Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

SCHWALM v. ALLSTATE BOILER & CONSTRUCTION

United States District Court, M.D. Pennsylvania


May 17, 2005.

CHARLES J. SCHWALM, Plaintiff,
v.
ALLSTATE BOILER & CONSTRUCTION, INCORPORATED, et al., Defendants.

The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge

MEMORANDUM

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 granted.

  An appropriate Order follows. ORDER

  NOW, this 17th day of May, 2005, IT IS HEREBY ORDERED that:

(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.
20050517

© 1992-2005 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.