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HomeMy WebLinkAbout2003-6685 Civil JUSTIN P. VARNER, MATHEW B. VARNER, CHRISTOPHER R. VARNER and DANIELLE CANNING, PLAINTIFFS IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. CLASSIC COMMUNITIES CORPORATION, RONALD and LAURA GABRIEL and BARTON & ASSOCIATES, INC., DEFENDANTS 03-6685 CIVIL TERM IN RE: MOTION OF PLAINTIFFS TO STRIKE OR OPEN A JUDGMENT OF NON PROS OPINION AND ORDER OF COURT Bayley, J., January 11, 2005:-- On December 31, 2003, plaintiffs, Justin P. Varner, Mathew B. Varner, Christopher R. Varner and Danielle Canning filed a complaint against defendants Classic Communities Corporation, Ronald and Laura Gabriel, and Barton & Associates, Inc. Plaintiffs allege in their complaint that Classic Communities Corporation constructed a townhouse for Ronald and Laura Gabriel at 2803 Sunset Court, Gratham, Pennsylvania. Barton & Associates, Inc., is in the business of providing architectural design and planning. On January 6, 2002, plaintiffs were in the townhouse when there was a fire. The fire was caused by and spread quickly because of multiple BOCA Code violations. Barton & Associates, Inc. breached a duty that the premises would comply with the BOCA Code. Justin P. Varner, Mathew B. Varner and Danielle Canning seek 03-6685 CIVIL TERM damages for injuries sustained in the fire. Christopher R. Varner seeks damages for emotional and mental anguish on having experienced the death of his mother, Betty Bowman, in the fire, and the injuries to the others. Plaintiffs filed an amended complaint on March 18, 2004, in which they repeat the allegation that Barton & Associates, Inc. breached a duty to abide by the provisions of the applicable BOCA Code. Plaintiffs have never filed a certificate of merit under Pa. Rule of Civil Procedure 1042.3(a) in support of their claim against Barton & Associates, Inc., nor did they ever move for an extension of a deadline to file such a certificate under Rule 1043.3(d). On June 16, 2004, Barton & Associates, Inc., pursuant to Pa. Rule of Civil Procedure 1042.6(a), filed a praecipe to enter a judgment of non pros against plaintiffs for failure to file a certificate of merit under Rule 1042.3(a). Judgment of non pros was entered by the prothonotary on June 17, 2004. On June 28, 2004, plaintiffs filed a petition to strike or open the judgment. That petition is ready for decision. Pa. Rule of Civil Procedure 1042.3 provides: (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- 03-6685 CIVIL TERM (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. . . . (d) The court, upon good cause shown, shall extend the time for filing a certificate of merit 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. (Emphasis added.) Rule 1042.1 (b)(iii) defines "licensed professional" to include an architect. Rule 1042.6 provides: (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. (Emphasis added.) I. In support of their motion to strike the judgment of non pros, plaintiffs maintain that: (1) their amended complaint does "not contain any specific statement asserting a professional liability claim against Defendant, Barton & Associates, Inc.," and (2) "The failure of [the architect] to raise by preliminary objection or answer the issue of whether this was a "Professional Liability Action" and its failure to comply with Pa.R.C.P. 1 042.2(b) show fatal defects on the face of the record prior to any entry of the Judgment of [non pros] pursuant to Pa.R.C.P. 1042.6." Clearly, plaintiffs' complaint against the architect, although inartfully drafted, is a claim of negligence in the performance of a professional duty, which was a cause of the fire on January 6, 2002. -3- 03-6685 CIVIL TERM Plaintiffs' argument is otherwise disingenuous when they now represent that they are prepared to prove through a qualified expert that the care, skill and knowledge exercised by the architect fell outside accepted professional standards and was a cause in bringing about plaintiffs' damages. Rule1 042.6 specifically sets forth the procedure for relief upon the failure of a plaintiff to file a certificate of merit when required. It is to file a praecipe with the prothonotary for the entry of a judgment of non pros, not a preliminary objection. II. In Koken v. Lederman, 840 A.2d 446 (Pa. Commw. 2003), the Commonwealth Court, in a case in which it concluded that a petition to strike or open a judgment of non pros for failure to file a certificate of merit in a professional liability case, noted: Pursuant to Pennsylvania Rule of Civil Procedure No. 3051, which governs "relief from judgment of non pros," if the "relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action." Pa. RC.P. No. 3051 (b)(1 )-(3). This rule applies "in all cases in which relief from a judgment of non pros is sought whether the judgment has been entered by praecipe as of right or by the court following a hearing." Explanatory Comment-1991 to Pa. RC.P. No. 3051. (Emphasis added.) Plaintiffs' petition to open the judgment of non pros was timely filed nine days after the judgment was entered. Plaintiffs