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Chizmar v. Borough of Trafford

June 18, 2009

JAMES CHIZMAR AND MARIANNE CHIZMAR, PLAINTIFFS,
v.
BOROUGH OF TRAFFORD, KEVIN KARAZSIA, FRANK BRUNO, BRIAN LINDBLOOM, AND CRAIG ALEXANDER, DEFENDANTS.



MEMORANDUM OPINION AND ORDER

AND NOW, this 18th day of June 2009, before the Court is the MOTION TO DETERMINE NECESSITY TO FILE CERTIFICATE OF MERIT, with brief in support, filed by Plaintiffs James Chizmar and Marianne Chizmar (Documents No. 21 and 22), the RESPONSE in opposition filed by Defendant Craig Alexander (Document No. 23), and the REPLY filed by Plaintiffs (Document No. 24). For the reasons that follow, the Court finds that, pursuant to PA. R. CIV. P. 1042.3, a certificate of merit must be filed as to the claims alleged by Plaintiffs in Count III of their Complaint against Defendant Craig Alexander.

Background

On February 13, 2009, Plaintiffs James Chizmar and Marianne Chizmar commenced this action by filing a five-count complaint that alleges multiple counts of intentional retaliatory conduct by Defendants, the Borough of Trafford, Kevin Karazsia (Mayor of Trafford), Frank Bruno (Trafford councilman), Brian Lindbloom (Trafford Code Enforcement Officer), and Craig Alexander (Solicitor of Trafford). Counts I, II and IV are brought pursuant to federal law, i.e., 42 U.S.C. § 1983, while Counts III and V are brought pursuant to Pennsylvania law under supplemental jurisdiction.

In Count III of the Complaint, Plaintiffs allege that Defendant Craig Alexander ("Alexander") conspired with Co-Defendants Borough of Trafford, Frank Bruno, and Brian Lindbloom to engage in wrongful use of civil proceedings by the filing of a lawsuit in equity against Plaintiffs on September 17, 2007 in Westmoreland County, Pennsylvania. Defendants sought injunctive relief for the alleged discharge by Plaintiffs of a foul and offensive liquid in violation of Borough Ordinance 663 as amended by Ordinance 672, Chapter 136, Section 136-3(F). Alexander, as solicitor of Trafford, prepared, verified, and filed the equity complaint. Despite Plaintiffs‟ independent determination that the liquid in question was normal runoff without foul or offensive odors, Defendants sought several continuance requests but failed to provide evidence that the Plaintiffs were violating or had violated any Trafford ordinance(s). Ultimately, all parties agreed to a voluntary dismissal of the equity action on August 27, 2008.

The instant action was filed on February 13, 2009. On May 18, 2009, Alexander filed a Notice of Intention to File Motion to Dismiss for Non Pros on Professional Liability Claim, in which he contends that a certificate of merit*fn1 pursuant to PA. R. CIV. P. 1042.3 is required to be filed for that portion of Count III applicable to Alexander, the Solicitor of Trafford.

In response, Plaintiffs filed the instant motion in which they dispute that a certificate of merit is necessary and ask the Court to make a judicial determination that same is not required. Plaintiffs contend that Pennsylvania law only requires a certificate of merit in circumstances in which a layperson would require the assistance of an expert to properly determine professional standards. Plaintiffs further maintain that expert testimony is not necessary in a professional liability action "where "the issue is simple [and] the ordinary experience and comprehension of laypersons can establish the standard of care.‟ " Pl‟s. Br. at 3 (quoting Rizzo v. Haines, 555 A.2d 58, 66 (Pa. 1989)). Plaintiffs argue that expert testimony is not required to establish the standard of care in this case, and consequently contend that a certificate of merit is not applicable or required in this case.

In response, Alexander contends that expert testimony is required in any case under the Dragonetti Act*fn2 in which a jury is called upon to assess the actions of an attorney with regard to bringing and maintaining a lawsuit on behalf of his or her client. Schmidt v. Currie, 470 F. Supp. 2d 477 (E.D. Pa. 2005), aff'd, 217 Fed. Appx. 153 (3d Cir. 2007). Plaintiffs counter the argument of Defendant by contending that PA. R. CIV. P. 1042.1 limits PA. R. CIV. P. 1042.3 to professional liability claims asserted "by or on behalf of a patient or client of the licensed professional." PA. R. CIV. P. 1042.1(a).

Plaintiffs argue that because they were not Alexander‟s clients in the equity action, a certificate of merit is not required.

Discussion

A. The Dragonetti Act

It appears that all parties agree that Count III of the Complaint is a claim brought under the Dragonetti Act against the Defendants for their actions in wrongfully filing and pursuing the underlying equity action. The Dragonetti Act authorizes a defendant in a prior wrongful civil lawsuit to bring what is essentially a legal malpractice action against the attorney who represented the plaintiff in the prior action. Schmidt, 470 F. Supp. 2d at 482. In Dragonetti actions against an attorney, as in traditional legal malpractice actions, plaintiffs have a similar burden of proving that the defendant attorney failed to perform in accordance with the acceptable professional standard. Id. Expert testimony is frequently necessary in Dragonetti claims, but the Act itself contains no explicit requirement for such evidence.

In the instant case, Plaintiffs have failed to distinguish between the requirements of a claim under the Dragonetti Act and any requirement that expert testimony may or may not be necessary at the trial of such action. Although experts may be required in a professional liability action in order to satisfy proof and certificate of merit requirements arising under PA. R. CIV. P. 1042.3, the Dragonetti Act itself does not establish a standard as to when an expert may be required. Consequently, the Court is not faced at this moment with the question of whether expert testimony will ultimately be necessary from Plaintiffs in order to sustain their burden of proof.

The Court agrees that certain claims do not require expert testimony, namely "where the matter under investigation is so simple, and the lack of skill so obvious, as to be within the range of the ordinary experience and comprehension of even non-professional persons." Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480 (3d Cir. 1979). However, until discovery is much further along in this case, the Court will not be able to determine whether Plaintiffs will be required to present expert testimony as to Count III.

The sole issue before the Court at this time is whether PA. R. CIV. P. 1042.3 requires a certificate of merit in this Dragonetti claim, regardless of whether expert testimony will ultimately be required.*fn3 Although the Dragonetti Act does not require expert testimony, a Dragonetti action that is essentially a professional liability claim (as ...


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