1786 Proposed amendment of rules 1042.1 et seq. governing the certificate of merit in professional liability actions; proposed recommendation no. 227

Title 231--RULES
OF CIVIL PROCEDURE

PART I. GENERAL

[ 231 PA. CODE CH. 1000 ]

Proposed Amendment of Rules 1042.1 et seq. Governing the Certificate of Merit in Professional Liability Actions; Proposed Recommendation No. 227

[37 Pa.B. 5248]
[Saturday, September 29, 2007]

   The Civil Procedural Rules Committee is proposing that Rule of Civil Procedure 1042.1 governing the certificate of merit in professional liability actions be amended as set forth in the attached recommendation. The 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 not later than November 8, 2007 to:

Harold K. Don, Jr.,
Counsel
Civil Procedural Rules Committee
5035 Ritter Road, Suite 700
Mechanicsburg, Pennsylvania 17055
 
or E-Mail to
[e-mail]

   The Explanatory Comment which appears in connection with the proposed recommendation has been inserted by the Committee for the convenience of the bench and bar. It will not constitute part of the rules of civil procedure or be officially adopted or promulgated by the Court.

Annex

TITLE 231. RULES OF CIVIL PROCEDURE

PART I. GENERAL

CHAPTER 1000. ACTIONS

PROFESSIONAL LIABILITY ACTIONS

Rule 1042.1. Professional Liability Actions. Scope. Definition.

   (a)  The rules of this chapter govern a civil action in which a professional liability claim is asserted against

   (1)  a licensed professional, and

   (2)  a partnership, unincorporated association, corporation or similar entity where the entity is responsible for a licensed professional who deviated from an acceptable professional standard.

*      *      *      *      *

   (c)  As used in this chapter, ''professional liability claim'' when asserted against a licensed professional who is a health care provider under subdivision (b)(1)(i) of this rule includes a claim for lack of informed consent.

Rule 1042.2. Complaint.

*      *      *      *      *

   (b)  A defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule.

   Official Note: [The filing of preliminary objections raising failure of a pleading to conform to rule of court is the procedure for bringing before the court the issue whether the complaint is asserting a professional liability claim.] The filing of preliminary objections pursuant to Rule 1042.2(b) is not a prerequisite to the filing of a praecipe for judgment of non pros for failure to file a certificate of merit.

Rule 1042.3. Certificate of Merit

   (a)  In any action against a licensed professional or an entity responsible for a licensed professional based upon an allegation that [a] the licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either

*      *      *      *      *

   (d)  The court, upon good cause shown, shall extend the time for filing a certificate of merit for a period not to exceed sixty days. [ A ] The motion to extend the time for filing a certificate of merit must be filed [on or before the filing date that the plaintiff seeks to extend] by the thirtieth day after the filing of a notice of intention to enter judgment of non pros on a professional liability claim under Rule 1042.6(a) or on or before the expiration of the extended time where a court has granted a motion to extend the time to file a certificate of merit, whichever is greater. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.

*      *      *      *      *

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.

   (a)  Except as provided by subdivision (b), a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.

   (b)  A judgment of non pros may be entered as provided by Rule 1042.7(a) without notice if

   (1)  the court has granted a motion to extend the time to file the certificate and the plaintiff has failed to file it within the extended time, or

   (2)  the court has denied the motion to extend the time.

   (c)  Upon the filing of a notice under subdivision (a) of this rule, a plaintiff may file a motion seeking a determination by the court as to the necessity of filing of a certificate of merit. The filing of the motion tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.

   Official Note: The motion may be filed at any time prior to the entry of a judgment of non pros.

   Once the judgment of non pros is entered, a party cannot raise the claim that the filing of a certificate of merit was not required.

   (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

To: ______
        (Identify Party)

   Pursuant to Pennsylvania Rule of Civil Procedure 1042.7, 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 certificate of merit is not filed as required by Rule 1042.3.

   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 [1042.6] 1042.7. Entry of Judgment of Non Pros for Failure to File Certification. 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 certificate of merit within the required time provided that

   (1)  there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate[.],

   (2)  no certificate of merit has been filed,

   (3)  except as provided by Rule 1042.6(b), the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and

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

   Official Note: The prothonotary may not enter judgment if the certificate of merit 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 1042.6

To the Prothonotary:

   [Enter judgment of non pros against ______
Plaintiff   
in the Professional liability claim against ______
Defendant
in the above captioned matter.]

