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Insisting on independent certificates of merit in legal malpractice cases, a Pennsylvania Superior Court panel has ruled that verifications from plaintiffs attorneys are “unsatisfactory substitutes” for certificates of merit from “appropriate licensed professionals.” The first impression opinion in Parkway Corp. v. Margolis Edelstein marks the first time the Superior Court has addressed the proper application of the year-and-a-half-old Pennsylvania Rule of Civil Procedure 1042.3 in a legal malpractice case. The judges rejected the argument that the certificate of merit rule was satisfied by an outline of Margolis Edelstein’s alleged deficiencies that had been drafted and verified by two senior attorneys from the firm representing the plaintiffs. The Superior Court’s opinion in Parkway Corp. affirms a trial court decision refusing to open a non pros judgment that had been entered against the plaintiffs. The legal malpractice allegations stemmed from a 1996 wrongful death action in which the Margolis Edelstein law firm represented Parkway. According to the Superior Court, a $7 million verdict was entered against Parkway in the wrongful death action. Along with its insurer, Scottsdale Insurance Co., Parkway sued Margolis Edelstein in August 2003, charging that the defense litigators had botched the wrongful death case. “What is problematic about appellants’ argument, and indeed self evident where the experts relied upon have been personally involved in the litigation,” Senior Judge Frank J. Montemuro Jr. wrote, “is that their credibility as to ‘certification’ is inherently suspect; each of these persons has a vested interest in presenting the case as positively as possible. Their value as putative witnesses would be seriously compromised by this fact alone. Hence, ‘appropriate’ has several aspects, one strictly professional, and one contextual.” Montemuro was joined by Judges Joseph A. Hudock and Joan Orie Melvin. A Philadelphia attorney who frequently represents other lawyers called the opinion a “wake-up call” for attorneys planning to file actions against other professionals. “It really is a very stark reminder to lawyers that this rule is going to be adhered to,” Abraham C. Reich of Fox Rothschild said of the panel’s decision. Rule 1042.3, which took effect in January 2003, orders plaintiffs in professional malpractice suits to provide a written statement from an “appropriate licensed professional” attesting to the probability that the work or care in question was substandard. A note to the rule indicates that the licensed professional who writes the statement need not be the same one who will testify at trial. The certificate of merit rule directs plaintiffs’ attorneys in professional malpractice cases to submit the written statement within at least 60 days of a complaint’s filing, although that deadline can be extended an additional 60 days when “good cause” has been shown. According to the opinion, when Parkway and Scottsdale filed suit against Margolis Edelstein in August 2003, their complaint lacked a certificate of merit, and they did not request a filing extension. In November 2003, Margolis Edelstein’s motion for entry of non pros was granted, and the trial court denied Parkway and Scottsdale’s petition to open. According to the Superior Court’s docket, Philadelphia Common Pleas Judge Sandra Mazer Moss presided at trial. In a footnote, Montemuro wrote that the Commonwealth Court had dealt with the proper application of the certificate of merit rule in its 2003 opinion in Koken v. Lederman, a case that involved alleged malpractice on the part of a company’s accountants. In that decision, the judges held that arguments of lack of necessity or of impossibility due to lack of access to certain documents do not excuse a failure to submit a certificate of merit or request a deadline extension thereof. The judges concluded that Parkway and Scottsdale’s claim that the Rule 1042.3′s written statement requirement had been met via the outline prepared by two partners from a firm handling their suit “assumes a very broad definition of ‘appropriate licensed professional,’” Montemuro wrote. “Were the licensure status conferred by education and training enough, no rule requiring a certificate need have been adopted,” Montemuro wrote. “Memos concerning the viability of a proposed action from other members of a firm as to the merits of a given case are not uncommon.” The panel also rejected Parkway and Scottsdale’s contention that they had complied with the rule by filing an actual certificate of merit along with their petition to open the non pros. “The fact remains that appellants failed to comply with the specific time requirements of the rule either by submitting a certificate with the complaint, or requesting an extension time to do so,” Montemuro wrote. “There is no reasonable excuse to be found in afterthoughts.” Reich said that in most legal malpractice cases, a plaintiff will offer in support of his or her claims the testimony or written report of a lawyer not involved in the case. “The certificate of merit is, in effect, a baseline requirement for asserting malpractice,” Reich said. “That is, you have another professional … who concludes you can advance, in good faith, [such] a claim.” Parkway was represented by attorneys from Kohn Swift & Graf in Philadelphia; Michael Boni of that firm referred questions on the case to Scottsdale’s lawyer, John O’Rourke Jr. of McTighe Weiss O’Rourke Troncelliti & Morgan in Norristown, Pa. O’Rourke did not immediately respond to calls seeking comment. Margolis Edelstein was represented by Thomas Duffy of Duffy & Keenan in Philadelphia. Calls to that office seeking comment were not immediately returned.

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