Saturday, May 15, 2010

Certificate of Merit Not Required in Case Against Attorney for Wrongful Use of Civil Proceedings

In the case of Sabella v. Estate of Gus Milides, 2010 WL 1080720, 2010 Pa.Super. LEXIS 78 (Pa.Super. March 25, 2010 Gantman, J.), the Pennsylvania Superior Court recently held that a Certificate of Merit is not required to support a lawsuit filed against an attorney when the underlying cause of action is for wrongful use of civil proceedings. The Court issued this ruling even though the suit raised questions about the attorney's professional judgment.

The primary rationale of the Superior Court in support of this decision was that the suit was filed against an opposing counsel, as opposed to counsel who formerly represented the Plaintiff.

In Sabella, the Plaintiff filed a lawsuit against the estate of a deceased attorney asserting a claim for abuse of process and wrongful use of civil proceedings. Counsel for the defendant estate of the attorney secured a Judgment of Non Pros pursuant to former Rule 1042.6 on the grounds that the Plaintiff failed to file a Certificate of Merit. Thereafter, the trial court denied the Plaintiff's Motion to Strike Judgment of Non Pros and the Plaintiff appealed the matter to the Superior Court.

In determining a Certificate of Merit was not required against a lawyer in an abuse of process/wrongful use of civil proceedings case, the Superior Court emphasized the "gist of the allegations involves actions [the decedent attorney] took as opposing counsel, not as [the plaintiff's] counsel." The Court also noted that, although the complaint "might raise questions of professional judgment beyond the realm of common knowledge and experience, [the plaintiff's] cause of action did not arise from within the course of a professional relationship with [the decedent attorney]."

Ultimately, the Sabella Court held that, even though the Plaintiff's allegations called into question various legal strategies and choices made by the decedent attorney, such allegations, in and of themselves, do not automatically make the case one of professional liability requiring a Certificate of Merit to proceed.

Accordingly, the Superior Court held a Certificate of Merit was not required in conjunction with the filing of an abuse of process/wrongful use of civil proceedings complaint against an attorney.

A tip of the hat to Matthew P. Keris, Esquire, of the Moosic, Pennsylvania office of Marshall, Dennehey, Warner, Coleman & Goggin for bringing this case to my attention.

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