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Quinn Construction, Inc. v. Skanska USA Building

May 26, 2009


The opinion of the court was delivered by: McLaughlin, J.


This is a dispute over the construction of Skirkanich Hall at the University of Pennsylvania. Plaintiff Quinn Construction, Inc. ("Quinn") is a concrete subcontractor on the Skirkanich Hall project. Quinn alleges, in part, that defendants Skanska USA Building, Inc. ("Skanska"), the general contractor on the project, and Todd Williams/Billie Tsein Architects LLP ("TWBTA"), the project architect, caused Quinn to incur delays in completing its work on the project, which resulted in Quinn becoming liable for contractual penalties. Quinn's complaint brings claims against Skanska and TWBTA for negligent misrepresentation and breach of contract.

Skanska answered Quinn's complaint by asserting a counter-claim against Quinn, a cross-claim against TWBTA, and a third-party complaint against the Trustees of the University of Pennsylvania ("Penn"), who had commissioned the project, and Harleysville Mutual Insurance Company, the issuer of the surety bond for Quinn's performance. Skanska's cross-claim against TWBTA sought indemnity for any amounts for which Skanska was liable to Quinn and also brought a separate claim of negligent misrepresentation against TWBTA.

Earlier in this litigation, TWBTA moved to dismiss both Quinn's claims and Skanska's cross-claims against it on the ground that neither Quinn nor Skanska had filed a certificate of merit, as required under applicable state law for a claim of professional negligence. In a Memorandum and Order dated June 10, 2008, this Court, the Honorable Thomas N. O'Neill, Jr., then presiding, denied TWBTA's Motion. The Court found that both the language and the substance of Quinn's complaint and Skanska's cross-claim alleged only claims for negligent misrepresentation and not claims for professional negligence and the applicable state rule, Pennsylvania Rule of Civil Procedure 1042.3, was therefore inapplicable. The Court concluded:

[I]n order to succeed on their claims [of negligent misrepresentation] neither Quinn nor Skanska needs to introduce evidence of the professional standard of care for architects because negligent misrepresentation claims proceed under a theory of ordinary negligence. No expert testimony is required in this case, as the negligent misrepresentation claims and the applicable standard of care, that of a traditional reasonable man are within the jury's common understanding.

Memorandum of June 10, 2008, at 8.

On the basis of this ruling TWBTA now seeks to preclude Quinn and Skanska from introducing any expert evidence at trial as to the professional standard of care for architects or as to causation. Neither Quinn nor Skanska had yet produced their expert reports at the time TWBTA's motion was filed,*fn1 and TWBTA, therefore, is not seeking to exclude any specific opinion. Instead, TWBTA is making a general challenge to any expert opinion Quinn or Skanska may offer as to the standard of care owed by TWBTA: "Having argued that their claims were not premised upon professional liability theories, and having obtained the benefit of their arguments in avoiding the dismissal of their claims against TWBTA . . ., Quinn and Skanska must now be bound by the Court's ruling and precluded from introducing any expert testimony against TWBTA on the issues of standard of care or causation." TWBTA Mot. at 4.

The Court will deny TWBTA's motion, finding that the Court's prior ruling (which TWBTA does not challenge and which is the law of the case) does not necessarily require the preclusion of expert testimony on behalf of Quinn or Skanska. The Court's ruling, however, is without prejudice to TWBTA's ability to challenge the admissibility of Quinn and Skanska's expert testimony on other grounds.

The crux of TWBTA's motion is the effect of Pennsylvania Rule of Civil Procedure 1042.3. Subsection (a) of that rule provides that:

In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, 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 that either

(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or

(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or

(3) expert testimony of an appropriate licensed professional is unnecessary for ...

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