The Pennsylvania certificate of merit: 60 days, and a clerk can end your case

Sue a licensed professional in Pennsylvania and you owe a certificate of merit. It is a short document, it is easy to file, and forgetting it is one of the fastest ways to lose a case in the Commonwealth — because the judgment that follows is entered by the prothonotary on a praecipe, not by a judge after argument.

What the rule requires

Pa.R.Civ.P. 1042.3(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 (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 (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.

Three routes, and you pick one.

Route (1) is the ordinary one. An appropriate licensed professional has looked at the case and put in writing that there is a reasonable probability the work fell below standard and caused the harm. Note what the rule does not require: the written statement itself is not filed. The certificate says one exists.

Route (2) is for vicarious liability. Where your claim against this defendant rests only on what other professionals it is responsible for did, you certify that and no more.

Route (3) says you need no expert at all. It is available, and it is a trap. Certify under (3) and you have, in substance, committed to trying the case without expert testimony on the standard of care. If the court later disagrees, you are past the deadline with the wrong certificate on file.

And one per professional. Rule 1042.3(b)(1):

A separate certificate of merit shall be filed as to each licensed professional against whom a claim is asserted.

A single certificate covering four defendants does not comply.

How a case is lost

The consequence machinery runs in three steps, and each has its own clock.

Step one — the defendant's notice. Rule 1042.6(a):

Except as provided by subdivision (b), a defendant seeking to enter a judgment of non pros under Rule 1042.7(a) shall file a written notice of intention to file the praecipe and serve it on the party's attorney of record or on the party if unrepresented, no sooner than the thirty-first day after the filing of the complaint.

So you get a warning, and it cannot come before day 31.

Step two — the praecipe. Rule 1042.7(a):

The prothonotary, on praecipe of the defendant, shall enter a judgment of non pros against the plaintiff for failure to file a certificate of merit within the required time provided that (1) there is no pending motion for determination that the filing of a certificate is not required or no pending timely filed motion seeking to extend the time to file the certificate, (2) no certificate of merit has been filed, (3) except as provided by Rule 1042.6(b), the defendant has attached to the praecipe a certificate of service of the notice of intention to enter the judgment of non pros, and (4) except as provided by Rule 1042.6(b), the praecipe is filed no less than thirty days after the date of the filing of the notice of intention to enter the judgment of non pros.

Read who acts: the prothonotary, and the verb is "shall." This is a clerical entry on a checklist. No judge weighs anything, and there is no hearing to attend.

Step three — the thirty days in between. The praecipe cannot be filed until 30 days after the notice. That window is the whole of your practical protection, and filing the certificate inside it stops the process.

There is also a way to buy time. Rule 1042.6(c):

Upon the filing of a notice under subdivision (a) of this rule, a plaintiff may file a motion seeking a determination by the court as to the necessity of filing a certificate of merit. The filing of the motion tolls the time period within which a certificate of merit must be filed until the court rules upon the motion. If it is determined that a certificate of merit is required, the plaintiff must file the certificate within twenty days of entry of the court order on the docket or the original time period, whichever is later.

That motion is the right move if you genuinely believe no certificate is needed. It tolls the clock, and it also blocks the praecipe under Rule 1042.7(a)(1) while it is pending.

Getting a non pros opened

Pa.R.Civ.P. 237.3(b)(1) gives one short, generous window:

If the petition is filed within ten days after the entry of a judgment of non pros on the docket, the court shall open the judgment if the proposed complaint states a meritorious cause of action.

Ten days, and inside them the standard is a single question: does the proposed complaint state a meritorious cause of action? The court "shall" open. You do not have to explain yourself.

Miss the ten days and you are on the ordinary standard. Rule 3051(b):

if the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the conduct that gave rise to the entry of judgement of non pros, and (3) there is a meritorious cause of action.

Three elements instead of one, and the middle one — a reasonable explanation for what went wrong — is the one that is hard to supply when the answer is that nobody calendared the certificate.

Note also Rule 3051(a): all grounds must be asserted in a single petition. You get one attempt.

Who counts as a licensed professional

Rule 1042.1 sets the scope, and it is broader than medical malpractice. Pennsylvania's professional liability rules reach the licensed professions generally — health care providers, but also lawyers, accountants, architects, engineers and others. If your claim is that a licensed person did their professional work badly, assume Rule 1042.3 applies until you have checked that it does not.

How Pennsylvania compares

A short checklist

1. Ask first whether the defendant is a licensed professional. Rule 1042.1's scope is wider than medical malpractice.
2. Calendar 60 days from the filing of the complaint, and file the certificate earlier if you can.
3. File one certificate per professional defendant. A combined certificate does not satisfy Rule 1042.3(b)(1).
4. Choose the subsection deliberately. Certifying under (a)(3) that no expert is needed is a commitment, not a placeholder.
5. If you receive a notice of intention, act immediately. You have 30 days before the praecipe may be filed, and filing the certificate inside that window ends the problem.
6. If you think no certificate is required, move under Rule 1042.6(c). The motion tolls the deadline and blocks the praecipe while it is pending.
7. If a non pros has been entered, count ten days. Inside them, Rule 237.3(b)(1) requires the court to open the judgment on a meritorious cause of action alone.
8. After ten days, expect to satisfy all three parts of Rule 3051(b) — and to do it in a single petition.

Where these rules live

• Pa.R.Civ.P. 1042.1 — Professional Liability Actions. Scope. Definition.
• Pa.R.Civ.P. 1042.3 — Certificate of Merit.
• Pa.R.Civ.P. 1042.4 — Responsive Pleading.
• Pa.R.Civ.P. 1042.5 — Discovery.
• Pa.R.Civ.P. 1042.6 — Notice of Intent to Enter Judgment of Non Pros for Failure to File Certificate of Merit.
• Pa.R.Civ.P. 1042.7 — Entry of Judgment of Non Pros for Failure to File Certification.
• Pa.R.Civ.P. 1042.8 — Motion to Strike. Defect of Certificate of Merit.
• Pa.R.Civ.P. 237.3 — Relief from Judgment of Non Pros or by Default.
• Pa.R.Civ.P. 3051 — Relief from Judgment of Non Pros.

This page explains what the rules say. It isn't legal advice, and whether a particular claim needs expert testimony is developed in case law this site doesn't cover.