Get the Gist? No Certificate of Merit Necessary

In December 2014, the Pennsylvania Supreme Court decided Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014), significantly changing the rules requiring a certificate of merit in professional liability cases. The scope of a professional liability claim is governed by Pa. R.C.P. 1042.1, which permits a negligence claim to be asserted against a licensed professional on behalf of a patient or client of that licensed professional. The licensed professional must be: a person licensed pursuant to an Act of Assembly; a health care provider as defined by the MCARE Act, 40 P.S. §1303.503; an accountant; an architect; a chiropractor; a dentist; an engineer or land surveyor; a nurse; an optometrist; a pharmacist; a physical therapist; a psychologist; a veterinarian; an attorney at law; or any professional licensed by another state. Pa.R.C.P. 1042.1.

In prior practice, any plaintiff filing a professional liability complaint alleging that a licensed professional deviated from acceptable professional standards was required, pursuant to Rule 1042.3, to support the claim with a certificate of merit. The plaintiff was required either to attach the certificate of merit to the complaint or file one within 60 days after filing the complaint. If the certificate of merit was not timely filed, the licensed professional against whom the claim was asserted could notice his/her intent to enter judgment of non pros (extensions of time are permissible if timely filed). If the certificate of merit was not filed, the court could enter a judgment of non pros. If the certificate of merit was filed, the defendant had an additional 20 days to file a responsive pleading to the complaint.

Until Bruno, the courts had interpreted these rules to require any plaintiff asserting a professional liability claim to file a certificate of merit regardless of whether he or she was a patient or client of the professional. That is no longer the rule in Pennsylvania.

David and Angela Bruno purchased a home infested with black mold that was insured under a policy with Erie Insurance Company. The Brunos contacted Erie when they discovered the mold, and Erie sent a professional engineer to evaluate whether any health problems could be associated with the mold. The professional engineer determined that the mold was harmless. The Brunos contacted Erie a second time when more mold was discovered during renovations, and Erie again sent the engineer out to evaluate the mold. The engineer again determined that the mold was harmless. However, after the family started suffering severe health problems, the Brunos elected to have the mold tested themselves and discovered that the mold was toxic. Erie made payment pursuant to the mold endorsement of the policy.

The Brunos filed a complaint against Erie, the engineer and the previous homeowners seeking damages for their injuries. Erie filed preliminary to the negligence claim, arguing that the “gist of the action” sounded in contract, based upon the homeowners’ policy, and not in tort. Rudick, the engineer, sought to have the professional liability claims stricken for failure to file a certificate of merit.

In its decision, written by Justice Todd, the Supreme Court of Pennsylvania provided an extensive history on the development of tort and contract law, defining the parameters for determining whether the “gist of the action” sounds in tort or in contract. The decision does not change the century and one-half-year old principle that, to define the action, the court must ascertain from the pleadings whether the claim involves a violation of a social duty owed to all individuals and imposed by tort law, regardless of the existence of a contract, or if it is the particular terms of the contract that establish obligations that would not normally exist outside of the contract. In the Brunos’ case, the court determined that, while the contract may have established the relationship between the parties, it was the negligence in the performance of the engineer’s obligations that gave rise to the action in tort.

While the Pennsylvania Supreme Court arguably did not deviate from its long history defining the difference between actions sounding in tort and contract (although perhaps applying it in an unexpected manner), it certainly changed the face of the law regarding certificates of merit. While Rule 1042.1 defined the scope of professional negligence actions as those involving designated professionals and their “patients and clients,” Rule 1042.3 did not specifically state that a certificate of merit was only required in cases between professionals and their patients or clients. Therefore, in prior practice, courts had required certificates of merit in all professional negligence actions, even where there was no patient or client relationship. The court determined that this was erroneous. It found that the 2008 amendments to the Pennsylvania Rules of Civil Procedure relating to professional liability actions make clear that Rule 1042.1, et seq., only apply to claims by or on behalf of patients or clients against licensed professional. This Supreme Court concluded that it is only in those same cases that a certificate of merit is required.

In sum, as per Bruno, a plaintiff will be able to assert a professional negligence claim, without privity, against a licensed professional. However, they will no longer be required to file a certificate to establish the merit of the claim. That’s the gist of it.

*Christina is an associate in our Pittsburgh, Pennsylvania office who can be reached at 412.803.3465 or cjwestall@mdwcg.com.

_{Defense Digest, Vol. 21, No. 2, June 2015}

_{Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2015 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}