Is a Certificate of Merit Required in a Professional Liability Action by a Non-Client Against a Lawyer?

By Jeffrey P. Lewis

When promulgated in 2003, Pennsylvania Rules of Civil Procedure 1042.1 et seq. raised the question of whether they apply to professional liability claims against an attorney brought by non-clients, such as for wrongful use of civil process or abuse of process. These rules require a certificate of merit that must represent that plaintiff has already retained “an appropriate licensed professional” who has offered a written statement that there exists “a reasonable probability” that the standard of care has been breached and that such breach caused the harm, that the claim against the professional is based on the conduct of other professionals supervised by the defendant or that expert testimony is not needed under the circumstances. Whether a certificate is required has importance because, if required, failure to file one will result in a judgment of non pros in state court or a dismissal in federal court.

Is a wrongful use claim against an attorney, for example, as codified at 42 Pa.C.S.A. §8351 et seq. and known as the Dragonetti Act, a “Professional Liability Action” under this chapter of the rules? Until June of last year, when the court last amended this chapter, these rules were silent as to claims by a non-client against a lawyer arising out of the lawyer’s professional conduct. But as part of these amendments, Rule 1042.1, titled “Professional Liability Actions. Scope. Definition,” provides in part that “(a) The rules of this chapter govern a civil action in which a professional liability claim is asserted by or on behalf of a … client of the licensed professional. …” In this author’s opinion, this amending language clarifies that this chapter only applies to claims brought by clients. After all, why would the Pennsylvania Supreme Court add this language if the previous version of this chapter clearly applied only to claims brought by clients? A recent case would suggest this author’s reading is incorrect.

In Chizmar v. Borough of Trafford, 2009 WL 1743687 (W.D. Pa.), a federal district court considered whether Rule 1042.3 requires a certificate of merit in a Dragonetti claim against a lawyer. A federal court applied this rule in a diversity action, notwithstanding that the Pennsylvania Supreme Court characterizes this rule as procedural, because federal case law considers it a rule of substantive state law. The federal rules provide for no mechanism substantially similar to a praecipe for judgment of non-pros, which allows the prothonotary to enter the judgment of non pros as an administrative act. Therefore, a defendant in federal court must file a motion to dismiss for non pros, which a judge then decides.

In Chizmar, defendant lawyer filed a notice of intention to file motion to dismiss for non pros for plaintiffs’ failure to file a certificate of merit with respect to their Dragonetti claim. Rule 1042.6(a), under state practice, now requires such a notice. In response, plaintiffs’ lawyer filed a motion to determine necessity to file certificate of merit, a motion that Rule 1042.6(c) authorizes under state practice.

Plaintiffs contended that Rule 1042.3, which requires a certificate of merit “[i]n any action based upon an allegation that a licensed professional deviated from an acceptable professional standard,” does not apply. They argued that such a certificate was unnecessary where expert testimony is not required to show breach of the duty of care. Under Rule 1042.3(a)(3), however, a certificate of merit is required even when plaintiff does not need an expert. They also argued, alternately, that they needed no certificate of merit because Rule 1042.1(a) requires it only in claims by clients against their own lawyer in the underlying matter. The defendant lawyer argued that plaintiffs needed a certificate of merit because expert testimony is required in all Dragonetti claims against lawyers to establish the standard of care.

Judge Terrence F. McVerry granted the defendant’s motion, holding that a certificate of merit is required to support a Dragonetti claim by a non-client. He considered Rule 1042.1(a), which provides that “the rules of this chapter govern a civil action in which a professional liability claim is asserted by or on behalf of a … client of the licensed professional against … (1) a licensed professional. …” He does not equate “a civil action” with “any civil action.” [Emphasis added.] Therefore, based upon this distinction, he does not view “a” as limiting the application of this chapter of rules only to suits against lawyers brought by their own clients.

This author predicts that this decision will not be followed because the court failed to take certain factors into account. Previous to the June 2008 amendments, there was never any question that this chapter of the rules applies to any professional liability action brought against a lawyer by his or her own client. Instead, the question was whether it applied to actions brought against a lawyer by a non-client. This language was added as part of the June 2008 amendments, according to an explanatory comment, “to make clear that Rule 1042.1 et seq. … applies to claims by or on behalf of … clients against licensed professionals.” But does this mean to the exclusion of non-clients? In that regard, the court ignores the rule of construction articulated in Rule 129(b) that “Provisos shall be construed to limit rather than to extend the operation of the clauses to which they refer.” Application of this principle would suggest that the reference to actions by a client against his or her own lawyer means that all other actions are excluded from application of this chapter of the rules. Further, the court relies upon federal case law that interprets the earlier version of these rules.

Notwithstanding, the filing of a certificate of merit, although it may not be required, can never hurt in a federal diversity action because there is no guarantee the court will agree that the 30-day notice provision under Rule 1042.6(a) will also be viewed as a rule of substantive state law. Therefore, in federal court, unlike in state court, the first notice to plaintiff that defendant believes that a certificate of merit is required is when defendant files a motion to dismiss for non pros, and then it’s too late.