A.D. Brown v. Dugan
37 C.D. 2017
| Pa. Commw. Ct. | Dec 15, 2017Background
- Alton D. Brown (incarcerated) sued his former attorneys for legal malpractice, breach of contract, increased risk of harm, and intentional infliction of emotional distress.
- Brown filed a Certificate of Merit (COM) asserting expert testimony was unnecessary under Pa.R.C.P. 1042.3(a)(3); defendants moved to strike the COM arguing an expert was required.
- Trial court struck Brown’s COM, ordered him to file an appropriate COM within 20 days, and entered judgment of non pros when he failed to do so as to the malpractice claim.
- Trial was scheduled twice (April 18, 2016 in-person; October 19, 2016 by video due to incarceration). Brown failed to appear both times (court record included facility staff testimony that Brown refused to attend). A non pros was entered after the October appearance failure.
- Brown timely petitioned to open the non pros and filed a Motion to Strike/Open Judgment; the trial court denied relief and Brown appealed to the Commonwealth Court, which affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of COM / entry of non pros on malpractice claim | Brown: COM under Rule 1042.3(a)(3) was proper; judgment of non pros improper | Defs: Expert testimony required; plaintiff failed to file amended COM after court required one | Court: Strike and 20-day order were proper; Brown’s failure to file amended COM justified non pros |
| Whether petition to open non pros should have been granted | Brown: Petition timely; had sufficient justification for not appearing and meritorious claims | Defs: Brown gave no corroborated excuse; failed to show meritorious claim because he had no expert and was subject to case-management exclusions | Court: Petition timely but failed two prongs (no reasonable explanation and no meritorious cause) — petition denied |
| Admissibility of facility staff testimony (refusal to attend) | Brown: Testimony was hearsay and inadmissible | Defs: Testimony admissible as present sense impression / res gestae | Court: Statements admissible under present-sense-impression hearsay exception and supported court’s finding that Brown refused to participate |
| Denial of oral argument / due process claim | Brown: Court violated Rule 211 and his due process rights by ruling without oral argument | Defs: Rule 211 vests court with discretion to require or dispense with oral argument | Court: No due process violation — Rule 211 allows court to dispose of motions without oral argument |
Key Cases Cited
- Reaves v. Knauer, 979 A.2d 404 (Pa. Cmwlth. 2009) (standard for opening non pros: timeliness, reasonable explanation, meritorious cause)
- Jacobs v. Halloran, 710 A.2d 1098 (Pa. 1998) (non pros for failure to prosecute reviewed for abuse of discretion)
- Commonwealth v. Murray, 83 A.3d 137 (Pa. 2013) (present sense impression exception to hearsay)
- Commonwealth v. Peterkin, 513 A.2d 373 (Pa. 1986) (admissibility of contemporaneous facility statements as present sense impressions)
- Bell Beverage v. Unemployment Comp. Bd. of Review, 49 A.3d 49 (Pa. Cmwlth. 2012) (present sense impression reliability and hearsay exception)
- Intech Metals, Inc. v. Meyer, Wagner & Jacobs, 153 A.3d 406 (Pa. Super. 2016) (petition to open non pros must satisfy all prongs, including meritorious cause)
- Stephens v. Messick, 799 A.2d 793 (Pa. Super. 2002) (requirement that petition to open show facts supporting meritorious claim)
- Merlini v. Gallitzin Water Auth., 980 A.2d 502 (Pa. 2009) (standard of review for denial of petition to open: abuse of discretion)
- Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988 (Pa. 1987) (emotional-distress claims require competent medical evidence)
- 412 N. Front St. Assocs., L.P. v. Spector Gadon & Rosen, P.C., 151 A.3d 646 (Pa. Super. 2016) (professional standard of care generally requires expert testimony)
- Myers v. Seigle, 751 A.2d 1182 (Pa. Super. 2000) (no separate "increased risk of harm" claim in legal malpractice actions)