Pennsylvania state and federal courts are issuing opinions regarding legal malpractice claims at a rapid rate. Many of the opinions do not add significantly to existing jurisprudence, but the appellate courts show a significant continued interest in questions regarding legal malpractice claims. In this column we review two of the most recent Superior Court opinions.
Pro Se Certificate of Merit
In Winslow v. Goldberg, Meanix & Muth, No. 3606 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 2539 (Pa. Super. 2018), the Superior Court affirmed the denial of a petition to open judgment of non pros by the trial court. Winslow is more interesting for what the Superior Court did not address rather than the basis for the opinion. The plaintiff in Winslow had an underlying criminal conviction. Randall Winslow unsuccessfully appealed his criminal conviction. Acting pro se, Winslow filed an action against the criminal defense attorney who represented him on his direct appeal. Although the claims in Winslow’s pro se complaint were titled “breach of contract” and “fraudulent inducement,” the trial court determined they in fact sounded in professional negligence.
The attorney defendants filed a notice of intent to enter a judgment of non pros for failure to file a certificate of merit. Winslow responded he had filed a certificate of merit, stating: “Expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim against this defendant.” The defendants filed a motion to strike the certificate of merit because it did not attach a “written statement from an appropriate licensed professional,” which the defendants argued was required by Pa. R.C.P. 1042.3(e). The trial court originally denied the motion, but then vacated the denial and granted the motion in part giving Winslow leave to file a “proper” certificate of merit within 30 days. Winslow did not do so, and more than a year later, the court granted the motion for an entry on non pros.
Winslow filed an appeal, which was quashed due to the failure to file a petition to open the judgment. A petition to open judgment was then filed which the trial court denied as untimely. A timely appeal was made. The Superior Court noted that pursuant to Pa. R.C.P. 3051(b), a judgment of non pros may be opened when the petition for relief alleges “facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the conduct that gave rise to the entry of judgment of non pros, and (3) there is a meritorious cause of action.” The Superior Court agreed that the petition to open judgment was untimely, and no reason for the untimeliness was presented. The Superior Court further noted that no excuse for the conduct that gave rise to the non pros was presented. The Superior Court also determined no facts were alleged to establish a meritorious cause of action.
As noted above, this opinion is most interesting not for what it says, but for what it does not say. While the Superior Court’s decision not to open the judgment of non pros is well reasoned, the Superior Court makes no statement regarding the merits of the trial court’s decision to strike the certificate of merit. The stated basis for striking the certificate of merit was it did not attach a “written statement from an appropriate licensed professional.” However, the Pennsylvania Rules of Civil Procedure do not require any plaintiff, including a pro se plaintiff, to present a statement from an appropriately licensed professional when the certificate of merit asserts expert testimony is unnecessary. Pa. R.C.P. 1042.3(e) states:
“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.”
Although a pro se plaintiff must attach a written statement when the certificate of merit is filed under Pa. R.C.P. 1042.3(a)(1) or (2), Pa. R.C.P. 1042.3(e) does not require a statement to be attached when the certificate of merit is filed pursuant to Pa. R.C.P. 1042.3(a)(3) stating “expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.”
Alleged Malpractice in Settlement
In Gallagher v. O’Donnell, No. 557 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 2501 (Pa. Super 2018), the plaintiff sustained a workplace accident and brought a workers’ compensation claim as well as third-party personal injury claims. Represented by counsel, the plaintiff settled the third-party personal injury claims and signed a general release. The release stated it applied to “specifically, but not limited to, all claims of any kind, character, or description which have been or could have been asserted against the releasees.”
Two months after signing the release, the plaintiff underwent the first of a series of unsuccessful surgeries. The plaintiff considered bringing a medical malpractice claim against the surgeon who performed the surgeries, but did not after coming to the opinion that the medical malpractice claim would be barred by the general release signed with respect to the third-party claims. The plaintiff instead commenced a legal malpractice action based on a contention that counsel failed to explain the settlement would bar any potential medical malpractice claim arising out of plaintiff’s injuries.
In the legal malpractice action the attorney defendants filed a motion in limine asserting that the settlement of the third-party claims did not bar a medical malpractice action. The parties stipulated this motion in limine presented a dispositive issue for the trial judge to decide. The court made a determination that the release signed two months before the first surgery would not have barred a medical malpractice claim against the doctor as: “Any potential suit [the Gallaghers] may have against Dr. [Ramon] Lopez as a result of the treatment for the injury occurring out of the accident [is] a separate occurrence.” The court granted the motion in limine and dismissed the action.
In affirming dismissal, the Superior Court noted the language of the third-party release was very different from general release language Pennsylvania courts have previously held bars subsequent actions. The court contrasted the language in the Gallagher release with language in Fortney v. Callenberger, 2002 PA Super 182, 801 A.2d 594 (Pa. Super. 2002), which released the defendants and “all other persons, firms or corporations liable or, who might be claimed liable.” The Fortney release also contained a statement that it was made “for the express purpose of precluding forever any further or additional claims arising out of the aforesaid accident.” The Superior Court also noted that releases are generally construed so as not to bar claims that are entirely different than contemplated by the parties at the time of the release, citing to Vaughn v. Didizian, 436 Pa. Super. 436, 648 A.2d 38, 40 (Pa. Super. 1994).
These two opinions, both issued just this July, show our appellate courts continue to be keenly interested in legal malpractice issues. They also remind practitioners of pitfalls that frequently become the basis for legal malpractice actions—warranted or not. Dissatisfied criminal defendants have lots of time to prepare legal malpractice actions without respect to the substantial protections provided by the Pennsylvania Supreme Court in Bailey v. Tucker, 533 Pa. 237, 621 A.2d 108 (Pa. 1993). Releases that are poorly drafted or badly explained can lead to legal malpractice cases and possibly fall into one of the few exceptions to the general bar against legal malpractice actions following the settlement of the underlying action.
Josh J.T. Byrne, a partner in Swartz Campbell’s professional liability group in the firm’s Philadelphia office, is also co-chair of the Philadelphia Bar Association’s professional guidance committee and the incoming chair of the Pennsylvania Bar Association’s professional liability committee.