Title 231—RULES OF
PART I. GENERAL
[ 231 PA. CODE CH. 1000 ]
Order Amending Rules 1042.3 and 1042.6, Renumbering Current Rules 1042.8 and 1042.9 and Adopting New Rules 1042.8, 1042.11 and 1042.12 of the Rules of Civil Procedure; No. 573 Civil Procedural Rules Doc.
[43 Pa.B. 1835]
[Saturday, April 6, 2013]
And Now, this 20th day of March, 2013, upon the recommendation of the Civil Procedural Rules Committee; the proposal having been published for public comment at 41 Pa.B. 2315 (May 7, 2011):
It Is Ordered pursuant to Article V, Section 10 of the Constitution of Pennsylvania that Rules 1042.3 and 1042.6 are amended, current Rules 1042.8 and 1042.9 are renumbered, and new Rules 1042.8, 1042.11, and 1042.12 are adopted in the following form.
This Order shall be processed in accordance with Pa.R.J.A. No. 103(b), and shall be effective May 1, 2013.
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.
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(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 motion to extend the time for filing a certificate of merit must be filed 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.
Official Note: There are no restrictions on the number of orders that a court may enter extending the time for filing a certificate of merit provided that each order is entered pursuant to a new motion, timely filed and based on cause shown as of the date of filing the new motion.
The moving party must act with reasonable diligence to see that the motion is promptly presented to the court if required by local practice.
In ruling upon a motion to extend time, the court shall give appropriate consideration to the practicalities of securing expert review. There is a basis for granting an extension of time within which to file the certificate of merit if counsel for the plaintiff was first contacted shortly before the statute of limitations was about to expire, or if, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available.
(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.
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(d) The notice required by subdivision (a) of this rule shall be substantially in the following form:
NOTICE OF INTENTION TO ENTER
JUDGMENT OF NON PROS ON PROFESSIONALLIABILITY CLAIM]
Notice of Intention to Enter Judgment of Non Pros for Failure to File a Certificate of Merit * * * * *
(Editor's Note: Rule 1042.8 is new and printed in regular type to enhance readability.)
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 a certificate of merit which cures the defect.
Rule [1042.8] 1042.9. Sanctions.
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Rule [1042.9] 1042.10. Certificate of Merit. Form.
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(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:
Notice of Intention to Enter Judgment of Non Pros
for Failure to File Written Statement from
an Appropriate Licensed Professional
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.)
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:
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 ______ .
(2) only the following claims against ______ :
Attorney for ______
The Supreme Court of Pennsylvania has amended 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 Rule 1042.6, which do not affect practice and procedure. Because new Rule 1042.8 has been adopted, current Rules 1042.8, and 1042.9 have been renumbered as 1042.9 and 1042.10, respectively.
By the Civil Procedural Rules Committee
DIANE W. PERER,
[Pa.B. Doc. No. 13-598. Filed for public inspection April 5, 2013, 9:00 a.m.]
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