly stated that Pa. R.C.P. 3051 created a uniform requirement for all judgments of non pros, without respect to their province.  Quoting the Comment to Pa. R.C.P. 3051 the Supreme Court stated: The rule will apply in all cases in which relief from a judgment of non pros is sought, whether the judgment has been entered by a praecipe as of right or by the court following a hearing. Where the court has not participated in the entry of the judgment, the rule will provide a procedure for the court involvement and the making of a record which an appellate court will be able to review. Where the court has entered a judgment of non pros following a hearing, the rule will provide the court with an opportunity to review its prior decision. However, if the court is certain of its prior decision, it will be able to quickly dispose of the matter since the parties have already been heard on the issues. The Rule makes no distinction between judgments of non pros entered with or without prejudice. The Rule’s mandatory phrasings that relief from a non pros ‘shall be sought by petition’ and ‘must be asserted in a single petition’ clearly connote a requirement that parties file a petition with the trial court in the first instance. The comment indicates [the Rule]…applies to all judgments of non pros. Sahutsky, 566 Pa. at 598, 782 A.2d at 999 (quotation omitted) (emphasis in original). The Supreme Court reasoned that requiring a petition to open or strike a judgment of non pros ensures the trial court will have an opportunity to review the matter before an appeal.  “Such an approach will avoid unnecessary appeals, thereby assuring judicial economy, and will provide a better record for review in those cases where the question is close enough to warrant an appeal.”  Sahutsky, 566 Pa. at 599, 782 A.2d at 1000. Having concluded Pa. R.C.P. 3051 requires a petition to open or strike with regard to all types of judgments of non pros, the held the failure to file a Rule 3051 petition constitutes a waiver of any claims of error concerning the judgment of non pros entered by the Court of Common Pleas.  When an appellant files an appeal directly from a judgment of non pros, “the proper consequence of the failure to file a Rule 3051 petition is a waiver of the substantive claims that would be raised.”  Sahutsky, 566 Pa. at 601 n. 3, 782 A.2d at 1001 n. 3; Krell v. Silver, 817 A.2d 1097, 1101 (Pa. Super. 2003). The practitioner who has had a non pros entered for failure to file an appropriate certificate of merit must therefore remember to file a petition to open or strike under Pa. R.C.P. 3051, before filing an appeal.  Failure to do so will act as a waiver of all arguments on appeal. 1 It is worth noting that Pa. R.C.P. 1042.6 requires the notice of intent to enter judgment of non pros must actually be filed with the court, not merely served on the opposing party.