A filing that included an attorney’s name and address was sufficient to give notice regarding a change of attorney, the state Superior Court has ruled.
The ruling in Constantino v. Yealy reverses a decision from the Allegheny County Court of Common Pleas that tossed the case because the plaintiffs’ attorney filed a third amended complaint without first filing a written appearance to indicate he had taken the case over from another attorney.
Writing for a three-judge panel in a memorandum opinion, Judge Christine L. Donohue said the amended complaint contained enough information about the attorney to satisfy the requirements under the Pennsylvania Rules of Civil Procedure.
“There is no dispute that attorney [Daniel W.] Ernsberger did not enter a written appearance,” Donohue said. “Nevertheless, attorney Ernsberger satisfied Rule 1012(a) [of the Pennsylvania Rules of Civil Procedure] by providing his name and an address where pleadings and other legal papers could be served on the cover page of the Constantinos’ third amended complaint.”
The plaintiffs in the case, Abraham and Rose Constantino, filed a complaint against several doctors and health care providers, including Dr. Donald M. Yealy and the University of Pittsburgh Medical Center, according to Donohue. Attorneys George R. Chada and James A. Ashton filed the complaint for the plaintiffs, which alleged corporate and professional negligence.
The defendants filed preliminary objections, and before arguments Ashton withdrew his appearance as the plaintiffs’ attorney. The trial court overruled the defendant’s preliminary objections and granted the Constantinos 30 days to file an amended complaint.
After the plaintiffs filed a second amended complaint and the defendants again filed preliminary objections, the trial court directed the Constantinos to file a third amended complaint and to pay $1,000 to the defendants for attorney fees.
The plaintiffs, through attorney Ernsberger, filed a third amended complaint, and the defendants filed a motion to strike, alleging that the Constantinos failed to file the third amended complaint in accordance with the Rules of Civil Procedure. The defendants contended that Chada had not withdrawn his appearance, and that Ernsberger had not properly entered his appearance.
The trial court granted the motions and struck the third amended complaint, holding that the time period for filing a proper third amended complaint had expired. Donohue said the court based its opinion on Ernsberger’s alleged failure to properly enter his appearance.
On appeal to the Superior Court, the Constantinos argued that the trial court incorrectly construed Rule 1012, and argued that the rule does not require one counsel to withdraw before another can enter his or her appearance. The plaintiffs further argued that even if the rule required Chada to withdraw before Ernsberger could enter his appearance, Rule 126 required trial courts to disregard procedural errors that do not affect the substantial right of the parties.
Pointing to the official notes following Rule 1012, Donohue said that although the rule says an attorney “may” enter a written appearance, the rule does not require it.
The court has also held that entry of a written appearance is not required if the pleadings give sufficient information to notify the parties, Donohue said, citing the 1976 state Superior Court case in Fleck v. McHugh.
In Fleck, an attorney contesting a default judgment argued that he had entered an appearance by filing preliminary objections. The trial court disagreed, finding that striking the preliminary objections had “the same effect as if no preliminary objections were filed.”
The Superior Court reversed, and said that a written entry of appearance only designates an address where papers can be served. Because the attorney’s name and address were on the document, the information appeared on the docket, and the procedural defect did not harm opposing counsel, the trial court held that the party did not need to file “a virtually meaningless slip of paper,” according to Donohue.
Along with saying that Ernsberger satisfied Rule 1012 by providing his name and address on the cover page of the third amended complaint, Donohue also noted that Ernsberger had asked a department of records clerk to note his name and address.
“The record contains ample evidence that appellees knew attorney Ernsberger filed the third amended complaint and knew attorney Ernsberger’s contact information whereupon they could serve papers and pleadings on the Constantinos,” Donohue said.
Ernsberger said he felt the issue was “much ado about nothing.”
“What the Superior Court said is what has always been,” Ernsberger said.
Dickie, McCamey & Chilcote attorney John C. Conti, who represented the defendants, did not return a call for comment.
Max Mitchell can be contacted at 215-557-2354 or firstname.lastname@example.org. Follow him on Twitter @MMitchellTLI.
(Copies of the 11-page opinion in Constantino v. Yealy, PICS No. 14-1194, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Account holders can use the online form to order.) •