maintain that the judgment should be opened because: (1) "counsel was unaware that Pa.RC.P. Rule 1042.1 et seq. applied to actions wherein the defendant failed to file preliminary objections against the Professional Liability Action contained in the Amended Complaint," (2) at no time prior -4- 03-6685 CIVIL TERM to the entry of the judgment was counsel for plaintiffs informed by counsel for defendant of an intention to file for entry of a judgment of non pros, (3) failing to file preliminary objections waives any right to rely on Rule 1042, (4) "Plaintiff's have a meritorious claim, and intend to prove through the use of a qualified expert that the care, skill or knowledge exercised or exhibited by Barton & Associates in the treatment, practice or work that is the subject of the Amended Complaint, fell outside acceptable professional standards and was a cause of bringing about these plaintiffs damages," and (5) it "would be inequitable to deny these Plaintiffs the right to proceed with the claims stated in the Amended Complaint under the above described circumstances." In Hoover v. Davila, _ A.2d (2004 WL 1879849 Pa. Super.), plaintiff, on February 12, 2003, filed a complaint alleging medical negligence against three medical professionals. Due to the inability to obtain service, the complaint was reinstated on March 10, 2003, and again on April 10, 2003. On April 29, 2003, two defendants filed a praecipe for entry of a judgment of non pros because no certificate of merit had been filed nor had plaintiff obtained an extension to file a certificate. A judgment of non pros was entered. On May 28, 2003, plaintiff filed a motion to extend the time for filing a certificate of merit. Since a judgment of non pros was already entered in favor of two defendants, the trial court treated it as a motion for an extension with respect to the third defendant. Plaintiff subsequently filed a petition to open and strike the judgment of non pros against the other two defendants. That petition contained certificates of merit dated July 3, 2004, to be filed against all three -5- 03-6685 CIVIL TERM defendants. The trial court denied that petition to open or strike the judgment of non pros and the motion for an extension of time to file a certificate of merit. On appeal, the Superior Court of Pennsylvania affirmed. Plaintiff argued that the judgment of non pros should not have been stricken because the sixty day time period under Rule 1042.3(a) should run from the date the complaint was last reinstated, not the date it was filed. The Court noted that while Rule 1 042.3(d) does not impose any restriction on the number of extension orders that a court may enter, the sixty day time period for the filing of a certificate of merit or for requesting an extension of time "clearly runs from the date of the filing of the original complaint. . ." The Court further stated: [o]n the face of the record, appellant cannot meet the requirement of the rule that any delay be reasonably explained. Appellant's purported explanation is that he was unaware of the new rule of civil procedure requiring certificates of merit or that he did not understand the rule. We find this explanation does not amount of just cause for the untimely filing. In the case sub judice, plaintiffs did not file a motion for an extension of time to file a certificate of merit within either sixty days of filing the complaint on December 31, 2003, or filing the amended complaint on March 18, 2004. Hoover v. Davila, supra, is controlling. It is of no import that counsel was unaware that Rule 1042.1 et seq. applied to actions in which defendant did not file preliminary objections. There is no requirement that defense counsel provide advance notice to plaintiff or their counsel of an intent to file a judgment of non pros under Rule 1042.6. Failing to file preliminary objections does not waive any right to rely on Rule 1042. et seq. Plaintiffs have not met the requirement that any delay be reasonably explained. Absent a reasonable -6- 03-6685 CIVIL TERM explanation or legitimate excuse for delay, equitable considerations are not applicable to an analysis of whether the judgment of non pros should be opened for failure to file a certificate of merit. Accordingly, for the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this day of January, 2005, the petition of plaintiffs to strike or open the judgment of non pros entered on June 17, 2004, against defendant, Barton & Associates, Inc., IS DENIED. By the Court, Edgar B. Bayley, J. Debra Tedeschi Herron, Esquire P.O. Drawer 2040 Clarksburg, WV 26302 H. Anthony Adams, Esquire 49 West Orange Street, Suite 3 Shippensburg, PA 17257 For Plaintiffs Gunther O. Carrie, Esquire Craig H. O'Neill, Esquire 475 Allendale Road, Suite 200 King of Prussia, PA 19406 For Defendant Barton & Associates, Inc. Timothy J. McMahon, Esquire 4200 Crums Mill Road, Suite B Harrisburg, PA 17112 For Defendants Ronald and Laura Gabriel Paul J. Walsh, III, Esquire -7- 03-6685 CIVIL TERM Gulf Tower, Suite 2400 707 Grant Street Pittsburgh, PA 15219 For Classic Communities Corporation :sal -8-