The opinion
J-A13043-18
2018 PA Super 393
KELLY SYSTEMS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEONARD S. FIORE, INC. :
:
:
v. :
:
:
OGP ARCHITECTS, LLP, :
:
Appellant : No. 1714 WDA 2017
Appeal from the Order October 25, 2017
in the Court of Common Pleas of Blair County,
Civil Division at No(s): No. 2017-GN-115
BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.
OPINION BY MUSMANNO, J.: FILED OCTOBER 31, 2018
OGP Architects, LLP (“OGP”), appeals from the Order granting the
“Motion for Determination as to Necessity of Certificate of Merit” filed by
Leonard S. Fiore, Inc. (“Fiore”), and declaring that Fiore was not required to
file a Pa.R.C.P. 1042.3 Certificate of Merit in support of its Pa.R.C.P. 2252
Complaint (the “Joinder Complaint”) to join OGP as an additional defendant.
We affirm.
Fiore, a general contractor, was hired to build the “core and shell” of a
building in State College, Pennsylvania (the “Project”). Fiore entered into a
contract (the “Kelly Subcontract”) with Kelly Systems, Inc. (“Kelly”), to install
exterior wall panels on the building. Fiore entered into a separate contract
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(the “OGP Subcontract”) with OGP to provide architectural designs for the
Project. Kelly used the OGP drawings to calculate its bid for the Project and
to complete construction.
On October 4, 2016, Kelly requested a change order with Fiore, pursuant
to the terms of the Kelly Subcontract,1 allegedly due to OGP’s architectural
drawings calling for an “impossible to construct” mounting system. Kelly
advised Fiore that its proposed solution would cost $225,126.18 more than
the original contract price. Fiore rejected the change order. Kelly
subsequently submitted a letter to Fiore, requesting that Fiore reconsider the
rejection, and advising that Kelly intended to proceed with its proposed
solution. Fiore never accepted the change order, and Kelly continued to work
on the Project, including implementing its proposed solution to the allegedly
defective designs.
On January 12, 2017, Kelly filed a Complaint (“Kelly’s Complaint”)
against Fiore, seeking, inter alia, payment of $225,000.00 for the additional
____________________________________________
1 Paragraph 9 of the Kelly Subcontract provides, in relevant part, as follows:
Before proceeding with any [w]ork involving possible claims by
[Kelly] for extra compensation above the [original contract price],
[Kelly] shall submit in writing to [Fiore] a detailed estimate of the
price for such extra [w]ork and materials and shall secure from
[Fiore] a written order describing such work and fixing [Kelly’s]
compensation. … Any change order work performed without
[Fiore’s] prior written authorization pursuant to the foregoing
procedures shall be at [Kelly’s] risk without right of payment or
reimbursement under contract, quantum meruit or otherwise.
Kelly Subcontract, 7/20/15, at ¶ 9 (italicization added).
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costs caused by the allegedly defective design. Fiore filed an Answer, in which
it argued, inter alia, that it is not responsible for the additional costs allegedly
incurred by Kelly. Fiore subsequently filed the Joinder Complaint, joining OGP
as an additional defendant, and incorporating, without admitting, the
allegations made in the Complaint. Fiore additionally alleged that “OGP’s
design documents and information provided under the [OGP S]ubcontract
deviate from the acceptable professional standards … [and] to the extent any
of Kelly’s alleged damages, in whole or in part, result from OGP’s acts or
omissions … OGP is responsible and liable for Kelly’s damages.” Joinder
Complaint, 3/17/17, at ¶¶ 17-18.
OGP filed a Pa.R.C.P. 1042.6 Notice of intent to enter judgment of non
pros against Fiore, for Fiore’s failure to file a certificate of merit with the
Joinder Complaint. Subsequently, Fiore filed a Motion seeking a determination
by the trial court as to whether Fiore was required to file a certificate of merit.
Following a hearing and submission of briefs, the trial court entered an Order
declaring that Fiore was not required to file a certificate of merit, because
Fiore’s negligence claim is related to the claims raised in Kelly’s Complaint.
OGP thereafter filed the instant appeal.
OGP’s issue on appeal is as follows:
Whether the trial court erred in finding that [Kelly] pled a
negligence claim against Fiore in submitting defective design
specifications and/or in rejecting a change order as a result[,] and
that therefore[,] Fiore’s claims for contribution and
indemnification against OGP by incorporation of [Kelly’s] “bogus”
averments[,] without verifying the truth thereof in the [J]oinder
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[C]omplaint[,] related to the “acts of negligence” set forth in
[Kelly’s] [C]omplaint, which then did not require Fiore to file a
certificate of merit under [Pa.R.C.P.] 1042.3(C)(2)[?]
