J-A13043-18

                                2018 PA Super 393

 KELLY SYSTEMS, INC.                       :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 LEONARD S. FIORE, INC.                    :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 OGP ARCHITECTS, LLP,                      :
                                           :
                    Appellant              :        No. 1714 WDA 2017

                   Appeal from the Order October 25, 2017
                in the Court of Common Pleas of Blair County,
                   Civil Division at No(s): No. 2017-GN-115

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                            FILED OCTOBER 31, 2018

      OGP Architects, LLP (“OGP”), appeals from the Order granting the

“Motion for Determination as to Necessity of Certificate of Merit” filed by

Leonard S. Fiore, Inc. (“Fiore”), and declaring that Fiore was not required to

file a Pa.R.C.P. 1042.3 Certificate of Merit in support of its Pa.R.C.P. 2252

Complaint (the “Joinder Complaint”) to join OGP as an additional defendant.

We affirm.

      Fiore, a general contractor, was hired to build the “core and shell” of a

building in State College, Pennsylvania (the “Project”). Fiore entered into a

contract (the “Kelly Subcontract”) with Kelly Systems, Inc. (“Kelly”), to install

exterior wall panels on the building. Fiore entered into a separate contract
J-A13043-18


(the “OGP Subcontract”) with OGP to provide architectural designs for the

Project. Kelly used the OGP drawings to calculate its bid for the Project and

to complete construction.

        On October 4, 2016, Kelly requested a change order with Fiore, pursuant

to the terms of the Kelly Subcontract,1 allegedly due to OGP’s architectural

drawings calling for an “impossible to construct” mounting system.              Kelly

advised Fiore that its proposed solution would cost $225,126.18 more than

the original contract price.           Fiore rejected the change order.         Kelly

subsequently submitted a letter to Fiore, requesting that Fiore reconsider the

rejection, and advising that Kelly intended to proceed with its proposed

solution. Fiore never accepted the change order, and Kelly continued to work

on the Project, including implementing its proposed solution to the allegedly

defective designs.

        On January 12, 2017, Kelly filed a Complaint (“Kelly’s Complaint”)

against Fiore, seeking, inter alia, payment of $225,000.00 for the additional

____________________________________________


1   Paragraph 9 of the Kelly Subcontract provides, in relevant part, as follows:

        Before proceeding with any [w]ork involving possible claims by
        [Kelly] for extra compensation above the [original contract price],
        [Kelly] shall submit in writing to [Fiore] a detailed estimate of the
        price for such extra [w]ork and materials and shall secure from
        [Fiore] a written order describing such work and fixing [Kelly’s]
        compensation. … Any change order work performed without
        [Fiore’s] prior written authorization pursuant to the foregoing
        procedures shall be at [Kelly’s] risk without right of payment or
        reimbursement under contract, quantum meruit or otherwise.

Kelly Subcontract, 7/20/15, at ¶ 9 (italicization added).

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J-A13043-18


costs caused by the allegedly defective design. Fiore filed an Answer, in which

it argued, inter alia, that it is not responsible for the additional costs allegedly

incurred by Kelly. Fiore subsequently filed the Joinder Complaint, joining OGP

as an additional defendant, and incorporating, without admitting, the

allegations made in the Complaint.        Fiore additionally alleged that “OGP’s

design documents and information provided under the [OGP S]ubcontract

deviate from the acceptable professional standards … [and] to the extent any

of Kelly’s alleged damages, in whole or in part, result from OGP’s acts or

omissions … OGP is responsible and liable for Kelly’s damages.”             Joinder

Complaint, 3/17/17, at ¶¶ 17-18.

      OGP filed a Pa.R.C.P. 1042.6 Notice of intent to enter judgment of non

pros against Fiore, for Fiore’s failure to file a certificate of merit with the

Joinder Complaint. Subsequently, Fiore filed a Motion seeking a determination

by the trial court as to whether Fiore was required to file a certificate of merit.