   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
__________
 
__________.

   [I, the undersigned, certify that the plaintiff named above has asserted a professional liability claim against the defendant named above who is a licensed professional, that no certificate of merit has been filed within the time required by Pa.R.C.P. 1042.3 and that there is no motion to extend the time for filing the certificate pending before the court.]

Date: ______

_________________
[Defendant or] Attorney for [Defendant]
______ (Identify Party)      

   Official Note: Where applicable, a certificate of service of the notice of intention to enter judgment of non pros shall be attached to the praecipe.

Rule [1042.7] 1042.8. Sanctions.

*      *      *      *      *

Rule [1042.8] 1042.9. Certificate of Merit. Form.

*      *      *      *      *

Explanatory Comment

   Rules of Civil Procedure 1042.1 et seq., governing the certificate of merit in professional liability actions were promulgated in 2003. The Civil Procedural Rules Committee has reviewed the operation of the rules over the past four years and is proposing amendments to supply certain omissions in the present rules and provide additional notice to the parties. The proposed amendments do not alter the requirements of the existing rules governing the certificate of merit or expand the time period for filing the certificate.

   It is proposed that Rules 1042.6, 1042.7 and 1042.8 be renumbered as Rules 1042.7, 1042.8 and 1042.9, respectively, and that new Rule 1042.6 be promulgated to govern notice of intent to enter a judgment of non pros for failure to file a certificate of merit.

   The highlights of the amendments are as follows:

   1.  It is proposed that present Rule 1042.1 governing the scope of the rules be amended in two respects. First, subdivision (a) is revised to make clear that present Rule 1042.1 et seq. includes professional liability actions against a partnership, an unincorporated association, a corporation or a similar entity where the entity ''is responsible for a licensed professional who deviated from an acceptable professional standard.'' A conforming amendment to refer to these entities is to be made to Rule 1042.3(a).

   Second, new subdivision (c) is added to Rule 1042.1 to make clear that a professional liability action against a health care provider may include a claim for lack of informed consent.

   2.  Rule 1042.2(b) provides that ''[a] defendant may raise by preliminary objections the failure of the complaint to comply with subdivision (a) of this rule.'' However, courts have not construed the rule as requiring preliminary objections as a prerequisite to the filing of a praecipe for a judgment of non pros for failure to file a certificate of merit. Therefore, the Committee is proposing that the note to Rule 1042.2(b) be amended to reflect the case law.

   3.  New Rules 1042.6 and 1042.7 address concerns that the present rules (1) permit the entry of a judgment of non pros where a plaintiff may believe that the rules governing certificates of merit do not apply and (2) provide for the entry of a judgment of non pros where there has been no notice of intent to enter such a judgment.

   Several revisions are proposed to remedy this situation. First, new Rule 1042.6(a) requires a defendant to give a thirty-day notice of intention to file a praecipe for a judgment of non pros for failure to file a certificate of merit. Subdivision (d) provides a form of notice. The new rule retains the basic sixty-day period for the filing of a certificate of merit under present practice since the notice may be filed no earlier than the thirty-first day after the filing of the complaint and the judgment may not be filed earlier than thirty days after the filing of the notice.

   Subdivision (b) sets forth two exceptions to the notice requirement where the court (1) has granted an extension of time to file a certificate of merit and the plaintiff has failed to do so or (2) has denied a motion to extend the time for filing a certificate.

   Second, new Rule 1042.6(c) provides that once a notice of intention to seek a judgment of non pros has been filed, the plaintiff may file a motion to seek ''a determination by the court that the filing of a certificate of merit is not required.'' As in the case of a motion to extend the time for filing a certificate under Rule 1042.3(d), the ''filing of the motion tolls the time period within which a certificate of merit must be filed until the court rules upon the motion.''

   Third, present Rule 1042.6 is to be renumbered as Rule 1042.7 and revised. As revised, subdivision (a) of the rule has been expanded to set forth four conditions for the entry of a judgment of non pros. The form of praecipe to enter the judgment in subdivision (b) has been revised to conform to the new procedure.

By the Civil Procedural Rules Committee

R. STANTON WETTICK, Jr.,   
Chair

[Pa.B. Doc. No. 07-1786. Filed for public inspection September 28, 2007, 9:00 a.m.]