Brief for Appellant at 6.
Prior to addressing OGP’s claim, we must determine whether this Court
has jurisdiction to entertain the instant appeal.2 See Pennsy Supply, Inc.
v. Mumma, 921 A.2d 1184, 1198 n.10 (Pa. Super. 2007) (stating that “[t]his
Court may raise matters regarding its jurisdiction sua sponte.”). This Court
“has jurisdiction to entertain appeals taken (1) as of right from a final order,
… (2) from interlocutory orders by permission, … (3) from certain interlocutory
orders as of right, … and (4) from certain collateral orders....”
Redevelopment Auth. v. Int'l Ins. Co., 685 A.2d 581, 585 (Pa. Super.
1996) (citations omitted).
OGP alleges that its appeal is from a collateral order pursuant to
Pa.R.A.P. 313. See Brief for Appellant at 2. OGP argues that the trial court’s
Order can be addressed without analyzing the underlying central issue of the
case, i.e., Fiore’s entitlement to damages, because whether Fiore must file a
certificate of merit is a “procedural mechanism that does not resolve any
substantive aspect of the claims.” Id. According to OGP, resolving this issue
is of great importance, because the rule regarding certificates of merit
____________________________________________
2 On January 2, 2018, this Court issued a Rule to Show Cause why OGP’s
appeal should not be quashed as an interlocutory appeal. On January 19,
2018, following a Response from OGP, the Rule was discharged, but the issue
was deferred for review by this panel.
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“minimize[s] the time and expense that may be incurred” by the parties to
the litigation. Id. OGP asserts that if its claim is not reviewed now, the
protection granted by the certificate of merit rule – avoiding litigation of
baseless claims – will be irreparably lost. Id. at 2-3.
The collateral order doctrine
permits a party to take an immediate appeal as of right from an
otherwise unappealable interlocutory order if the order meets
three requirements: (1) the order must be separable from, and
collateral to, the main cause of action; (2) the right involved must
be too important to be denied review; and (3) the question
presented must be such that if review is postponed until after final
judgment, the claim will be irreparably lost.
Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011) (citing Pa.R.A.P.
313(b)).
Rule 313 must be interpreted narrowly, and the requirements for
an appealable collateral order remain stringent in order to prevent
undue corrosion of the final order rule. To that end, each prong
of the collateral order doctrine must be clearly present before an
order may be considered collateral.
Melvin v. Doe, 836 A.2d 42, 46–47 (Pa. 2003) (citation omitted). “In
adopting a narrow construction, we endeavor to avoid piecemeal
determinations and the consequent protraction of litigation. Such piecemeal
litigation imposes a substantial burden on the orderly administration of
justice.” Rae v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121, 1129 (Pa. 2009)
(citations and quotation marks omitted).
Here, the resolution of whether Fiore must file a certificate of merit
requires no analysis of the merits of Fiore’s underlying claim. See K.C. v.
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L.A., 128 A.3d 774, 778 (Pa. 2015) (stating that “an order is separable from
the main cause of action if it is entirely distinct from the underlying issue in
the case and if it can be resolved without an analysis of the merits of the
underlying dispute.” (quotation marks omitted)).
Additionally, there is a strong public interest in deterring frivolous
negligence claims. See Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999)
(stating that “[o]nly those claims that involve interests deeply rooted in public
policy can be considered too important to [be] denied review.” (quotation
marks and citation omitted)); see also Warren v. Folk, 886 A.2d 305, 307
(Pa. Super. 2005) (stating that “[t]he goal of the certificate of merit is to weed
out clearly nonmeritorious lawsuits early in the litigation process.”).
Finally, OGP’s claim that Fiore must file a certificate of merit would be
irreparably lost if the matter proceeded to trial. Accordingly, OGP’s appeal is
from a collateral order, and we will review its claim on the merits.
“[T]he interpretation and application of a Pennsylvania Rule of Civil
Procedure presents a question of law. … Accordingly, … our standard of
review is de novo, and our scope of review is plenary.” Barrick v. Holy Spirit
Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 808 (Pa. Super.
2011) (citations and quotation marks omitted).
