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David Nuyannes v. Nichole Thompson

November 8, 2011

DAVID NUYANNES, PLAINTIFF,
v.
NICHOLE THOMPSON, ESQUIRE, SCOTT GALLOWAY, ESQUIRE; AND JOHN DOES 1-10, DEFENDANTS.



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

MEMORANDUM

Currently pending before the Court are Motions by Plaintiff David Nuyannes to Strike the Notices of Intent Filed by Defendants Scott Galloway and Nichole Thompson or, in the alternative, for an Extension of Time to file a Certificate of Merit. For the following reasons, the Motions are granted in part and denied in part.

I. BACKGROUND

On March 24, 2011, Plaintiff David Nuyannes initiated this lawsuit against Nichole Thompson, Esq., Scott Galloway Esq., and several unnamed Defendants. The pro se Complaint alleged malpractice, perjury, false declarations before the court, conspiracy, civil action for deprivation of rights, and unlawful use of civil procedure during and after Defendants' representation of Plaintiff and his wife in their divorce, support, and custody proceedings. Both Defendants Thompson and Galloway moved to dismiss, following which Plaintiff retained counsel. Counsel filed a First Amended Complaint on September 19, 2011, thereby mooting the Motions to Dismiss. The First Amended Complaint set forth four separate causes of action: (1) professional negligence/malpractice; (2) breach of contract and/or the covenant of good faith and fair dealing; (3) breach of fiduciary duty; and (4) malicious prosecution in violation of the First and Fourteenth Amendments to the United States Constitution.

On September 23, 2011 and September 30, 2011 respectively, Defendants Galloway and Thompson filed Notices of Intent to Enter Judgment of Non Pros on the Professional Liability Claims. These Notices stated, in pertinent part, that pursuant to Pennsylvania Rule of Civil Procedure 1042.7, they intended to enter Judgment Non Pros against Plaintiff within thirty days of the respective Notices if a certificate of merit was not filed as required by Pa. R. Civ. P. 1042.3. Plaintiff thereafter filed two separate Motions to Strike these Notices of Intent, claiming that they were premature and should not have been filed until thirty-one days after the filing of the First Amendment Complaint. Defendants have responded to these Motions and Plaintiff filed Reply Briefs, making the Motions ripe for consideration.

II. DISCUSSION

Under Pennsylvania Rule of Civil Procedure 1042.3:

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 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 who this defendant is responsible deviated from an acceptable professional standard, or . . .

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

Pa. R. Civ. P. No. 1042.3(a) (emphasis added). In the absence of a certificate of merit, Rule 1042.6 provides that a defendant may seek to enter a judgment of non pros on the professional liability claim. Pa. R. Civ. P. 1042.6. In order to do so, the defendant must file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, "no sooner than the thirty-first day after the filing of the complaint," unless the court has previously granted a motion to extend the time to file the certificate and the plaintiff has failed to file it within the extended time. Id. Thereafter, under Rule 1042.7, the prothonotary shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time, provided that: (1) there is no pending motion either to determine that the filing of a certificate is not required or to extend the time to file the certificate; (2) no certificate of merit has yet been filed; (3) the defendant has attached to the praceipe a certificate of service of the notice of intention to seek entry of the judgment non pros; and (4) the praecipe is filed no less than thirty days after the date of filing of the notice of intention to enter the judgment of non pros. Pa. R. Civ. P. 1042.7.

Although this Rule stems from Pennsylvania civil procedure, the United States Court of Appeals for the Third Circuit has recognized that it constitutes substantive law that must be applied by federal courts in professional liability cases arising under Pennsylvania common law. Booker v. U.S., 366 Fed. Appx. 425, 426 (3d Cir. 2010); Iwanejko v. Cohen & Grigsby, P.C., 249 Fed. Appx. 938, 943-44 (3d Cir. 2007); Ramos v. Quien, 631 F. Supp. 2d 601, 611 (E.D. Pa. 2008); Scaramuzza v. Sciolla, 345 F. Supp. 2d 508, 509-10 (E.D. Pa. 2004). When such a case is proceeding in federal court, the failure to submit a certificate of merit is a possible ground for dismissal under Rule 12(b)(6). Martinez v. Kubala, No. Civ.A.09-0026, 2011 WL 3740285, at *2 (E.D. Pa. Aug. 24, 2011).

The current Motions argue that pursuant to Rule 1042.6(a), Defendants' Notices of Intent are premature. Specifically, Plaintiff asserts that both Notices were submitted prior to the elapse of thirty-one days after the filing of Plaintiff's First Amended Complaint, since that document was filed on ...


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