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The Merits of being Timely

Slewion v. Weinstein et al., CA No. 10-CV-5325, (E.D.PA August 6, 2012) is a case which involved a summary judgment motion based on a lack of certificate of merit. The plaintiff in the case was unable to produce the certificate of merit upon request by the court. This case was chosen because despite the rather commonplace certificate of merit absence, it also involves the court detailing certain situations where a plaintiff was allowed to move forward without a certificate of merit.

The case arose based on an accident in which the plaintiff Slewion was injured while staying at a hotel. As a result of his injury, he brought a personal injury suit against the hotel where the injury occurred. The plaintiff then selected Weinstein and his law firm, but brought this complaint after he alleged the defendants did not request a jury trial, nor did they request the correct damages. He won an arbitration case, and then appealed the arbitration in an effort to get a higher award. However, the plaintiff failed to appear at the arbitration appeal, and thus his case was closed. An interesting aside in this case is that the case was in Federal court because the plaintiff was a Liberian citizen, thus a claim which would otherwise have been litigated in State court was allowed to move forward in Federal court.

Following the appeal loss, the plaintiff filed this lawsuit in October, 2010. In response to the claims, the defendant attorneys used various legal devices in an effort to have the case dismissed. Finally, the court decided to hold a hearing on the motion to dismiss, which requires a showing that the claim alleges an action for which the court cannot grant relief.

The court first laid out the elements to win on legal malpractice inPennsylvania, or at this point in the case, to at least survive.Pennsylvaniarequires a plaintiff establish employment of an attorney or other basis for duty; failure of an attorney to exercise ordinary skill or judgment; and that the attorney's actions were the proximate cause of damages. The other requirement is that once a suit is alleged, a plaintiff must file the certificate of merit within 60 days of the law suit filing. This is an effort to keep frivolous legal malpractice suits from reaching the court system.

One important aspect of the certificate of merit is that the Federal court considered it a substantive rule as opposed to a procedural rule. If it were a procedural rule, then the rules of Federal court would have been controlling. However, the court noted that as a diversity court applying a rule of substance, they were required to apply the certificate of merit requirement. That is to say, there may be a different rule depending on what State's law applies.

After the suit was filed, no certificate of merit was forthcoming. The first thing the court does is to exemplify the plaintiff's lack of actions relating to expert testimony or that the case is one where an expert is not required. Had either of these facts existed, then the plaintiff may have been able to avoid the request for a certificate of merit.

The court also noted there was no excuse presented by the plaintiff for the lack of a certificate of merit. Despite the defendants raising the issue there was no "reasonable excuse for noncompliance." It is interesting that when the court cites this proposition, a case is cited which allowed for an untimely filing of a certificate of merit based on substantial compliance where a plaintiff compiled reports, and filed necessary documents for extensions, thus meeting the technical requirements of the rule. It suggests that a court would allow an untimely certificate of merit as long as a plaintiff shows an effort to work within the boundaries created by the rule, mainly to ensure that a suit is not frivolous.

After the court addressed the lack of certificate of merit, a discussion is maintained concerning the status of the case. Generally, when a plaintiff fails to file a certificate of merit, the case is marked as non-pros and a litigant is allowed to refile with the proper paperwork (without prejudice). The caveat is that it is without prejudice so long as the claim is still within the statute of limitations. This was another shortfall by the plaintiff. The lawsuit was automatically dismissed with prejudice because an attempt to refile the suit would have been done outside the statute of limitations. While the plaintiff failed to attain a certificate of merit, the claim lapsed, and thus, he could not pursue a charge after this dismissal.

Thus, in this case the plaintiff failed on two accounts; time and merit. It serves as a lesson that if a suit is to be filed alleging legal malpractice, there should be a clock ticking down 60 days before the suit can be overcome based on lack of certificate of merit. The other lesson is that time stops for no one, and in this case, the plaintiff waited himself into the statute of limitations and lost any chance to succeed on his claim.

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