OGP contends that the trial court erred in finding that Kelly pled a
negligence claim against Fiore, which allowed Fiore to not file a certificate of
merit for its negligence claim against OGP. Brief for Appellant at 16, 19. OGP
argues that Kelly’s claims against Fiore are contract-based, whereas Fiore’s
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claims against OGP are tort-based. Id. at 19-21. OGP claims that Kelly did
not allege any acts of negligence against Fiore, but instead, all of the
averments in Kelly’s Complaint revolve exclusively around the denial of Kelly’s
change order, which process is defined in the Kelly Subcontract. Id. at 20.
OGP further alleges that the trial court failed to consider that Kelly’s claims
are based on the implied duty of good faith and fair dealing, which “arises
under the law of contracts, not under the law of torts.” Id. at 21 (citations
omitted). Lastly, OGP alleges that it would be contrary to the spirit of the
certificate of merit requirement for this Court to allow Fiore to pursue a
professional negligence claim solely by “incorporation of [the] bogus
averments” set forth in Kelly’s Complaint, “without admitting the truth
thereof.” Id. (quotation marks omitted).
In its Opinion, the trial court addressed OGP’s claim as follows:
Specific rules of civil procedure apply for an action in
professional liability by a patient or client of a licensed professional
or a partnership, unincorporated association, corporation, or other
entity responsible for a licensed professional who deviated from
the professional standard. Pa.R.C.P. 1042.1[]. The rule lists
professions covered by the rules, including architects. Pa.R.C.P.
1042.1(iii). An action in professional negligence is different from
an action in ordinary negligence[,] as a complaint in professional
liability concerns negligence which breaches a professional
standard. See Merlini ex rel. Martini v. Gallitzin Water Auth.,
980 A.2d 502, 507 (Pa. 2009). When a party alleges a deviation
from the professional standard, the party is required to file a
[c]ertificate of [m]erit either with the complaint or within sixty
(60) days of filing the complaint. Pa.R.C.P. 1042.3(a). The
[c]ertificate of [m]erit must state either:
(1) an appropriate licensed professional has supplied
a written statement that there exists a reasonable
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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 prosecution of the
claim.
Pa.R.C.P. 1042.3(a)(1)-(3). However, the filing of a [c]ertificate
of [m]erit is not always required in certain instances relating to
joinder or cross-claims. …
[] A defendant or an additional defendant who has
joined a licensed professional as an additional
defendant or asserted a cross-claim against a licensed
professional need not file a certificate of merit unless
the joinder or cross-claim is based on acts of
negligence that are unrelated to the acts of negligence
that are the basis for the claim against the joining or
cross-claiming party.
Pa.R.C.P. 1042.3(c)(2).
….
Fiore contends that it is not required to file a [c]ertificate of
[m]erit, by and large, on the fact that it incorporated Kelly’s
[C]omplaint into their [Joinder] [C]omplaint and therefore[,] the
“acts of negligence” are related to the “acts of negligence” in
[Kelly’s C]omplaint. OGP argues that Kelly’s claims are in
contract[,] and by incorporating Kelly’s [C]omplaint, Fiore only
alleges a contract claim on a contract where OGP is not a party,
[thereby] making Rule 1042.3(c)(2) inapplicable. Because Rule
1042.3(c)(2) turns on whether the negligence alleged in the
[J]oinder [C]omplaint is unrelated to the negligence [alleged in]
[Kelly’s Complaint], the [c]ourt must determine whether [Kelly’s
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C]omplaint sounds in either contract or negligence. If the claims
in [Kelly’s C]omplaint are contract claims, then any negligence
alleged in Fiore’s [Joinder] [C]omplaint is new negligence,
unrelated to the claims in [Kelly’s C]omplaint, and would force
Fiore to file a [c]ertificate of [m]erit to assert any professional
liability claims on OGP. If the claims in [Kelly’s C]omplaint are in
negligence, then the [c]ourt must analyze the claims to see if the
claims are related[, thereby qualifying] Fiore’s [Joinder]
[C]omplaint [] under the rule.
To determine whether a complaint sounds a claim in
contract or in negligence, courts in Pennsylvania have used an
evolving doctrine known as the “gist of the action” doctrine. See
Bruno v. Erie Ins. Co., 106 A.3d 48, 61-62 (Pa. 2014); Zell v.
Arnold, 2 Pen. & W. 292 (Pa. 1830); Homey v. Nixon, 61 A.
1088 (Pa. 1905); Bash v. Bell Tel., 601 A.2d 825 (Pa. Super.
1992); eToll Inc. v. Elias/Savion Adver., 811 A.2d 10 (Pa.
