He argues that this inadvertent clerical error, on the part of his "associate" is not equivalent to the Plaintiff's failure to have a COM prepared in Womer. Plaintiff relies in large part on Sabo v. Worrall, 959 A.2d 347 (Pa.Super. 2008), arguing that the "inadvertent clerical mistake(s)" which his attorney made should be forgiven, thereby enabling his case to proceed. In Sabo, the plaintiff filed a complaint seeking damages for a patient's wrongful death.
On appeal, Appellant presents the following issues for our review: I. Whether the trial court abused its discretion and/or committed an error of law by misapplying the equitable considerations found in Pa.R.C.P. 126 and Pa.R.C.P. 3051, which address petitions to open a judgment of non pros, as recognized by [] Sabo v. Worrall, 959 A.2d 346 (Pa. Super. 2008), and its progeny[?] II.
Since Womer, state and federal courts applying Pennsylvania law have applied the "substantial compliance" doctrine in situations where the plaintiff has attempted but failed to meet the technical requirements of Rule 1042.3. See, e.g., Ramos v. Quien, 631 F.Supp.2d 601, 612 (E.D.Pa. 2008) (excusing plaintiffs late filing of a COM under the substantial compliance doctrine where plaintiff requested extension from Court of Common Pleas before case was removed to federal court and filed COM during that time frame); Weaver v. University of Pittsburgh Medical Center, 2008 WL 2942139, at *8 (W.D.Pa. 2008) (holding that "[w]hile the text of the COM did not correspond to the claim of direct liability alleged in the complaint โ an error we do not believe should be condoned lightly โ such inconsistency does not require dismissal"); Sabo v. Worrall, 959 A.2d 347, 352 (Pa.Super.Ct. 2008) (holding, where plaintiffs counsel had timely prepared a COM but his paralegal failed to file it on time, that plaintiff had substantially complied with the Rule). Cf. Newell v. Ruiz, 286 F.3d 166, 169-71 (3d Cir. 2002) (endorsing substantial compliance doctrine with respect to the Affidavit of Merit required under New Jersey law where plaintiff mistakenly filed COM as required in New York, but defendants were not prejudiced by permitting plaintiffs potentially meritorious claim to proceed, plaintiff had taken steps to comply with the statute, the purpose of the two statutes were similar, defendants had notice of plaintiffs claim, and plaintiffs action was reasonable under the circumstances).
The Court concludes that in the confusion and stress associated with an unexpected serious illness and subsequent lengthy treatment, counsel's failure to file the COM is understandable. SeeAlmes v. Burket, 881 A.2d 861, 866 (Pa. Super. 2005) (where counsel failed to timely file a COM due to the death of his mother-in-law, the court was "not prepared to assert that an attorney who forgets that the certificate was due or who fails to take [action] when faced with the family crisis like the one presented here is so derelict in his obligations that the oversight should not be excused.") In fact, the Pennsylvania Superior Court has accepted as a legitimate excuse one quite similar to that offered by Plaintiff's counsel here. SeeSabo v. Worrall, 959 A.2d 347, 349, 352 (Pa. Super. Ct. 2008) (where a COM was promptly prepared, placed in counsel's file, and counsel erroneously believed his paralegal had filed the document with the court, the failure to file the COM was an inadvertent mistake or oversight which justified vacating the entry of non pros.) See alsoCzerniak v. Longshore, 83 Pa. D. C. 4th 459, 462 (Bucks Co. 2007) (counsel who believed the certificate had been filed with the complaint by another attorney according to the firm's ordinary business practices had provided a reasonable excuse); Doble, 78 Pa. D. C. 4th 449 at 463 (where former counsel "inexplicably failed" to file a timely COM despite having a favorable expert report to support it and litigation was in its infancy, the otherwise meritorious case would not be dismissed simply due to attorney neglect or mistake.
November 25, 2009. Appeal from the Superior Court, Pa.Super., 959 A.2d 347. Dispositions of Petitions for Allowance of Appeals Denied.
1. Whether or not the trial court properly applied the equitable considerations found in Pennsylvania Rules of Civil Procedure 126 and 3051, which address petitions to open and/or strikea judgment of non pros, as recognized by this Court in Sabo v. Worrall, 959 A.2d 347 (Pa. Super. 2008)[?]2.
Appellant filed her petition to open the judgment seven days after the judgment of non pros was entered. In Sabo v. Worrall, 2008 PA Super 223, 959 A.2d 347 (Pa. Super. 2008), this Court considered an appeal from a denial of a petition to open a non pros judgment. The appellant was advancing a medical malpractice case, but failed to timely file the required certificates of merit.
Thereafter, Pennsy filed with this Court a petition for permission to appeal, which we granted by order dated May 24, 2018. In so doing, we accepted the following issue on appeal: "Did the trial court misapprehend Womer v. Hilliker, 908 A.2d 269 (Pa. 2006), Sabo v. Worrell, 959 A.2d 347 (Pa. Super. 2008)[, appeal denied, 983 A.2d 1250 (Pa. 2009)], or Estate of Aranda v. Amrick, 987 A.2d 727 (Pa. Super. 2009)[, appeal denied, 13 A.3d 479 (Pa. 2010)], when it struck [Pennsy's Answer]?", (Order, dated May 24, 2018.) 42 Pa. C.S. ยง 702(b), relating to interlocutory appeals by permission, provides: