Marshall L. Schwartz recently prevailed in the Superior Court after the plaintiff failed to file a certificate of merit and a judgment of non pros was entered in the Court of Common Pleas of Philadelphia County.
The attorney represented by Mr. Schwartz and Mr. Brien represented the plaintiff in four separate matters: the filing of a writ of habeas corpus, representation in an extradition proceeding, an appeal of the denial of an expungement petition, and an appeal of the denial of an assessment of costs and modification of sentence. The plaintiff alleged that his representation in each of these matters was deficient and filed a complaint with causes of action for malpractice, breach of contract, unjust enrichment, and negligence. However, he did not file a certificate of merit.
Accordingly, the defendant filed a Notice of Intention to Enter Judgment of Non Pros of Professional Liability Claim. The plaintiff responded by filing a Motion to Determine Necessity of Certificate of Merit. The Honorable William J. Manfredi denied the motion and ordered the plaintiff to file a certificate of merit.
Prior to the deadline to file a certificate of merit, the plaintiff filed a “Motion to Place This Matter In Deferred Status.” When the deadline elapsed, the defendant entered a judgment of non pros. The plaintiff filed a Petition to Strike And/Or Open Judgment of Non Pros. The Honorable Marlene F. Lachman issued an Order denying the petition. The plaintiff appealed.
The Superior Court affirmed the Order of Judge Lachman. In a Memorandum authored by the Honorable Jacqueline O. Shogan, the Superior Court found that a certificate of merit was required for each cause of action in the plaintiff’s complaint because each implicated the attorney’s overall exercise of care and professional judgment in carrying out his work for the plaintiff. Additionally, even if no expert testimony was required at trial, the plaintiff was still required to file a certificate of merit stating as such as set forth by the Pennsylvania Rules of Civil Procedure.
The Superior Court further held that the plaintiff’s Motion to Determine Necessity of Certificate did not constitute a motion for an extension of time to file a certificate of merit, which would have prevented the defendants from entering a judgment of non pros while the motion was pending. Finally, the Superior Court held that the plaintiff’s complaint did not set forth a meritorious cause of action, a requirement to open a judgment of non pros.