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Certifying Malpractice: All Claims Must Have Merit

James W. Cushing, Esq. on 10/21/2014

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In declining to hear the matter of Koral v. Mixon, the Pennsylvania Supreme Court (87 A.3d 816) allowed the Pennsylvania Superior Court's decision (87 A.3d 875) to affirm the trial court's decision (1859 EDA 2012) to stand. The Court in the Koral matter granted the preliminary objections filed by Defendants which led to Plaintiffs filing the appeals.

The case regarded the total break down of an attorney-client relationship between the parties. The Plaintiffs, who are attorneys, represented one of the Defendants in a personal injury matter. Unhappy with the result of the aforesaid personal injury matter, the client-Defendant hired another set of attorneys (who are also Defendants in this matter) and brought an action sounding in legal malpractice against Plaintiffs. Plaintiffs successfully had Defendants' legal malpractice claims against them dismissed via summary judgment.

Plaintiffs, upon winning summary judgment and bitter that they were sued for legal malpractice, turned around and sued their former clients and their attorneys (in the legal malpractice case) for malpractice and abuse of process and related claims.

Although the Court reviewed the matter in detail, the primary focus of the Court's decision was on the statute of limitations and the legal malpractice claim, which, as a result, is also the focus of this article.

Regarding the statute of limitations, Plaintiffs argued that the statute of limitations applicable to their case against Defendants is tolled while Defendants' case against Plaintiffs remained on appeal. The Court definitively rejected this argument, indicating that as has long been the law in Pennsylvania, a statute of limitations begins to run as soon as the right to initiate suit arises. Therefore, as Plaintiffs were aware of their abuse of process claims as soon as they were sued by Defendants, that marked the beginning of the running of the applicable statute of limitations.

The main issue of the case, however, was the legal malpractice claims, specifically whether a certificate of merit is required to bring a legal malpractice claim. Under long established Pennsylvania rules, a certificate of merit is required for any action against a licensed professional who allegedly deviated from an acceptable professional standard (see Pa.R.C.P. 1042.3(a)).

Initially, Plaintiffs argued that they did not need to file a certificate of merit as they were not claiming professional negligence but, rather, mere ordinary negligence. In support of their contention, Plaintiffs pointed out that their Complaint made no mention of professional malpractice. The Court rejected this argument. The Court, upon its detailed review of Plaintiff's Complaint, highlighted the fact that, although not specifically identified as professional negligence, the substance of Plaintiffs' claims was, in actuality, professional negligence. Merely avoiding the use of the terms (i.e.: "professional malpractice") cannot overcome the obvious implication of the words used.

Finally, and perhaps most significantly, the Court clarified the number of certificates of merit that must be filed. Despite making the above argument regarding the kind of negligence they say Defendants committed, Plaintiffs did, in fact, file a certificate of merit. Even though Plaintiffs brought suit against nine (9) attorneys and/or law firms, they only filed a single certificate of merit covering all nine (9). The Court decided that the applicable rule cited above does not allow for this sort of omnibus certificate of merit. Instead, said the Court, a plaintiff in a legal practice claim must file a certificate of merit for each and every professional against whom the claims are made.

The Court's ruling is clear: if pursuing malpractice claims, be sure to file within two (2) years of learning of the malpractice and secure a certificate of merit for each professional defendant.

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