756 Proposed amendment of rules 1042.3, 1042.6, 1042.8, and 1042.9 and new rules 1042.8, 1042.11, and 1042.12 governing certificates of merit; proposed recommendation no. 252?

PART I. GENERAL

[ 231 PA. CODE CH. 1000 ]

Proposed Amendment of Rules 1042.3, 1042.6, 1042.8, and 1042.9 and New Rules 1042.8, 1042.11, and 1042.12 Governing Certificates of Merit; Proposed Recommendation No. 252

[41 Pa.B. 2315]
[Saturday, May 7, 2011]

 The Civil Procedural Rules Committee proposes that Rules of Civil Procedure 1042.3, 1042.6, 1042.8, and 1042.9 governing certificates of merit be amended as set forth herein, and that New Rules 1042.8, 1042.11, 1042.12 governing certificates of merit be adopted as set forth herein. The proposed recommendation is being submitted to the bench and bar for comments and suggestions prior to its submission to the Supreme Court of Pennsylvania.

 All communications in reference to the proposed recommendation should be sent no later than June 7, 2011 to:

Karla M. Shultz
Counsel
Civil Procedural Rules Committee
601 Commonwealth Avenue, Suite 6200
P. O. Box 62635
Harrisburg PA 17106-2635

FAX [phone]
[e-mail]

Annex A

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1000. ACTIONS

Subchapter B. ACTION IN TRESPASS

PROFESSIONAL LIABILITY ACTIONS

Rule 1042.3. Certificate of Merit.

*  *  *  *  *

 (e) If a certificate of merit is not signed by an attorney, the party signing the certificate of merit shall, in addition to the other requirements of this rule, attach to the certificate of merit the written statement from an appropriate licensed professional as required by subdivisions (a)(1) and (2). If the written statement is not attached to the certificate of merit, a defendant seeking to enter a judgment of non pros shall file a written notice of intent to enter a judgment of non pros for failure to file a written statement under Rule 1042.11.

*  *  *  *  *

Rule 1042.6. Notice of Intent to Enter Judgment of Non Pros for Failure to File Certificate of Merit. Motion to Determine Necessity to File Certificate. Form of Notice.

*  *  *  *  *

 (d) The notice required by subdivision (a) of this rule shall be substantially in the following form:

(Caption)

[NOTICE OF INTENTION TO ENTER JUDGMENT OF NON PROS ON PROFESSIONAL
LIABILITY CLAIM]

Notice of Intention to Enter Judgment of Non Pros
for Failure to File a Certificate of Merit

*  *  *  *  *

Rule 1042.8. Motion to Strike. Defect of Certificate of Merit.

 If a court grants a motion to strike a claim for noncompliance with the requirements of Rule 1042.3(b), the court shall grant the plaintiff twenty days to file certificates of merit which cure the defect.

Rule [1042.8] 1042.9. Sanctions.

*  *  *  *  *

Rule [1042.9] 1042.10. Certificate of Merit. Form.

*  *  *  *  *

 (Editor's Note: Rules 1042.11 and 1042.12 are new and printed in regular type to enhance readability.)

Rule 1042.11. Notice of Intent to Enter Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Notice.

 (a) A defendant seeking to enter a judgment of non pros under Rule 1042.12 shall file a notice of intent to enter a judgment of non pros for failure to file a written statement from an appropriate licensed professional with the certificate of merit.

 (b) The notice required by subdivision (a) of this rule shall be substantially in the following form:

(Caption)

Notice of Intention to Enter Judgment of Non Pros
for Failure to File Written Statement from
an Appropriate Licensed Professional

To: _________________
(Identify Party)

 Pursuant to Pennsylvania Rule of Civil Procedure 1042.12, I intend to enter a judgment of non pros against you after thirty (30) days of the date of the filing of this notice if a written statement from an appropriate licensed professional is not filed as required by Rule 1042.3(e).

 I am serving this notice on behalf of ______
  (Name of party)

 The judgment of non pros will be entered as to the following claims:

 (State if a judgment is to be entered as to all claims. Otherwise, identify claims set forth in the complaint as to which a judgment of non pros will be entered.)

_________________
(Attorney)

_________________
(Address)

_________________
(Telephone Number)

Rule 1042.12. Entry of Judgment of Non Pros for Failure to File a Written Statement from an Appropriate Licensed Professional. Form of Praecipe.

 (a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a written statement under Rule 1042.3(e) provided that

 (1) no written statement has been filed,

 (2) the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and

 (3) the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter judgment of non pros.

 Official Note: The prothonotary may not enter judgment if the written statement has been filed prior to the filing of the praecipe.

 Rule 237.1 does not apply to a judgment of non pros entered under this rule.

 See Rule 208.2(a)(4) for the content of the certificate of service.

 (b) The praecipe for the entry of a judgment of non pros shall be substantially in the following form:

(Caption)

Praecipe for Entry of Judgment of Non Pros
Pursuant to Rule 1042.12

 To the Prothonotary:

 Enter judgment of non pros in the above-captioned matter against ______ as to
(Identify Party)

 (1) all claims against _________________.
(Identify Party)

 OR

 (2) only the following claims against ______:
(Identify Party)

Identify Claims

Date: ______   __________Attorney for ______
(Identify Party)

Explanatory Comment

 The Civil Procedural Rules Committee is proposing amendments to Rule 1042.1 et seq. governing the certificate of merit. Currently, the rules of civil procedure provide for dismissal of a complaint for failure to file a certificate of merit. However, they are silent as to procedure when a certificate of merit is filed, but does not comply with the rules, e.g., the basis for the certificate of merit is incorrect, or a certificate of merit lists three defendants when the rules require a separate certificate of merit to be filed against each defendant. Proposed new Rule 1042.8 provides that when a court grants a motion to strike for failure to comply with Rule 1042.3(b), the trial court shall give the plaintiff twenty days to file a new certificate of merit which will cure the defect.

 These proposed amendments also add a procedure for when the certificate of merit is not signed by an attorney. New subdivision (e) of Rule 1042.3 would require the attachment of the written statement from an appropriate licensed professional to the certificate of merit. Failure to attach the written statement will allow the defendant seeking to enter a judgment of non pros to file a written notice of intent to enter judgment of non pros. New Rule 1042.11 provides the requirements for filing the 10-day notice, and new Rule 1042.12 provides the requirements for filing the praecipe for entry of judgment of non pros. Suggested forms for both the 10-day notice and praecipe are provided.

 The Committee is proposing this amendment for several reasons. First, only an attorney is subject to disciplinary proceedings for abusing the rules of civil procedure governing certificates of merit. Second, it is not unusual for an unrepresented plaintiff to file a certificate of merit without having received a written statement from a licensed professional supporting his or her claim. Third, the rules governing the certificates of merit already make a distinction between an attorney and an unrepresented plaintiff filing a certificate of merit. Current Rule 1042.8 provides for a trial court to impose sanctions only upon a determination that an attorney has violated the rules governing the filing of a certificate of merit because monetary sanctions are an ineffective remedy to curtail the failure of unrepresented plaintiffs to obtain a written statement from an appropriate licensed professional.

 Technical amendments have also been made to Rules 1042.6, 1042.8, and 1042.9, which do not affect practice or procedure.

By the Civil Procedural Rules Committee

HONORABLE ROBERT C. DANIELS, 
Chair

[Pa.B. Doc. No. 11-756. Filed for public inspection May 6, 2011, 9:00 a.m.]