French v. Commonwealth Associates, Inc.

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 *637would 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.