Super. 2002). In Bruno, the Supreme Court articulated the legal
principles a court must use to determine the gist of the action
doctrine, stating that a court must make a duty-based inquiry to
determine whether the claim is in tort or contract:
The substance of the allegations comprising a claim in
a plaintiff’s complaint are of paramount importance,
and, thus, the mere labeling by the plaintiff of a claim
as being in tort, e.g., for negligence, is not controlling.
If the facts of a particular claim establish that the duty
breached is one created by the parties by the terms
of their contract—i.e., a specific promise to do
something that a party would not ordinarily have been
obligated to do but for the existence of the contract—
then the claim is to be viewed as one for breach of
contract. If, however, the facts establish that the
claim involves the defendant’s violation of a broader
social duty owed to all individuals, which is imposed
by the law of torts and, hence, exists regardless of the
contract, then it must be regarded as a tort.
Bruno, 106 A.3d at 68. Thus, if the claim offered is for a breach
of a specific promise in the contract, then the claim will lie in
contract[,] as the duty of the parties are purely contractual.
However, if the claim is not based on the specific contractual
promise, but rather on a duty that is owed independent of any
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contractual promises, then the claim will lie in tort, even if the
parties’ relationship originates from the contract.
The relevant portions of [Kelly’s C]omplaint … relate to a
claim of monetary damages due to the defective specifications[,
and state as follows]:
***
6. Additionally, the architectural details regarding the
mental [sic] panels were defective, in that they
specified a system which was not possible to
construct, as a result of which Kelly incurred extra
costs exceeding $225,000.00. Kelly promptly and
timely notified Fiore of the defects in the architectural
details and of the fact that Kelly was incurring
additional costs as a result thereof, and provided Fiore
with an estimate of the extra costs together with a
written request for a change order, on October 4,
2016. A true and correct copy of the aforesaid written
request for a change order is hereto attached marked
as Exhibit B.
7. Fiore, on or about November 14, 2016, rejected
Kelly’s request for a change order for extra costs
resulting from the defective specifications. On
December 1, 2016, Kelly, through counsel, requested
in writing that Fiore reconsider its rejection. A true
and correct copy of the written request for
reconsideration is hereto attached marked as Exhibit
C. Fiore has refused to reconsider its rejection of
Kelly’s request.
II. COUNT TWO - ACTION FOR DAMAGES RESULTING
FROM DEFECTIVE SPECIFICATIONS
…
12. As a result of the defective specifications as
outlines [sic] in Exhibits B and C hereto, and at the
direction of Fiore and the architect on the Project,
Kelly was forced to expend in excess of $225,000 in
additional costs in order to complete the metal panel
portion of the Project.
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13. Despite Kelly’s demand for a change order to
recover those extra costs, Fiore has failed and refused
same.
(Kelly[’s] Complaint, ¶¶ 6-7, 12-13). Attached to [Kelly’s
C]omplaint are Exhibits B (a letter by Kelly to Fiore detailing their
request for a change order and their estimates, totaling upwards
of $225,000) and C (a letter from Kelly’s counsel to Fiore, stating
that the architectural details were inconsistent and impossible to
construct[,] and that attempts at resolution were rejected by the
architect, which forced Kelly to take more time and spend more
money to finish their portion of the project).
Kelly’s claim of monetary damages due to defective
specifications is opaque on the issue of whether their claim is
contractual in nature or sounds in negligence, whether the
damages resulting to Kelly were because of the design defects, or
whether the claim is that Fiore did not approve the change order
due to the design defects, and thus, would be a contractual claim
(as OGP argues). Paragraph 12 appears to claim negligence[,]
stating that, as of a result of defective specifications, and at the
direction of Fiore and the architect (OGP), Kelly was damaged in
the amount of $225,000, spent by Kelly to finish the project.
Paragraph 13, however, indicates that Kelly attempted to recover
those costs through the [Kelly Sub]contract, but Fiore has refused
to reimburse Kelly. In paragraph 6, Kelly claims that it timely
notified Fiore of the change order[,] which is required [by] the
[Kelly Sub]contract. Fiore, in its Answer, denied that Kelly was
timely in its request, which would be dependent upon the [terms
of the Kelly Sub]contract. Fiore also defends against Kelly’s claims
by arguing that Kelly has executed partial lien waivers and
releases and that the extra work uncured by Kelly was not outside
the scope of work for the project. Thus, there is merit to OGP’s
argument that Kelly’s claim is a contract claim.
Count 1 is a claim by Kelly to recover the balance of the
subcontract price that it believes will not be collected from Fiore.
