Tuesday, October 16, 2018

Non Pros Default Judgment Entered Due to Faulty Certificates of Merit Stricken Due to No Prejudice Arising From Technical Errors


In the medical malpractice case of Leo v. Geisinger Community Medical Center, No. 17-CV-5805 (C.P. Lacka. Co. Oct. Sept. 25, 2018 Nealon, J.), the court granted Plaintiff relief from non pros judgments pursuant to Pa.R.C.P. 3051, pertaining to Certificates of Merit.  

According to the Opinion, this medical malpractice action arose out of allegations pertaining to thyroid surgery and treatment.  

The Plaintiff’s Complaint asserted various malpractice claims and attached a report authored by the Defendant surgeon which arguably contained admissions regarding the alleged surgical and pathological errors.  

The Plaintiff filed Certificates of Merit as to each Defendant but inadvertently failed to check the appropriate boxes on the form to indicate that the Plaintiff possessed expert support for the negligence and vicarious liability claims or, in the alternative, was proceeding based upon the theory of res ipsa loquitur.

The Defendants filed Judgments of Non Pros pursuant to Pa.R.C.P. 1042.7 based upon the Plaintiff’s alleged failure to satisfy the Certificate of Merit requirement contained in Pa.R.C.P. 1042.3.  

When the Plaintiff filed a Petition for Relief from the Non Pros Judgments, the Clerk of Judicial Records struck those judgments. The Defendants responded with the motion at issue seeking to strike the Plaintiff’s Petition and reinstate the non pros judgments.   

After reviewing the law pertaining to relief from non pros judgments, the court noted that the Plaintiff had timely filed the Petition for Relief within nine (9) days of entries of the judgment and the parties’ submissions confirmed that the initial failure to check the indicated boxes on the Certificates of Merit forms was attributed to an oversight or mistake by the secretary for Plaintiff’s counsel during Plaintiff’s counsel’s period of medical incapacity and convalescence.

 The court also noted that, in addition to furnishing a reasonable explanation for the original default, which was subsequently cured by the filing of corrected Certificates of Merit, the Plaintiff had also provided factual support for concluding that her claims against the Defendants were supported by expert testimony and were potentially meritorious in any event.  

Judge Nealon further ruled that, since the defense counsel and the carriers were apprised by the Plaintiff’s theories of liability and the identity of her expert witness prior to the filing of the Plaintiff’s flawed Certificates of Merit, there was no prejudice to the Defendants by virtue of the Plaintiff’s belated filing of a fully compliant Certificate of Merit.   Judge Nealon therefore reasoned that Rule 1042.3’s purpose of eliminating meritless malpractice suits at their inception would not be frustrated by allowing this litigation to proceed.


Accordingly, the court found the Plaintiff was indeed entitled to relief from the non pros judgments pursuant to Pa.R.C.P. 3051.  Consequently, the Defendants’ Motion to Strike the Plaintiff’s Petition for Relief and to Re-enter the Non Pros Judgments was denied.  

Anyone wishing to review this Opinion may click this LINK.

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