Following a hearing and submission of briefs, the trial court entered an Order

declaring that Fiore was not required to file a certificate of merit, because

Fiore’s negligence claim is related to the claims raised in Kelly’s Complaint.

OGP thereafter filed the instant appeal.

      OGP’s issue on appeal is as follows:

      Whether the trial court erred in finding that [Kelly] pled a
      negligence claim against Fiore in submitting defective design
      specifications and/or in rejecting a change order as a result[,] and
      that    therefore[,]   Fiore’s   claims   for   contribution     and
      indemnification against OGP by incorporation of [Kelly’s] “bogus”
      averments[,] without verifying the truth thereof in the [J]oinder

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J-A13043-18


       [C]omplaint[,] related to the “acts of negligence” set forth in
       [Kelly’s] [C]omplaint, which then did not require Fiore to file a
       certificate of merit under [Pa.R.C.P.] 1042.3(C)(2)[?]

Brief for Appellant at 6.

       Prior to addressing OGP’s claim, we must determine whether this Court

has jurisdiction to entertain the instant appeal.2 See Pennsy Supply, Inc.

v. Mumma, 921 A.2d 1184, 1198 n.10 (Pa. Super. 2007) (stating that “[t]his

Court may raise matters regarding its jurisdiction sua sponte.”). This Court

“has jurisdiction to entertain appeals taken (1) as of right from a final order,

… (2) from interlocutory orders by permission, … (3) from certain interlocutory

orders    as   of   right,   …    and    (4)   from   certain   collateral   orders....”

Redevelopment Auth. v. Int'l Ins. Co., 685 A.2d 581, 585 (Pa. Super.

1996) (citations omitted).

       OGP alleges that its appeal is from a collateral order pursuant to

Pa.R.A.P. 313. See Brief for Appellant at 2. OGP argues that the trial court’s

Order can be addressed without analyzing the underlying central issue of the

case, i.e., Fiore’s entitlement to damages, because whether Fiore must file a

certificate of merit is a “procedural mechanism that does not resolve any

substantive aspect of the claims.” Id. According to OGP, resolving this issue

is of great importance, because the rule regarding certificates of merit


____________________________________________


2 On January 2, 2018, this Court issued a Rule to Show Cause why OGP’s
appeal should not be quashed as an interlocutory appeal. On January 19,
2018, following a Response from OGP, the Rule was discharged, but the issue
was deferred for review by this panel.

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J-A13043-18


“minimize[s] the time and expense that may be incurred” by the parties to

the litigation.    Id.   OGP asserts that if its claim is not reviewed now, the

protection granted by the certificate of merit rule – avoiding litigation of

baseless claims – will be irreparably lost. Id. at 2-3.

      The collateral order doctrine

      permits a party to take an immediate appeal as of right from an
      otherwise unappealable interlocutory order if the order meets
      three requirements: (1) the order must be separable from, and
      collateral to, the main cause of action; (2) the right involved must
      be too important to be denied review; and (3) the question
      presented must be such that if review is postponed until after final
      judgment, the claim will be irreparably lost.

Commonwealth v. Harris, 32 A.3d 243, 248 (Pa. 2011) (citing Pa.R.A.P.

313(b)).

      Rule 313 must be interpreted narrowly, and the requirements for
      an appealable collateral order remain stringent in order to prevent
      undue corrosion of the final order rule. To that end, each prong
      of the collateral order doctrine must be clearly present before an
      order may be considered collateral.


Melvin v. Doe, 836 A.2d 42, 46–47 (Pa. 2003) (citation omitted).              “In

adopting    a     narrow   construction,   we   endeavor   to   avoid   piecemeal

determinations and the consequent protraction of litigation. Such piecemeal

litigation imposes a substantial burden on the orderly administration of

justice.” Rae v. Pa. Funeral Dirs. Ass’n, 977 A.2d 1121, 1129 (Pa. 2009)

(citations and quotation marks omitted).

      Here, the resolution of whether Fiore must file a certificate of merit

requires no analysis of the merits of Fiore’s underlying claim. See K.C. v.