Facially, this is a claim that Fiore will not perform under the
contract for finished work, and is a clear claim in contract.
However, the basis of the claim in Count 2 was that the Kelly was
provided with defective specifications, which they could not
complete as specified, and sought a change order for those
additional costs to complete their portion of the project, which
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were denied by Fiore. In order to prove that the change order
was justified and should have been accepted by Fiore, Kelly will
have to use expert testimony to demonstrate [] that the design
specifications were defective. As the change orders were
premised on the alleged design defects, if the designs were not
defective, Kelly cannot claim that Fiore improperly refused to
grant the change order. Furthermore, Exhibit B, the proposed
change order, indicates that Kelly believed the local code differed
from the specifications that were used in Kelly’s contract bid.
Exhibit C, a letter from Kelly’s counsel to Fiore, indicates their
belief that the “architectural details on the project specified a
system which was impossible to construct,” and that
“inconsistencies permeate the architectural details.” The letter
concludes, “[o]therwise, if we do not hear from you, Kelly reserves
all rights to proceed with litigation to recover the extra costs
incurred because of the defective drawings.” Thus, the crux of the
issue with the change orders will be whether designs relied upon
by Kelly were defective.
Additionally, the [Kelly Sub]contract does not guarantee
that a change order will take place. Paragraph 9 of the [Kelly
Subcontract] states, in relevant part:
Before proceeding with any work involving possible
claims by Kelly for extra compensation above the price
set forth in paragraph 1, Kelly shall submit in writing
to Fiore a detailed estimate of the price for such extra
work and materials and shall secure from Fiore a
written order describing such work and fixing Kelly’s
compensation ...[.] Agreement on any change order
shall constitute a final settlement of all items covered
therein, subject to performance thereof and payment
therefore as provided in this agreement. If Fiore and
Kelly fail to agree as to the amount of the adjustment,
the work shall proceed as directed in writing by Fiore
while the adjustment is being determined. Any
change order work performed without Fiore’s prior
written authorization pursuant to the foregoing
procedures shall be at Kelly’s risk without right of
payment or reimbursement under contract quantum
meruit or otherwise.
[(Kelly Subcontract at 7).] This section does not contain any
executory promises on behalf of Fiore to approve change orders
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for Kelly, and work not authorized by Fiore will be at Kelly’s risk.
It does not appear that the damages claimed by Kelly flow from
the contract, as Fiore is under no obligation under the contract to
approve the change orders. However, the alleged damages come
from why the change order was required and why the change
order was not approved. Nowhere in the contract did Fiore
promise to provide Kelly with designs that were without defects.
Thus, the claim [regarding] the defective design is not based on
the contract, but is rather based on whether Fiore was negligent
in providing designs which contain alleged defects[,] or negligent
in refusing the change order. Therefore, the [c]ourt believes that
Count 2 of [Kelly’s C]omplaint sounds as an action in negligence
and not contract.
Thus, Fiore may still be covered under Rule 1042.3(c)(2),
but the [c]ourt must [] determine if the negligence in the Fiore
[Joinder] [C]omplaint is related to the negligence in [Kelly’s
C]omplaint. Fiore, in its [Joinder C]omplaint, incorporates the
claims in [Kelly’s C]omplaint without admitting to those claims,
and argues that OGP is either solely liable for Kelly’s damages or
that OGP is liable to or with Fiore for Kelly’s damages. Kelly’s
claim is that the defective design specifications caused Kelly to
expend money, which Fiore refused to cover. Fiore then argues
that if Kelly was damaged, then OGP, as design subcontractor and
as administrator and evaluator of the change order requests, was
liable for Kelly’s damages and deviated from professional
standards. In order for Fiore to prove that OGP was negligent,
the same expert testimony and same evidence will be used to
show whether the design specifications were defective and
whether a change order should be granted in this instance. Fiore’s
[Joinder] [C]omplaint, through the incorporation of [Kelly’s
C]omplaint …, adequately puts OGP on notice of the claims against
it[,] and allows OGP to make a defense. Thus, the [c]ourt finds
that the negligence alleged in the Fiore [Joinder] [C]omplaint is
related to [the negligence alleged in Kelly’s C]omplaint.
OGP makes an additional argument about the pleading in
the Fiore [Joinder] [C]omplaint: by incorporating, but not
admitting, [] Kelly’s [C]omplaint, Fiore’s [Joinder] [C]omplaint
goes against the purpose behind the Rules of Civil Procedure
concerning professional liability actions, which is to weed out non-
meritorious actions by requiring the filing of a [c]ertificate of
[m]erit[,] and allows Fiore to pursue a professional liability action
without having to file a [c]ertificate of [m]erit.
