Third Circuit Rules that Notice Requirement of PA.R.C.P. 1042.7 is Substantive Law that Must Be Satisfied before Seeking Dismissal


In a new ruling, the Third Circuit now mandates that a defendant provide a plaintiff with a 30-day notice before seeking a dismissal due to failure to file a Pennsylvania Certificate of Merit (COM). While the requirement has long been recognized as substantive law, the Third Circuit expanded upon its decision, finding that one of Pennsylvania's conditions before dismissing an action for failure to comply with the COM requirement, fair notice to plaintiff, is similarly substantive law.

Rule 1042.3 of the Pennsylvania Rules of Civil Procedure requires a plaintiff file a COM within 60 days of filing a complaint in a professional liability action. As originally written, the Rule had but one explicit condition: dismissal could not be entered if the plaintiff's timely motion seeking to extend the 60-day window was pending. In 2006, the Supreme Court in Womer v.Hilliker, adopted two equitable exemptions to the COM requirements: substantial compliance and justifiable excuse. Backlash from the Womer decision, specifically the potential of putting a plaintiff out of court due to an attorney's mere mistake or oversight, served as the impetus for a significant change to the COM rules in 2008, most notably of which was a requirement for a defendant to place a plaintiff on 30 days' notice regarding intent to seek a dismissal.

In the matter of Brian Schmigel v. Miroslav Uchal, M.D., No. 14-3476 (3d Cir., Sept. 2, 2015), a medical malpractice action based upon diversity jurisdiction, the plaintiff alleged that appellee-defendant, negligently performed laparoscopic adjustable gastric band surgery. The patient brought suit just shy of the statute of limitations and waited several weeks before accomplishing service on the doctor. Sixty-nine days after the patient initiated suit, the doctor's attorney moved for dismissal due to the patient's failure to file a COM. The next day, the patient's attorney filed an answer to the motion, which included the COM, along with an affidavit from counsel explaining that he had consulted with an expert in a timely fashion, however, due to oversight he had not prepared a COM.

The Western District Judge, Hon. Arthur Schwab, granted the doctor's motion and dismissed the plaintiff's claim, finding that neither of the plaintiff's exceptions for allowing a late-filed complaint applied. The District Court did not address the patient's other argument that Pennsylvania's notice requirement was a condition of dismissal and, therefore, the doctor's failure to satisfy that condition precluded dismissal.

In an extensive subsequent opinion, the Third Circuit found that Pennsylvania's notice requirement was substantive law under the Eerie guidelines and, therefore, Rule 1042.7 must be applied by a federal court sitting in diversity on professional liability claims. First, the Third Circuit discerned no conflict between federal and state rules. The doctor's attorney argued that adopting the notice requirement from Rule 1042.7 obligated the Court to apply the procedure by which dismissal is accomplished in state court, namely, a filing of a praecipe with the prothonotary, which the doctor argued caused an irreconcilable conflict inasmuch as a similar means of dismissal is not available in federal court. The Third Circuit, however, was not persuaded and further noted that there was no conflict between the timelines of the COM requirement, including 30 days' notice, and a defendant's right to terminate litigation for failure to comply with the COM statute. The Court explained that a COM is not part of the complaint and, therefore, failure to file a timely COM did not preclude a defendant from filing a motion for summary judgment under Rule 56 at any time during litigation.

Comment: In applying Rule 1042.7's notice requirement to federal litigation involving professional liability claims, defendants are now obligated to provide the plaintiff with reasonable notice of intent to dismiss. While this will place a very minor burden on defendants, the Third Circuit's ruling has ensured the consistent and equitable application of the COM requirements in both federal and state courts.

For more information, please contact Caitlin J. Goodrich at or 267.295.3367 or Noah E. Katz or 570.961.2706.


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Lexi Burchmore

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