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Federal judges must enforce Pennsylvania’s requirement of a certificate of merit in all professional liability cases because the new rule qualifies as the substantive law of Pennsylvania, an Eastern District judge has ruled. But in a key victory for plaintiffs, U.S. District Judge Michael M. Baylson also held in Scaramuzza v. Sciolla that courts have the power to excuse a late filing of a certificate of merit. As a result, Baylson said it would make no sense to dismiss plaintiff Pasquale Scaramuzza’s legal malpractice suit even though he filed his certificate of merit seven months after filing the complaint — far beyond the rule’s 60-day limit. “Now that plaintiff has filed a valid certificate of merit, dismissal without prejudice with leave to amend is unnecessary and would only require paper shuffling and undue delay,” Baylson wrote. In the suit, Scaramuzza, a Florida man, claims that attorney Anthony J. Sciolla Jr.’s alleged mishandling of an insurance company’s suit against him in Montgomery County, Pa., led to a judgment against him of more than $477,000. Scaramuzza, who is represented by attorney Edward E. Kopko of Ithaca, N.Y., filed suit against Sciolla and his former firm, Jaffe Friedman Schuman Sciolla & Applebaum. Sciolla’s lawyers — Patricia C. Otto and Jeffrey B. McCarron of Swartz Campbell — moved for dismissal of the suit under Pennsylvania Rule of Civil Procedure 1042.3. But Kopko insisted that the rule should not apply in federal court and urged Baylson not to dismiss the case. “No decision of any federal court has held that Rule 1042.3 is a substantive rule of law, such that this court is required to apply it in this case,” Kopko wrote in his brief. “On its face, the rule is procedural. When deciding not to file a certificate of merit, the plaintiff relied upon a vast body of federal jurisprudence establishing that state procedural rules are inapplicable to federal courts sitting in diversity jurisdiction,” Kopko wrote. Baylson disagreed, finding that the 3rd U.S. Circuit Court of Appeals has already held that a similar rule in New Jersey must be applied in federal diversity cases. In its 2000 decision in Chamberlin v. Giampa, the 3rd Circuit concluded that New Jersey’s affidavit of merit statute does not collide with the Federal Rules of Civil Procedure and therefore must be applied as substantive state law by federal courts. Baylson found that the Pennsylvania rule “is similar to the New Jersey statute in both its language and operation, and the … analysis undertaken by the 3rd Circuit in Chamberlin should apply equally to the Pennsylvania rule.” But Baylson found that the defense lawyers were asking for too much when they demanded that, under Chamberlin, the failure to file a certificate of merit should result in dismissal of the suit with prejudice. “Although the New Jersey and Pennsylvania rules are analytically the same … they differ in one very important respect,” Baylson wrote. “The consequences of non-compliance are very different under the New Jersey statute and the Pennsylvania rule. Failure to comply with the New Jersey statute results in dismissal of the complaint with prejudice… . In Pennsylvania, however, the prothonotary enters a judgment of non pros against a plaintiff when the certificate of merit is not filed within the required period of time,” Baylson wrote. Baylson found that a judgment non pros — unlike a dismissal with prejudice — is a “default judgment that does not bar the plaintiff from commencing another suit upon the same cause of action.” As a result, Baylson concluded that, under the Pennsylvania rule, “dismissal with prejudice is improper merely because a plaintiff fails to provide a certificate of merit within the designated 60 days.” Instead, Baylson said, courts have the power to excuse a plaintiff who fails to file a timely certificate of merit if the plaintiff can meet the requirements of Rule 3051 of the Pennsylvania Rules of Civil Procedure. Under Rule 3051, the plaintiff must move “promptly” for relief, must show that the failure to file a certificate of merit can be “reasonably explained,” and the underlying cause of action must be meritorious. Baylson found that Scaramuzza satisfied all three factors of the Rule 3051 test. Although five months had passed between the end of the 60-day period and the filing of the certificate of merit by the plaintiff, Baylson found that the defendants had not suffered any prejudice since discovery has only recently begun due to litigation over the defendants’ unsuccessful attempt to join a third party. Kopko also had a reasonable explanation for not filing the certificate of merit, Baylson found. “Because the 3rd Circuit has not yet expressly determined that Pennsylvania Rule of Civil Procedure 1042.3 shall be applied as substantive law in diversity actions, this court finds plaintiff’s failure to either attach a certificate of merit to the original complaint, or to file it within 60 days, to be excusable,” Baylson wrote. Baylson found there was no need to consider the final factor because the defendants did not challenge the adequacy of the expert opinion the plaintiff has now supplied, or the merits of the underlying complaint.

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