# French v. Commonwealth Associates, Inc.

> Superior Court of Pennsylvania · July 31, 2009 · 2009 Pa. Super. 152

URL: https://www.frixlaw.com/law-library/cases/9751818

## Case

- **Full name:** 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
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 31, 2009
- **Citations:** 2009 Pa. Super. 152; 980 A.2d 623; 2009 Pa. Super. LEXIS 2273; 2009 WL 2343723
- **Precedential status:** Published
- **Opinion:** Dissent by Lally-Green
- **Judges:** Lally-Green, Gantman, and Colville
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9751818

## How later opinions describe it (automated extraction)

- noting that expert testimony as to causation of defects is not always -5- J-A26024-16 required in cases of strict liability and breach of warranty

## Opinion text

DISSENTING STATEMENT BY
LALLY-GREEN, J:
¶ 1 Because I believe that the trial court correctly determined that Appellant’s cause of action against Gilbert/Commonwealth, Inc., of Michigan f/k/a Commonwealth Associates, Inc., Pk/a Gilbert Associates, Inc., a/k/a and/or Gilbert Commonwealth International, Inc., (the “Gilbert defendants”) 1 sounds in professional negligence and that a certificate of merit was required, I respectfully dissent.
¶ 2 As the majority notes, we are to review the trial court’s refusal to open a judgment of non pros for abuse of discretion. Pa.R.C.P. 3051(b); Womer v. Hilliker, 589 Pa. 256 , 908 A.2d 269, 279 (2006). Controlling precedent mandates that we review the substance of a complaint to ascertain whether the complaint sounds in professional negligence. Zokaites Contracting, Inc. v. Trant Corp., 2009 PA Super 35 , 968 A.2d 1282 ; Varner v. Classic Communities Corp., 890 A.2d 1068 (Pa.Super.2006). In Zokaites, the defendants provided professional engineering services to plaintiffs pursuant to written contracts. The trial court opened a judgment of non pros as to breach of contract claims but not as to claims that sounded in negligence. This Court affirmed the trial court in both respects. In Varner , the plaintiffs sued the architects of a townhouse that burned down. The defendant architects were licensed professionals, and the plaintiffs’ allegations involved the architects’ failure to comply with applicable codes. We affirmed the trial court’s refusal to open a judgment of non pros, noting that “one of the most distinguishing features” of a professional negligence claim is “the need, in most cases, for expert testimony that would elucidate complex issues for a jury of laypersons.” Varner, 890 A.2d at 1074 .
¶ 3 In the instant matter, the record— including Appellant’s complaint, the Gilbert defendants’ answer and the praecipe for judgment of non pros — makes clear that the Gilbert defendants are professional, licensed engineers who were acting in their capacity as such when they designed portions of the Orion Power Plant at which Appellant’s decedent was tragically killed. Specifically, these filings yield three conclusions: the Gilbert defendants were sued in their capacity as professional, licensed engineers; Appellant alleged professional negligence of the Gilbert defendants in their design of the ashpit system; 2 and expert testimony was necessary. Regarding the point about expert testimony, it is noted that Appellant’s allegations involve matters “not within the ordinary knowledge and experience of laypersons,” Zokaites, 2009 PA Super 35, at ¶ 17 , 968 A.2d at 1287 , and that expert testimony clearly *637 would be necessary “to elucidate complex issues for a jury of laypersons.” Varner, 890 A.2d at 1074 .
¶4 As stated above, we are to review the trial court’s refusal to open a judgment of non pros for abuse of discretion and controlling precedent mandates that we review the substance of a complaint to ascertain whether the complaint sounds in professional negligence. My review reflects that the substance of Appellant’s complaint, considered as a whole, is a cause of action sounding in professional negligence. Thus, in my view, the record reflects that the trial court was well within its discretion in declining to open the judgment of non pros.
¶ 5 I respectfully dissent.
. I agree that this appeal is properly before us per Pa.R.A.P. 311(a)(1). Further, I note that the Gilbert defendants are the only defendants active in this appeal.
. Appellant specifically alleges, at paragraph 61 of her complaint, that the Gilbert defendants violated the standards of design and manufacture applicable to the Ashpit Rejection System and "dog box” at issue in this action. The complaint further alleges, at paragraph 37(i), that the Gilbert defendants failed to comply with pertinent OSHA standards.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9751818. Public record. Not legal advice.