PA: Fraud Claim will Not be Barred by Failure to Produce Affidavit of Merit
Jackson v. Gary L. Sweitzer Enterprises, Inc., 67 Pa. D. & C.4th 239 (York County 2004)
Student contributor: Justin Lieberman
PA: Underlying Real Estate Matter
Facts: Plaintiffs filed a complaint against multiple Defendants, including Attorney Sedor, in December 2003 for professional negligence, fraud, and violation of Pennsylvania’s Consumer Protection Law. The complaint alleged that their attorney was aware, or should have been aware, that appraisals of Plaintiffs’ properties were inflated. Plaintiffs were allegedly damaged as a result of this negligence in that they were unable to obtain mortgages due to these inaccurate appraisals.
Counsel for the Plaintiffs failed to file a certificate of merit against the defendnant attorney, within 60 days of filing the complaint, as required under Pennsylvania Law (Pa.R.C.P. 1042.3) in cases alleging a professional liability claim. Defendant Sedor, therefore, moved for judgment non pros. The trial court entered judgment in favor of Defendant Sedor.
Issue: Will the failure to file a certificate of merit bar all causes of action against an attorney?
Ruling: The Court denied Plaintiffs’ petition with respect to their claim of professional negligence against the attorney, but granted it on the remaining fraud and consumer protection law violation claims. The Court reasoned that the certificate of merit requirement was created to prevent frivolous professional negligence claims, not to bar all other causes of action a plaintiff may have against his attorney.
Lesson: The failure to file the required certificate of merit in a professional negligence claim will not preclude plaintiff’s other causes of action which are not based on professional negligence, against the defendant-attorney:
When a plaintiff fails to file a certificate of merit in an action alleging professional negligence, only those claims based on professional negligence should be dismissed.
I agree with the Court's holding in the case. A certificate of merit is not too much to ask to sustain a suit against an attorney because expert testimony is going to needed to be presented at some point anyway. It serves the purpose of preventing unneeded litigation and keeping costs down for everyone involved.
I think the holding in this case is fair because the plaintiff that was damaged as a result of his lawyer's negligence should not be precluded from suit against the negligent lawyer because of another lawyer's mistake. That being said, I think that this case creates awareness about the importance of complying with court procedure. The result for plaintiff was fine, but a lawyer should not bargain with the plaintiff's possible recovery by neglecting to comply with court formalities and procedures.
There is little to be learned from an attorney completely failing to follow this procedural rule, however, it is worth mentioning that strict compliance with Pa.R.C.P. 1042.3 is not required.
In the case of Salamoni v. Karoly, 74 Pa. D. & C. 4th 378 (2005), a case which I summarized for this blog last month, the Court held that a single certificate of merit was sufficient in a case against multiple multiple attorneys, even though separate certificates are technically required.
I agree with the ruling of the court. The professional negligence claim is a completely different issue than other possible claims a client may have against his attorney. The purpose of the certificate is to prevent frivolous professional negligence claims against lawyers, not to bar all other claims. A client might not have any real interest in filing a formal claim of professional negligence, he should be allowed to seek other damages.
The holding of this case is similar to the holding of any case in which a required document was not filed on time. There have to be rules governing this or else the courts would have a very tough time trying to chase people down to file documents. The time restrictions promote efficiency.