Rule 1042.3. Certificate of Merit
(a) 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
Note: The requirements of subdivision (a) apply to a claim for lack
of informed consent.
(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 in bringing about the harm, or
Note: It is not required that the ‘‘appropriate licensed professional’’
who supplies the necessary statement in support of a certificate of
merit required by subdivision (a)(1) be the same person who will
actually testify at trial. It is required, however, that the ‘‘appropriate
licensed professional’’ who supplies such a statement be an expert
with sufficient education, training, knowledge and experience to
provide credible, competent testimony, or stated another way, the
expert who supplies the statement must have qualifications such
that the trial court would find them sufficient to allow that expert to
testify at trial. For example, in a medical professional liability action
against a physician, the expert who provides the statement in
support of a certificate of merit should meet the qualifications set
forth in Section 512 of the Medical Care Availability and Reduction
of Error (MCARE) Act, 40 P. S. § 1303.512.
(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
Note: A certificate of merit, based on the statement of an
appropriate licensed professional required by subdivision (a)(1),
must be filed as to the other licensed professionals for whom the
defendant is responsible. The statement is not required to identify
the specific licensed professionals who deviated from an
acceptable standard of care. The purpose of this subdivision is
to ensure that a claim of vicarious liability made against a
defendant is supported by a certificate of merit. Separate
certificates of merit as to each licensed professional for whom
a defendant is alleged to be responsible are not required. Only
a single certificate of merit as to a claim under subdivision
(a)(2) is required.
(3) expert testimony of an appropriate licensed professional is unnecessary
for prosecution of the claim.
Note: In the event that the attorney certifies under subdivision
(a)(3) that an expert is unnecessary for prosecution of the claim, in
the absence of exceptional circumstances the attorney is bound by
the certification and, subsequently, the trial court shall preclude the
plaintiff from presenting testimony by an expert on the questions of
standard of care and causation.
(b)(1) A separate certificate of merit shall be filed as to each licensed
professional against whom a claim is asserted.
Note: This subdivision relates to licensed professionals
named as defendants. It should not be interpreted to require
certificates of merit under subdivision (a)(2) or otherwise as to
non-defendant licensed professionals.
(2) If a complaint raises claims under both subdivisions (a)(1) and (a)(2)
against the same defendant, the attorney for the plaintiff, or the plaintiff if not
represented, shall file
(i) a separate certificate of merit as to each claim raised, or
(ii) a single certificate of merit stating that claims are raised under both
subdivisions (a)(1) and (a)(2).
2
(c)(1) A defendant who files a counterclaim asserting a claim for professional
[responsibility] liability shall file a certificate of merit as required by this rule.
(2) 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.
(d) The court, upon good cause shown, shall extend the time for filing a
certificate of merit for a period not to exceed sixty days. A motion to extend the time for
filing a certificate of merit must be filed by the thirtieth day after the filing of a notice of
intention to enter judgment of non pros on a professional liability claim under Rule
1042.6(a) or on or before the expiration of the extended time where a court has granted
a motion to extend the time to file a certificate of merit, whichever is greater. The filing of
a motion to extend tolls the time period within which a certificate of merit must be filed
until the court rules upon the motion.
Note: There are no restrictions on the number of orders that a
court may enter extending the time for filing a certificate of merit
provided that each order is entered pursuant to a new motion,
timely filed and based on cause shown as of the date of filing the
new motion.
The moving party must act with reasonable diligence to see
that the motion is promptly presented to the court if required by
local practice.
In ruling upon a motion to extend time, the court shall give
appropriate consideration to the practicalities of securing expert
review. There is a basis for granting an extension of time within
which to file the certificate of merit if counsel for the plaintiff was
first contacted shortly before the statute of limitations was about to
expire, or if, despite diligent efforts by counsel, records necessary
to review the validity of the claim are not available.
3
(e) If a certificate of merit is not signed by an attorney, the party signing the
certificate of merit shall, in addition to the other requirements of this rule, attach to the
certificate of merit the written statement from an appropriate licensed professional as
required by subdivisions (a)(1) and (2). If the written statement is not attached to the
certificate of merit, a defendant seeking to enter a judgment of non pros shall file a
written notice of intent to enter a judgment of non pros for failure to file a written
statement under Rule 1042.11.
4