United States District Court, M.D. Pennsylvania
May 17, 2005.
CHARLES J. SCHWALM, Plaintiff,
ALLSTATE BOILER & CONSTRUCTION, INCORPORATED, et al., Defendants.
The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge
Before me are Defendant Xenon Company's Motion to Dismiss and
For Entry of Praecipe of Judgment of Non Pros (Doc. 22), and
Plaintiff's Motion to Strike Defendant Xenon Company's Motion to
Dismiss and for Entry of Judgment of Non Pros and its Praecipe
for Entry of Judgment of Non Pros (Doc. 25). Also before me is
Plaintiff's Motion, Nunc Pro Tunc, For An Extension of Time to
File a Certificate of Merit as to Defendant Xenon. (Doc. 26.)
Because Plaintiff represents that he was unaware of Mr. Sen's
status as a professional engineer and that it is Mr. Sen's
services upon which Plaintiff's claim is based, Xenon Company's
motion will be denied. Moreover, because I am denying Xenon
Company's motion, I will deny Plaintiff's motion to strike as
moot. I will, however, grant Plaintiff's motion for an extension
of time to file a certificate of merit.
Xenon Company ("Xenon") contends that the dismissal and
judgment of non pros are warranted because Plaintiff failed to
attach a certificate of merit as required by Rule 1042.3 of the
Pennsylvania Rules of Civil Procedure. Xenon argues that
Plaintiff was compelled to follow Rule 1042.3 because Xenon
provided professional engineering services through Kumar Sen,
P.E., a licensed engineer. (Doc. 22, ¶ 5.) The Amended Complaint, which joins Xenon, does not contain any allegations
that the engineering services involved were performed by a
professional engineer. Moreover, Plaintiff represents that the
first he knew of a professional engineer performing the services
was when he received Xenon's motion. (Doc. 25 ¶ 13).
This is an action where jurisdiction is based on diversity of
citizenship and therefore it is governed by the substantive law
of Pennsylvania. See Erie R.R. Co. v. Tompkins, 304 U.S. 64,
78-80 (1938). When applying Pennsylvania law, the Court is to
consider the Pennsylvania Supreme Court's pronouncements on the
particular issue. See State Farm Mut. Auto Ins. Co. v.
Coviello, 233 F.3d 710, 713 (3d Cir. 2000). If the Pennsylvania
Supreme Court has not ruled on the issue, then the Court is to
consider the decisions of the lower courts in Pennsylvania. Id.
The certificate of merit required by Rule 1042.3 of the
Pennsylvania Rules of Civil Procedure has been held to be
substantive law to be applied by federal courts sitting in
diversity. See Scaramuzza v. Sciolla, 345 F. Supp. 2d 508,
509-10 (E.D. Pa. 2004). In Scaramuzza, the court relied on the
Third Circuit Court of Appeals' decision in Chamberlain v.
Giampapa, 210 F.3d 154, 158-61 (3d Cir. 2000). There, the Third
Circuit held that the New Jersey affidavit of merit statute was
to be applied as New Jersey substantive law in accordance with
Hama v. Plumer, 380 U.S. 460 (1965), and Erie R.R. Co.,
304 U.S. at 78-80. Scaramuzza held that the New Jersey affidavit of
merit rule was sufficiently similar to Rule 1042.3 so as to
warrant the same conclusion. I agree, and the Pennsylvania
certificate of merit rule, Rule 1042.3, will be applied as
substantive Pennsylvania law. That said, the Amended Complaint does not, on its face, seek to
recover against a licensed professional. Moreover, accepting
Plaintiff's representation as true, Plaintiff was unaware of the
involvement of a licensed professional, much less his identity.
Further, there is no licensed professional named as a party. It
is difficult to conclude that the action is "based upon an
allegation that a licensed professional deviated from an
acceptable professional standard." PA. R. CIV. P. 1042.3(a). The
Amended Complaint alleges defects in design and engineering by
Xenon through its agents, servants and employees. I conclude that
at the time Plaintiff filed the Amended Complaint, Rule 1042.3(a)
was not yet implicated. See Herrmann v. Pristine Pines of
Franklin Park, Inc., 64 Pa. D.&C. 4th 14 (Allegheny County
2003). Accordingly, Xenon's motion will be denied. Moreover, I
will also deny Plaintiff's motion to strike as moot.
Based on the representations of Plaintiff, he did not become
aware of the role of Mr. Sen until he received Xenon's motion. As
a result, Plaintiff seeks an extension of time to file a
certificate of merit as to Xenon. Plaintiff's motion will be
An appropriate Order follows. ORDER
NOW, this 17th day of May, 2005, IT IS HEREBY ORDERED
(1) Defendant Xenon Company's Motion to Dismiss and
For Entry of Praecipe of Judgment of Non Pros (Doc.
22) is DENIED.
(2) Plaintiff's Motion to Strike Defendant Xenon
Company's Motion to Dismiss and for Entry of Judgment
of Non Pros and its Praecipe for Entry of Judgment of
Non Pros (Doc. 25) is DENIED as moot.
(3) Plaintiff's Motion, Nunc Pro Tunc, For An
Extension of Time to File a Certificate of Merit as
to Defendant Xenon (Doc. 26) is GRANTED.
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