PA: Circuit Court Comments on the Need for a Certificate of Merit
Donnelly v. O'Malley & Langan. P.C., U.S. Court of Appeals, Third Circuit (March 16, 2010).
Facts: Donnelly filed an action for legal malpractice against his former attorneys who had represented him in a workers' compensation matter. He raised claims of invasion of privacy under state law, breach of contract, legal malpractice, and violation of his state and federal constitutional rights.
On Defendants' motion, the District Court dismissed Donnelly's breach of contract/legal malpractice claim, holding that he failed to submit a Certificate of Merit, which is required under Rule 1042.3(a) of the Pennsylvania Rules of Civil Procedure, absent a reasonable explanation or legitimate excuse.
Donnelly filed an appeal arguing that he did not need a Certificate of Merit, since his claim sounded in breach of contract. Further, he argued, the allegation that employment law was beyond the expertise of the Defendants was easy for an ordinary person to understand.
Issues: Did Donnelly need to submit a Certificate of Merit to continue with his legal malpractice action?
Ruling: Yes.
Regardless of how he chooses to characterize his claim, however, Donnelly's allegations pertain to the quality of the O'Malley defendants' professional representation of him, and thus a [Certificate of Merit] is required.
The Court noted, however, that involuntary dismissal under Pennsylvania's Certificate of Merit Rule is not dismissal with prejudice.
Lesson: Err on the side of obtaining a Certificate of Merit in Pennsylvania for any claim which sounds in legal malpractice, no matter how it is characterized, or risk dismissal.
The certificate of merit smells of the denial of due process and equal protection. Barbers,mechanics etc. are state licensed. One class is protected and one is not..............