In 2008, the Pennsylvania Rules of Civil Procedure concerning Professional Liability Actions were amended raising new considerations in the defense of these actions. Specifically, Rules 1042.6 and 1042.7 were amended to require a Defendant seeking non pros for plaintiff’s failure to file a certificate of merit to first file a Notice of Intent to Enter Judgment of Non Pros before filing a Praecipe for Non Pros. The amended rules applied to all pending actions in which a judgment of non pros for failure to file a certificate of merit had not been entered as of the effective date.

            The explanatory comment to Rule 1042.6 explains that these new rules were enacted to address concerns with the prior rules that permitted entry of judgment of non pros in situations where a plaintiff believed that a certificate of merit was not necessary, resulting in a dismissal of the case without notice. The new rules give a plaintiff an opportunity to seek a court determination as to the necessity of the certificate of merit after a Notice of Intent to Enter Judgment of Non Pros is received by filing a motion with the Court.

            Rule 1042.6(a) provides that the Notice of Intent to Enter Judgment of Non Pros may not be filed sooner than the 31st day after the Complaint is filed. Rule 1042.7 requires that a defendant wait at least 30 days after filing the Notice before filing a Praecipe for Non Pros. Before the expiration of that 30-day period, the plaintiff may file a Motion for Determination as to whether a Certificate of Merit is necessary, or file a Certificate of Merit.

What It Means to You

This situation often arises in a case where a plaintiff has filed an action against a professional as defined by Rule 1042.1, but fails to assert claims of “professional negligence,” and thus fails to file a Certificate of Merit. When defending any claim against a licensed professional as defined by Rule 1042.1, where a Certificate of Merit has not been filed, it is crucial to be aware of the nuances of these rules.