French v. Commonwealth Associates, Inc.

980 A.2d 623, 2009 Pa. Super. 152, 2009 Pa. Super. LEXIS 2273, 2009 WL 2343723
CourtSuperior Court of Pennsylvania
DecidedJuly 31, 2009
Docket1191 WDA 2008
StatusPublished
Cited by26 cases

This text of 980 A.2d 623 (French v. Commonwealth Associates, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
French v. Commonwealth Associates, Inc., 980 A.2d 623, 2009 Pa. Super. 152, 2009 Pa. Super. LEXIS 2273, 2009 WL 2343723 (Pa. Ct. App. 2009).

Opinions

OPINION BY

GANTMAN, J:

¶ 1 Appellant, Debra French, as admin-istratrix of the estate of Brian P. French, deceased, and in her own right as an individual, appeals from the order of the Lawrence County Court of Common Pleas, denying her petition to open and/or strike the judgment of non pros, based on the court’s determination that Appellant failed to file a timely certificate of merit under Pa.R.C.P. 1042.3. Specifically, Appellant asks us to determine whether her products liability/breach of warranty claims against the Gilbert defendants (“Appellee”) should survive the judgment of non pros, absent a certificate of merit. We hold the trial court erred when it failed to review Appellant’s entire complaint to determine which counts sounded in professional negligence and which counts sounded in products liability/breach of warranty, so that only the professional negligence claims might be subject to a judgment of non pros for failure to file a certificate of merit. Accordingly, we vacate and remand for further proceedings consistent with this opinion.

¶ 2 The trial court opinion fully sets forth the relevant facts and procedural history of this case as follows:

This action arises from the death of [Appellant’s] decedent, Brian P. French on April 9, 2001 while Mr. French was employed at the Orion Power Plant located in West Pittsburg, Lawrence County, Pennsylvania. The [c]omplaint seeks recovery for damages arising out of the events resulting in the death of Mr. French and asserts claims of negligence, products liability and breach of warranty against [Appellees], including [Appellees] identified in the pending motions before the [c]ourt.
[Appellant’s] Complaint contends that Mr. French, as an employee of Orion, was working as a Senior Power Plant Operator. A co-worker was running ashes in the Number 5 ash pit area of the plant. While running the ashes, a piece of metal became caught in the grinder and tripped a breaker, stopping the grinder. A co-worker turned the grinder back on, but after a few seconds, the grinder jammed again and the coworker called to shut off a breaker and [627]*627opened a door to the “dog box” receptacle area and viewed a piece of metal lodged in the grinder. The co-worker could not reach the piece of metal with his arm and therefore put his arm and head in the receptacle but still could not reach the metal. The co-worker called Mr. French for assistance. After various attempts by the co-worker and Mr. French to reach in and retrieve the metal, eventually, with the grinder turned off, Mr. French put one arm and head in the door and then put his other arm and shoulders into the door reaching for the metal. At approximately the same time, a Gould’s Pump Model 3410 of Ashpit System 5 tripped and water and fluid flowed back into the “dog box.” The fluid and slurry rushed in and flowed into the “dog box” in a matter of seconds. Mr. French died when his body became trapped in the “dog box” and could not be pulled out in time to save his life.
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This action was commenced on April 3, 2003[,] with the filing of a praecipe for writ of summons.[1] A Complaint was filed on September 8, 2005. [Appellee] filed an answer and new matter on November 15, 2005. [Appellant] filed a reply to new matter on February 24, 2006.
[Appellee] filed its Praecipe for Judgment of [Non Pros ] for failure to file a certificate of merit pursuant to Pa. R.C.P. 1042.6 [governing notice of intent to enter judgment of non pros ] on February 11, 2008. On February 20, 2008, [Appellant] filed a certificate of merit against [Appellee] which stated that the conduct of [Appellee] deviated from acceptable professional standards and brought about the harm underlying this lawsuit. [Appellant] also filed on February 2[2], 2008 a Petition to Open and/or Strike Judgment of [Non Pros ]. [Appellant’s] Petition to Open and/or Strike Judgment of [Non Pros ] contends that its complaint against [Appellee] sets forth a cause of action pursuant to [Restatement (Second) of Torts § 402A], strict product liability, and breach of warranty; that all causes of action against [Appellee] are predicated upon a defective product and do not fall within the scope of professional negligence and that Pa.R.C.P. 1042.3 is inapplicable to a defendant in a products liability/strict liability context.

(Trial Court Opinion, dated June 18, 2008, at 3-5). We add only that following oral argument, the court denied Appellant’s petition to open and/or strike the judgment of non pros by order dated June 18, 2008. It appears from the record that the order effectively dismissed Appellant’s entire complaint against Appellee, for failure to file a timely certificate of merit. The record suggests the order did not dismiss Appellant’s claims against the remaining defendants including First Energy. Appellant timely filed a notice of appeal on July 10, 2008. The trial court did not order Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.C.P.1925(b), and Appellant filed none.

¶ 3 On appeal, Appellant presents the following issues for our review:

WHETHER ... IN A PRODUCTS LIABILITY/STRICT LIABILITY CONTEXT, A CERTIFICATE OF MERIT IS REQUIRED?
[628]*628WHETHER ... AN ENGINEER, WHO PURSUANT TO PENNSYLVANIA LAW IS NOT NECESSARILY LICENSED, COMES UNDER THE AMBIT OF THE REQUIREMENTS OF A CERTIFICATE OF MERIT WHEN THE PLEADINGS ON THEIR FACE DO NOT MAKE AN ASSERTION THAT [A PARTICULAR PARTY] IS A LICENSED PROFESSIONAL!;?]

(Appellant’s Brief at 9).

¶ 4 As a prefatory matter, we observe a trial court’s interlocutory order denying a petition to open and/or strike a judgment of non pros is immediately ap-pealable “as of right pursuant to Pa.R.A.P. 811(a)(1) (stating orders refusing to open, vacate or strike off judgment are appeal-able as of right).” Smith v. Friends Hosp., 928 A.2d 1072, 1074 n. 1 (Pa.Super.2007). See also Krauss v. Claar, 879 A.2d 302, 303 n. 4 (Pa.Super.2005), appeal denied, 586 Pa. 713, 889 A.2d 1217 (2005). Accordingly, Appellant’s claims challenging the court’s refusal to open and/or strike the judgment of non pros are properly before us for review.

¶ 5 Pennsylvania Rule of Civil Procedure 1042.6,2 which authorizes entry of a judgment of non pros for failure to file a certificate of merit, provides:

Rule 1042.6. Entry of Judgment of Non Pros for Failure to File Certification.
(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 there is no pending timely filed motion seeking to extend the time to file the certificate.
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Pa.R.C.P. 1042.6(a). A judgment of non pros, entered pursuant to this rule, is also subject to equitable considerations under Pa.R.C.P. 3051, which governs relief from a judgment of non pros, whether entered upon praecipe or by the court. Womer v. Hilliker, 589 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
980 A.2d 623, 2009 Pa. Super. 152, 2009 Pa. Super. LEXIS 2273, 2009 WL 2343723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/french-v-commonwealth-associates-inc-pasuperct-2009.