Wade Clark Mulcahy LLP

<p style="text-align: justify;">The Pennsylvania Superior Court recently analyzed when a certificate of merit is required for a joinder complaint.  In <em><a href="https://www.wcmlaw.com/wp-content/uploads/2019/03/Kelly-Systems-Inc.-v.-Leonard-S.-Fiore-Inc..pdf">Kelly Systems, Inc. v. Leonard S. Fiore, Inc.</a> </em>, Leonard S. Fiore, Inc. was hired to construct a building “core and shell” and, in turn, hired a firm called OGP Architects, LLP to design the building.  Fiore also subcontracted Kelly Systems, Inc. to install exterior wall panels.  During construction, Kelly Systems submitted a change order to Fiore contending that OGP provided an impossible-to-construct design of the wall paneling and provided its own field solution, which would cost an additional $225,000.  Fiore rejected the change order, and after Kelly Systems asked it to reconsider, never responded.  Kelly Systems went ahead with its own field solution and later sued Fiore for the additional costs, arguing that the designs it was provided with necessitated the additional monies.</p>
<p style="text-align: justify;">Subsequently, Fiore filed a joinder complaint adding OGP.  In response, OGP sought a judgment of <em>non pros</em> for Fiore’s failure to attach a certificate of merit, which is ordinarily required for professional liability claims in Pennsylvania.  Fiore countered by filing a motion for a determination that it was not required to do so, which the trial court granted.</p>
<p style="text-align: justify;">On appeal, the issue was whether the allegations in Fiore’s joinder complaint regarding the designs arose from the same “acts of negligence”.  Pennsylvania Rule of Civil Procedure 1042.3(a) provides that: “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.”  However, under Rule 1042.3(c)(2), a defendant who joins a licensed professional to an action is not required to file a certificate of merit unless the joinder is based on “acts of negligence that are unrelated to the acts of negligence that are the basis for” the plaintiff’s claims.</p>
<p style="text-align: justify;">Here, the court concluded that since the joinder complaint was based on the same allegations of negligence as the original complaint, no certificate of merit was needed.  Accordingly, this case confirms the circumstances under which a certificate of merit is needed in connection with a joinder complaint.</p>
Thanks to Bob Turchick for his contribution to this post.  Please email Colleen Hayes with any questions at <a href="mailto:chayes@wcmlaw.com">chayes@wcmlaw.com</a>