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French v. Commonwealth Associates

July 31, 2009

DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL, APPELLANT
v.
COMMONWEALTH ASSOCIATES, INC.; UNITED CONVEYOR CORPORATION; AND THE BABCOCK AND WILCOX COMPANY, AND/OR A/K/A BABCOCK & WILCOX CONSTRUCTION CO., INC., AND/OR A/K/A BABCOCK & WILCOX EBENSBURG POWER, INC., APPELLEES AND DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL, APPELLANT
v.
GILBERT/COMMONWEALTH, INC., OF MICHIGAN, FORMERLY KNOWN AS COMMONWEALTH ASSOCIATES, INC. A/K/A AND/OR GILBERT/COMMONWEALTH, INC., FORMERLY KNOWN AS GILBERT ASSOCIATES, INC., A/K/A AND/OR GILBERT/COMMONWEALTH INTERNATIONAL INC., APPELLEES AND DEBRA FRENCH, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN P. FRENCH, DECEASED, AND IN HER OWN RIGHT AS AN INDIVIDUAL, APPELLANT
v.
ITT INDUSTRIES/HARRISBURG DESIGN CENTER; ITT INDUSTRIES, INC., FORMERLY KNOWN AS ITT INDIANA, INC., AND/OR A/K/A D/B/A GOULDS PUMPS (IPG), INC. AND/OR A/K/A D/B/A GOULDS PUMPS (PA), INC., AND/OR A/K/A D/B/A GOULDS PUMPS, INCORPORATED; THE ESTABROOK CORPORATION; FIRST ENERGY CORP., AND/OR A/K/A/ D/B/A FIRST ENERGY GENERATION CORP., AND/OR A/K/A D/B/A FIRST ENERGY NUCLEAR OPERATING COMPANY, AND/OR A/K/A D/B/A FIRST ENERGY SERVICE COMPANY AND/OR A/K/A D/B/A FIRST ENERGY SOLUTIONS CORP., FORMERLY KNOWN AS FIRST ENERGY SERVICES CORP., AND/OR A/K/A D/B/A FIRST ENERGY VENTURES CORP., APPELLEES



Appeal from the Order June 18, 2008 In the Court of Common Pleas of Lawrence County Civil, Nos. 10251 of 2003 CA, 10312 of 2003 CA, and 10401 of 2003 CA.

The opinion of the court was delivered by: Gantman, J

BEFORE: LALLY-GREEN, GANTMAN, AND COLVILLE*fn1, JJ.

OPINION

¶ 1 Appellant, Debra French, as administratrix of the estate of Brian P. French, deceased, and in her own right as an individual, appeals from the order of the Lawrence County Court of Common Pleas, denying her petition to open and/or strike the judgment of non pros, based on the court's determination that Appellant failed to file a timely certificate of merit under Pa.R.C.P. 1042.3. Specifically, Appellant asks us to determine whether her products liability/breach of warranty claims against the Gilbert defendants ("Appellee") should survive the judgment of non pros, absent a certificate of merit. We hold the trial court erred when it failed to review Appellant's entire complaint to determine which counts sounded in professional negligence and which counts sounded in products liability/breach of warranty, so that only the professional negligence claims might be subject to a judgment of non pros for failure to file a certificate of merit. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

¶ 2 The trial court opinion fully sets forth the relevant facts and procedural history of this case as follows:

This action arises from the death of [Appellant's] decedent, Brian P. French on April 9, 2001 while Mr. French was employed at the Orion Power Plant located in West Pittsburg, Lawrence County, Pennsylvania. The [c]omplaint seeks recovery for damages arising out of the events resulting in the death of Mr. French and asserts claims of negligence, products liability and breach of warranty against [Appellees], including [Appellees] identified in the pending motions before the [c]court.

[Appellant's] Complaint contends that Mr. French, as an employee of Orion, was working as a Senior Power Plant Operator. A co-worker was running ashes in the Number 5 ash pit area of the plant. While running the ashes, a piece of metal became caught in the grinder and tripped a breaker, stopping the grinder. A co-worker turned the grinder back on, but after a few seconds, the grinder jammed again and the co-worker called to shut off a breaker and opened a door to the "dog box" receptacle area and viewed a piece of metal lodged in the grinder. The co-worker could not reach the piece of metal with his arm and therefore put his arm and head in the receptacle but still could not reach the metal. The co-worker called Mr. French for assistance. After various attempts by the co-worker and Mr. French to reach in and retrieve the metal, eventually, with the grinder turned off, Mr. French put one arm and head in the door and then put his other arm and shoulders into the door reaching for the metal. At approximately the same time, a Gould's Pump Model 3410 of Ashpit System 5 tripped and water and fluid flowed back into the "dog box." The fluid and slurry rushed in and flowed into the "dog box" in a matter of seconds. Mr. French died when his body became trapped in the "dog box" and could not be pulled out in time to save his life.

