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Pennsylvania Superior Court Holds The Certificate Of Merit Requirement Does Not Apply To Third Party Claims Related To Plaintiff’s Claims

In Kelly Systems, Inc. v. Leonard S. Fiore, Inc., 2018 WL 5629644 (Pa. Super. Ct. October 31, 2018), the Pennsylvania Superior Court held the requirement to file a Certificate of Merit to support a professional negligence claim does not apply to third party complaints.

Leonard S. Fiore, Inc. (“Fiore”) was hired to design and build the “core and shell” of a building in State College, Pennsylvania. Fiore subcontracted OGP Architects, LLP (“OGP”) to provide architectural designs for the Project and subcontracted with Kelly Systems, Inc. (“Kelly”) to install exterior wall panels. Kelly used the OGP drawings to calculate its bid for the Project.

During construction, Kelly requested a change order due to defects in OGP’s architectural drawings that resulted in its bid being too low. After Fiore rejected the change order, Kelly filed a suit against Fiore seeking the additional costs caused by the allegedly defective design and filed a proper Certificate of Merit to support its claims against Fiore.

Fiore filed a third-party suit against OGP.  In response, OGP filed a Motion to Dismiss the third-party claims.  OGP argued Fiore’s claim should be dismissed because Fiore failed to file a Certificate of Merit as required under Pennsylvania Rules of Civil Procedure 1042.3.

Rule 1042.3 provides:

“In any action based upon an allegation that licensed professional deviated form an acceptable professional standard, the attorney for the plaintiff…, 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,”

The trial court held Fiore was not required to file a Certificate of Merit because Fiore’s negligence claim was related to the claims raised in Kelly’s Complaint. The Court noted Rule 1042.3(c)(2), which provides:

“A defendant … who has joined a licensed professional as an additional defendant … need not file a certificate of merit unless the joinder or cross-claim is based on acts of negligence that are unrelated to the acts of negligence that are the basis for the claim against the joining or cross-claiming party.”

On appeal, the Court found that because Fiore would have to use the same expert testimony and the same evidence as Kelly to show the design was defective, Fiore’s claims were based on the same acts of negligence as those asserted by Kelly, who had filed a Certificate of Merit to support the claims.  The Court held Fiore was not required to file a Certificate of Merit in order to file a third-party claim.

The Court’s ruling affirms that Pennsylvania law only requires a Certificate of Merit from a plaintiff who initiates an action against a professional. A third-party plaintiff asserting claims related to the underlying design defect claims (or a “pass through” claim) is not required to comply with the provision of Rule 1402.3.