RESOLUTION RECOMMENDING AMENDMENT TO PENNSYLVANIA RULES OF CIVIL PROCEDURE 1042.1-8 AND 237.1-6 TO PROVIDE FOR NOTICE AND RESPONSE TO PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS FOR FAILURE TO TIMELY FILE CERTIFICATE OF MERIT AND A PROCEDURE FOR OPENING A JUDGMENT OF NON PROS

WHEREAS, for professional liability actions, Pennsylvania Rule of Civil Procedure 1042.6 mandates that the prothonotary, on praecipe of any defendant, enter a judgment of non pros against a plaintiff for failure to file a certificate of merit within the required time, provided that there is no pending timely filed motion to extend the time within which to file the certificate; and,
 
WHEREAS, Rules 1042.1-8 do not provide for notice, response and/or a procedure for opening a judgment of non pros entered pursuant to the Rules; and,
 
WHEREAS, Rules 1042.1-8, as applied, may adversely affect meritorious professional liability claims of plaintiffs against whom a judgment of non pros is entered; and,
 
WHEREAS, Rule 1042.6 operates to nullify substantive rights without notice or opportunity to be heard; and,
 
WHEREAS, in the interests of fairness and equity, the Rules of Civil Procedure governing professional liability actions and the Rules of Civil Procedure regulating entry of judgment of non pros,  should be amended to provide for notice and an opportunity to respond before a judgment of non pros for failure to timely file a certificate of merit may be entered, and for a motion process to open or strike such judgment upon timely filed petition demonstrating a reasonable explanation and/or excuse for the failure to timely file or timely seek an extension for filing  a certificate of merit.
 
NOW, THEREFORE, BE IT RESOLVED, that the Philadelphia Bar Association recommends to the Civil Procedural Rules Committee of the Pennsylvania Supreme Court that Pa.R.C.P. 1042.6 be amended by deletion of the NOTE: "Rule 237.1 does not apply to a judgment of non pros entered under this rule".
 
AND, BE IT FURTHER RESOLVED, that the Philadelphia Bar Association further recommends that Rule 1042.6 governing the entry of judgment of non pros be amended by adding a subdivision (c) to this rule to read substantially as follows:
 
No Praecipe for Entry of Judgment of Non Pros shall be filed pursuant to this rule unless the provisions of Rule 237.1 have been followed.  During such ten (10) day period, plaintiff's attorney (or plaintiff if unrepresented) may file either a certificate of merit pursuant to Rule 1042.3,  or a motion upon good cause shown to extend the time for filing such certificate pursuant to Rule 1042.3(d).
 
AND, BE IT FURTHER RESOLVED, that the Philadelphia Bar Association further recommends that Rule 1042.6 be amended by adding a subdivision (d) or a Note clarifying that the provisions of Rule 237.3 shall be applicable to this rule.
 
PHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED:  MARCH 25, 2004