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Home My WebLink About2000-3639 Civil RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-3639 CIVIL vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant IN RE: PETITION FOR RELIEF FROM JUDGMENT OF NON PROS BEFORE HOFFER- P.L HESS AND OLER- 1.1. OPINION AND ORDER On June 15,2000, Doris Arena, in her capacity as Power of Attorney for Evelyn Stintzcum, filed a Writ of Summons against the Defendant, West Shore Health and Rehabilitation Center ("West Shore"). Evelyn Stintzcum had been an inpatient resident at West Shore. When Evelyn Stintzcum passed away, Ralph Stintzcum ("Stinzcum"), as Executor of her estate, was substituted as the Plaintiff. On December 1 0, 2002, Stintzcum filed Discovery to Aid in Preparing Complaint. On January 14,2002 West Shore filed an objection to that Discovery. Pa.RC.P. 1042.1 et seq., which governs Professional Liability Actions, became effective January 27,2003. Stintzcum eventually filed the Complaint on June 14,2004. The Complaint against West Shore included counts of Professional Negligence, Vicarious Liability, Violation of Unfair Trade Practices and Consumer Law, Breach of Contract and Violation of Third Party Beneficiary Rights under Contract. The Complaint was not accompanied by a Certificate of Merit, nor was a Certificate of Merit filed within the time required by Pa. RC.P. 1042.3. 00-3639 CIVIL On August 16,2004 West Shore filed a Praecipe for Entry of Non Pros based upon Stintzcum's failure to file a Certificate of Merit in accordance with Pa.R.Civ.P. 1042.6. Judgment of Non Pros was entered by the Prothontary in favor of West Shore against Stintzcum on August 16,2004. Stintzcum filed a Petition for Relief from Judgment of Non Pros pursuant to Pa.R.Civ.P. 3051, on October 14,2004. Pa.R.C.P. 1042.1 et seq. applies to Professional Liability Actions. A Certificate of Merit must be filed according to 1042.3 which reads: (a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certificate of merit signed by the attorney or party that either (1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or (2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or (3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim. Pa.R.C.P. 1042.3(d) provides: The Court, upon good cause shown, shall extend the time for filing a certificate of merit 2 00-3639 CIVIL for a period not to exceed sixty days. The motion to extend the time for filing a certificate of merit must be filed on or before the filing date that the plaintiff seeks to extend. The filing of a motion to extend tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. Failure to conform with 1042.3 is governed by 1042.6 which reads: (a) the prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate The purpose ofPa.R.Civ.P. 1042.1 et seq. is to "bar any party from pursuing a professional liability claim against a licensed professional unless that party or some other party has a written statement from an appropriate licensed professional supporting a claim that the care, skill, or knowledge exercised by this licensed professional fell outside acceptable professional standards and that the conduct was a cause in bringing about the harm." Supervalu, Inc. v. Construction Eng'r Consultants, Inc., 65 Pa. D. & C. 4th 449,454 (Allegheny 2004). The Order of the Pennsylvania Supreme Court enacting Pa.R.Civ.P. 1042.1 et seq. states: "The new and amended rules shall be applicable to actions commenced on or after the effective date of this Order." Velazquez v. UPMC Bedford Mem'l Hosp., 338 F.Supp. 2d 609, 612 (W.D. Pa. 2004). Even though the Complaint was filed after the effective date of 3 00-3639 CIVIL 1042.1 et seq., Stintzcum contends that he is not in violation of 1042.1 et seq. because the action was commenced in June of 2000 with the filing of the Writ of Summons. We agree. Pa.R.Civ.P. 1007 provides that "an action may be commenced by filing with the prothonotary (1) a praecipe for writ of summons, or (2) a complaint." (emphasis added) Rule 1007 clearly states that the filing of a praecipe for writ of summons is one of two ways to commence an action in a Pennsylvania State Court. In Dravo Corp. v. White Consol., 602 F.Supp. 1136, 1139 (W.D. Pa. 1985), the defendant argued that the plaintiffs filing of a writ of summons did not commence the action and that the action was not commenced until the plaintiff filed a complaint. The United States District Court for the Western District of Pennsylvania held that the action was commenced with the praecipe. Dravco, 602 F.Supp. at 1139. In reaching its decision the court noted the difference between Pa.R.Civ.P. 1007 and Fed.R.Civ.P. 3. Id. Fed.R.Civ.P. 3 provides that "a civil action is commenced by filing a complaint." While Pa.R.Civ.P. 1007 provides that an action may be commenced by filing a Writ of Summons or a Complaint, the court emphasized that Pennsylvania's unique procedural rules allowed the action to survive. Id. This Court is not bound by the District Court's opinion. However, we believe it properly states the law. The Pennsylvania Supreme Court, in its order enacting Pa.R.Civ.P. 1042.1 et seq., stated, "the new and amended rules shall be applicable to actions commenced on or after the effective date of this order." We will, in fact we believe we must, assume that the Pennsylvania Supreme Court was well aware of its own rule Pa.R.Civ.P. 1007 in determining the effect, on pending actions, ofPa.R.Civ.P. 1042.1 et seq. Pa.R.Civ.P. 1007 specifically provides that an action may be commenced by either a complaint or a praeipe for 4 00-3639 CIVIL writ of summons. Stintzcum filed his writ before the enactment ofPa..R.Civ.P. 1042.1 et seq. Therefore, the failure to file a Certificate of Merit with the Complaint was not fatal. The entry of non pros in this case was, accordingly, in error. ORDER AND NOW, this day of January, 2005, the petition of the plaintiff for relief from judgment of non pros is GRANTED and the non pros heretofore entered is STRICKEN. BY THE COURT, Kevin A. Hess, 1. Cory 1. Snook, Esquire F or the Plaintiff Marc A. Moyer, Esquire F or the Defendant :rlm 5 RALPH STINTZCUM, JR., Executor of the Estate of Evelyn M. Stintzcum, Deceased, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 00-3639 CIVIL vs. WEST SHORE HEALTH AND REHABILITATION CENTER, Defendant IN RE: PETITION FOR RELIEF FROM JUDGMENT OF NON PROS BEFORE HOFFEK P.L HESS AND OLEK 1.1. ORDER AND NOW, this day of January, 2005, the petition of the plaintiff for relief from judgment of non pros is GRANTED and the non pros heretofore entered is STRICKEN. BY THE COURT, Kevin A. Hess, 1. Cory 1. Snook, Esquire F or the Plaintiff Marc A. Moyer, Esquire F or the Defendant :rlm