                                       -5-
J-A13043-18



L.A., 128 A.3d 774, 778 (Pa. 2015) (stating that “an order is separable from

the main cause of action if it is entirely distinct from the underlying issue in

the case and if it can be resolved without an analysis of the merits of the

underlying dispute.” (quotation marks omitted)).

      Additionally, there is a strong public interest in deterring frivolous

negligence claims. See Geniviva v. Frisk, 725 A.2d 1209, 1214 (Pa. 1999)

(stating that “[o]nly those claims that involve interests deeply rooted in public

policy can be considered too important to [be] denied review.” (quotation

marks and citation omitted)); see also Warren v. Folk, 886 A.2d 305, 307

(Pa. Super. 2005) (stating that “[t]he goal of the certificate of merit is to weed

out clearly nonmeritorious lawsuits early in the litigation process.”).

      Finally, OGP’s claim that Fiore must file a certificate of merit would be

irreparably lost if the matter proceeded to trial. Accordingly, OGP’s appeal is

from a collateral order, and we will review its claim on the merits.

       “[T]he interpretation and application of a Pennsylvania Rule of Civil

Procedure presents a question of law.       …   Accordingly, … our standard of

review is de novo, and our scope of review is plenary.” Barrick v. Holy Spirit

Hosp. of the Sisters of Christian Charity, 32 A.3d 800, 808 (Pa. Super.

2011) (citations and quotation marks omitted).

      OGP contends that the trial court erred in finding that Kelly pled a

negligence claim against Fiore, which allowed Fiore to not file a certificate of

merit for its negligence claim against OGP. Brief for Appellant at 16, 19. OGP

argues that Kelly’s claims against Fiore are contract-based, whereas Fiore’s

                                      -6-
J-A13043-18



claims against OGP are tort-based. Id. at 19-21. OGP claims that Kelly did

not allege any acts of negligence against Fiore, but instead, all of the

averments in Kelly’s Complaint revolve exclusively around the denial of Kelly’s

change order, which process is defined in the Kelly Subcontract. Id. at 20.

OGP further alleges that the trial court failed to consider that Kelly’s claims

are based on the implied duty of good faith and fair dealing, which “arises

under the law of contracts, not under the law of torts.” Id. at 21 (citations

omitted). Lastly, OGP alleges that it would be contrary to the spirit of the

certificate of merit requirement for this Court to allow Fiore to pursue a

professional negligence claim solely by “incorporation of [the] bogus

averments” set forth in Kelly’s Complaint, “without admitting the truth

thereof.” Id. (quotation marks omitted).

      In its Opinion, the trial court addressed OGP’s claim as follows:

              Specific rules of civil procedure apply for an action in
      professional liability by a patient or client of a licensed professional
      or a partnership, unincorporated association, corporation, or other
      entity responsible for a licensed professional who deviated from
      the professional standard. Pa.R.C.P. 1042.1[]. The rule lists
      professions covered by the rules, including architects. Pa.R.C.P.
      1042.1(iii). An action in professional negligence is different from
      an action in ordinary negligence[,] as a complaint in professional
      liability concerns negligence which breaches a professional
      standard. See Merlini ex rel. Martini v. Gallitzin Water Auth.,
      980 A.2d 502, 507 (Pa. 2009). When a party alleges a deviation
      from the professional standard, the party is required to file a
      [c]ertificate of [m]erit either with the complaint or within sixty
      (60) days of filing the complaint. Pa.R.C.P. 1042.3(a). The
      [c]ertificate of [m]erit must state either:

            (1) an appropriate licensed professional has supplied
            a written statement that there exists a reasonable

                                       -7-
J-A13043-18


           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.

     Pa.R.C.P. 1042.3(a)(1)-(3). However, the filing of a [c]ertificate
     of [m]erit is not always required in certain instances relating to
     joinder or cross-claims. …

           [] A defendant or an additional defendant who has
           joined a licensed professional as an additional
           defendant or asserted a cross-claim against a licensed
           professional need not file a certificate of merit unless
           the joinder or cross-claim is based on acts of
           negligence that are unrelated to the acts of negligence
           that are the basis for the claim against the joining or
           cross-claiming party.