This action was commenced on April 3, 2003[,] with the filing of a praecipe for writ of summons.*fn2 A Complaint was filed on September 8, 2005. [Appellee] filed an answer and new matter on November 15, 2005. [Appellant] filed a reply to new matter on February 24, 2006.

[Appellee] filed its Praecipe for Judgment of [Non Pros] for failure to file a certificate of merit pursuant to Pa.R.C.P. 1042.6 [governing notice of intent to enter judgment of non pros] on February 11, 2008. On February 20, 2008, [Appellant] filed a certificate of merit against [Appellee] which stated that the conduct of [Appellee] deviated from acceptable professional standards and brought about the harm underlying this lawsuit. [Appellant] also filed on February 2[2], 2008 a Petition to Open and/or Strike Judgment of [Non Pros]. [Appellant's] Petition to Open and/or Strike Judgment of [Non Pros] contends that its complaint against [Appellee] sets forth a cause of action pursuant to [Restatement (Second) of Torts § 402A], strict product liability, and breach of warranty; that all causes of action against [Appellee] are predicated upon a defective product and do not fall within the scope of professional negligence and that Pa.R.C.P. 1042.3 is inapplicable to a defendant in a products liability/strict liability context.

(Trial Court Opinion, dated June 18, 2008, at 3-5). We add only that following oral argument, the court denied Appellant's petition to open and/or strike the judgment of non pros by order dated June 18, 2008. It appears from the record that the order effectively dismissed Appellant's entire complaint against Appellee, for failure to file a timely certificate of merit.

The record suggests the order did not dismiss Appellant's claims against the remaining defendants including First Energy. Appellant timely filed a notice of appeal on July 10, 2008. The trial court did not order Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.C.P. 1925(b), and Appellant filed none.

¶ 3 On appeal, Appellant presents the following issues for our review:

WHETHER...IN A PRODUCTS LIABILITY/STRICT LIABILITY CONTEXT, A CERTIFICATE OF MERIT IS REQUIRED?

WHETHER...AN ENGINEER, WHO PURSUANT TO PENNSYLVANIA LAW IS NOT NECESSARILY LICENSED, COMES UNDER THE AMBIT OF THE REQUIREMENTS OF A CERTIFICATE OF MERIT WHEN THE PLEADINGS ON THEIR FACE DO NOT MAKE AN ASSERTION THAT [A PARTICULAR PARTY] IS A LICENSED PROFESSIONAL[?]

(Appellant's Brief at 9).

¶ 4 As a prefatory matter, we observe a trial court's interlocutory order denying a petition to open and/or strike a judgment of non pros is immediately appealable "as of right pursuant to Pa.R.A.P. 311(a)(1) (stating orders refusing to open, vacate or strike off judgment are appealable as of right)." Smith v. Friends Hosp., 928 A.2d 1072, 1074 n.1 (Pa.Super. 2007). See also Krauss v. Claar, 879 A.2d 302, 303 n.4 (Pa.Super. 2005), appeal denied,586 Pa. 713, 889 A.2d 1217 (2005). Accordingly, Appellant's claims challenging the court's refusal to open and/or strike the judgment of non pros are properly before us for review.

¶ 5 Pennsylvania Rule of Civil Procedure 1042.6,*fn3 which authorizes entry of a judgment of non pros for failure to file a certificate of merit, provides: Rule 1042.6. Entry of Judgment of Non Pros for Failure to File Certification.

(a) The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that there is no pending timely filed motion seeking to extend the time to file the certificate.

Pa.R.C.P. 1042.6(a). A judgment of non pros, entered pursuant to this rule, is also subject to equitable considerations under Pa.R.C.P. 3051, which governs relief from a judgment of non pros, whether entered upon praecipe or by the court. Womer v. Hilliker, 589 Pa. 256, 272, 908 A.2d 269, 279 (2006). The Rule provides as follows:

Rule 3051. Relief from Judgment of Non Pros

(b) If the relief sought includes the opening of the judgment, the petition shall allege facts showing that

(1) the petition is timely filed,

(2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and

(3) there is a meritorious cause of action.

Pa.R.C.P. 3051(b). "[T]he ruling that a trial court makes under Pa.R.C.P. 3051 is reviewed on appeal for an abuse of discretion." Womer, supra.

Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.

Miller v. Sacred Heart Hosp., 753 A.2d 829, 832 (Pa.Super. 2000) (internal citations omitted).

ΒΆ 6 For purposes of disposition, we combine Appellant's issues. Appellant first argues a certificate of merit was unnecessary under Pennsylvania law to pursue her claims for ...


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