Certificate of Merit: Finally Some Relief!

There is no denying that the certificate of merit rule has produced some benefits for the legal system, largely by “weeding out” claims that lack even prima facie merit. (Prior to the rule, those claims often languished in the system for years before they could be forced out via summary judgment.) By the same token, the rule has had some negative impact on the bar generally, primarily because it permitted the entry of a non pros without any prior notice to the opposing attorney. Indeed, one would be hard pressed to think of anything that has fostered more animosity among plaintiffs and defense counsel than the reality, or fear, of a surprise non pros showing up in the morning’s mail. Alas, this scenario has sent more than a few good lawyers scurrying to find the telephone number of their legal malpractice carrier.

The fall-out from such stealth filings includes a trail of embittered feelings that not only hover over a single case, but which can also permanently contaminate the relationship between two opposing members of the bar. Unquestionably, most of the hard feelings are harbored by the plaintiffs counsel who believe they have been victimized by the arcane nuances in the rule – What box do I check? What is the language of my Certificate to say? – which the defense lawyer has been lying in the brush waiting to spring upon them.

If you are one of the many plaintiffs’ lawyers who lives in fear of the “gotcha” non pros without notice, relax, there is finally some relief. The Supreme Court, effective June 16, 2008, amended the certificate of merit, Rule 1042.1 et seq., to include a 30-day notice requirement. That’s right. No non pros can be entered without the plaintiff being given 30-day’s notice of the defendant’s intention to seek same.

When one considers how much our Supreme Court has emphasized the need for professionalism and civility in the practice, it is hard to understand why they ever adopted a rule that allowed for a non pros without notice. But rather than debate the wisdom of the original rule, let’s be glad that it is now a moot point. Better late than never? In this case, absolutely!