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In its research, the [c]ourt has found few actions where Rule
1042.3(c)(2) was at issue. However, in Supervalu Inc., v.
Construction Engineering Consultants, Inc., 65 Pa. D. & C.
4th 449 (C.P. Allegheny, 2004), a similar though not entirely
congruous situation to the present action, Judge R. Stanton
Wettick of Allegheny County required a [c]ertificate of [m]erit to
be filed by a defendant because the acts of negligence alleged in
the defendant’s joinder complaint involved different activities and
different expert testimony to establish professional negligence
against an additional defendant. However, in a footnote, Judge
Wettick noted that the defendant also included claims that were
incorporated by the defendant in their joinder complaint, and
determined those claims did not require a [c]ertificate of [m]erit:
I recognize that in this case[,] [defendant]’s complaint
also incorporates the allegations contained in
plaintiff[’]s complaint. [Defendant,] even if it does
not file a certificate of merit, may pursue these claims
under the provision of Rule 1042.3(c)(2) that the
joining party need not file a certificate of merit where
the joinder is based on the same acts of negligence
that are the basis of plaintiffs claim against the joining
party. Thus, any judgment of non pros would not
include the allegations in [defendant]’s complaint
which expressly incorporate the allegations contained
in plaintiff[’]s complaint.
[Id. at 453 n.2.] Although the footnote does not state whether
the defendant incorporated the claims of the plaintiff without
admission, Judge Wettick understood Rule 1042.3(c)(2) to mean
that if incorporated claims would result in the same negligence
alleged, that negates the requirement of filing a [c]ertificate of
[m]erit. [Id.] While OGP argues that this case is not binding on
the [c]ourt, the [c]ourt notes that Judge Wettick’s opinion is well
reasoned[,] and cites the case for its persuasive value.
OGP does not offer any case law, statute, or rule for the
proposition that, in a case where the defendant joins a
professional who is covered under Rule 1042.3(c)(2), the
defendant, by incorporating a plaintiff[’]s complaint in its
complaint against an additional defendant, must admit to the
claims [made] against it by the plaintiff. However, what is present
in the instant case is the interplay between the [c]ertificate of
[m]erit rules, the joinder rules, and specifically, Rule
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1042.3(c)(2). When joining an additional defendant under [Rule]
2252(a)(1), the claim does not move from the plaintiff to the
additional defendant, but rather is an assertion by the defendant
that the plaintiff[’]s claim is actually against the additional
defendant. Thus, the defendant is not asserting a claim against
the additional defendant, but rather, through joining the
additional defendant, is asserting that the cause of action should
be against the additional defendant, and not itself.
OGP may have an argument under [Rule] 2252(a)(4),
where joinder is allowed if the additional defendant is liable to or
with the defendant, and thereby being liable to Fiore may require
Fiore to file a [c]ertificate of [m]erit. However, the plain language
of [Rule] 1042.3(c)(2) does not make such a distinction; the rule
only requires that the acts of negligence against the additional
defendant are related to the acts of negligence alleged by the
plaintiff against the defendant. This is the importance of the
requirement in Rule 1042.3(c)(2) that the “acts of negligence” in
the complaint and the [joinder] complaint must not be unrelated.
If unrelated, then a defendant is asserting an additional claim
against the additional defendant, and a [c]ertificate of [m]erit
must be required as it is the defendant’s claim against the
additional defendant. The [c]ourt sees nothing in the rules that
requires a defendant to admit to the claims in a plaintiff[’]s
complaint in order to join an additional defendant in sole liability
based on Pa.R.C.P. 2252(a)(1) and (4), and Fiore need[] not file
a [c]ertificate of [m]erit if that joinder is based on acts of
negligence that are related to the acts of negligence claimed by
the [p]laintiff.
In conclusion, Fiore is not required to file a [c]ertificate of
[m]erit in order to join [] OGP as [an] additional defendant
pursuant to Pa.R.C.P. 2252(a)(1) and 2252(a)(4), as Fiore’s
[Joinder] [C]omplaint raises a negligence claim that is related to
the claims made in [Kelly’s C]omplaint.
Trial Court Opinion, 10/23/17, at 8-17 (brackets, footnotes and some citations
omitted; italicization and emphasis added). We agree with the trial court’s
reasoning and determination, and therefore affirm on this basis. See id.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2018
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