     Pa.R.C.P. 1042.3(c)(2).

     ….

           Fiore contends that it is not required to file a [c]ertificate of
     [m]erit, by and large, on the fact that it incorporated Kelly’s
     [C]omplaint into their [Joinder] [C]omplaint and therefore[,] the
     “acts of negligence” are related to the “acts of negligence” in
     [Kelly’s C]omplaint.    OGP argues that Kelly’s claims are in
     contract[,] and by incorporating Kelly’s [C]omplaint, Fiore only
     alleges a contract claim on a contract where OGP is not a party,
     [thereby] making Rule 1042.3(c)(2) inapplicable. Because Rule
     1042.3(c)(2) turns on whether the negligence alleged in the
     [J]oinder [C]omplaint is unrelated to the negligence [alleged in]
     [Kelly’s Complaint], the [c]ourt must determine whether [Kelly’s

                                      -8-
J-A13043-18


     C]omplaint sounds in either contract or negligence. If the claims
     in [Kelly’s C]omplaint are contract claims, then any negligence
     alleged in Fiore’s [Joinder] [C]omplaint is new negligence,
     unrelated to the claims in [Kelly’s C]omplaint, and would force
     Fiore to file a [c]ertificate of [m]erit to assert any professional
     liability claims on OGP. If the claims in [Kelly’s C]omplaint are in
     negligence, then the [c]ourt must analyze the claims to see if the
     claims are related[, thereby qualifying] Fiore’s [Joinder]
     [C]omplaint [] under the rule.

           To determine whether a complaint sounds a claim in
     contract or in negligence, courts in Pennsylvania have used an
     evolving doctrine known as the “gist of the action” doctrine. See
     Bruno v. Erie Ins. Co., 106 A.3d 48, 61-62 (Pa. 2014); Zell v.
     Arnold, 2 Pen. & W. 292 (Pa. 1830); Homey v. Nixon, 61 A.
     1088 (Pa. 1905); Bash v. Bell Tel., 601 A.2d 825 (Pa. Super.
     1992); eToll Inc. v. Elias/Savion Adver., 811 A.2d 10 (Pa.
     Super. 2002). In Bruno, the Supreme Court articulated the legal
     principles a court must use to determine the gist of the action
     doctrine, stating that a court must make a duty-based inquiry to
     determine whether the claim is in tort or contract:

           The substance of the allegations comprising a claim in
           a plaintiff’s complaint are of paramount importance,
           and, thus, the mere labeling by the plaintiff of a claim
           as being in tort, e.g., for negligence, is not controlling.
           If the facts of a particular claim establish that the duty
           breached is one created by the parties by the terms
           of their contract—i.e., a specific promise to do
           something that a party would not ordinarily have been
           obligated to do but for the existence of the contract—
           then the claim is to be viewed as one for breach of
           contract. If, however, the facts establish that the
           claim involves the defendant’s violation of a broader
           social duty owed to all individuals, which is imposed
           by the law of torts and, hence, exists regardless of the
           contract, then it must be regarded as a tort.

     Bruno, 106 A.3d at 68. Thus, if the claim offered is for a breach
     of a specific promise in the contract, then the claim will lie in
     contract[,] as the duty of the parties are purely contractual.
     However, if the claim is not based on the specific contractual
     promise, but rather on a duty that is owed independent of any


                                      -9-
J-A13043-18


     contractual promises, then the claim will lie in tort, even if the
     parties’ relationship originates from the contract.

           The relevant portions of [Kelly’s C]omplaint … relate to a
     claim of monetary damages due to the defective specifications[,
     and state as follows]:

                                     ***

           6. Additionally, the architectural details regarding the
           mental [sic] panels were defective, in that they
           specified a system which was not possible to
           construct, as a result of which Kelly incurred extra
           costs exceeding $225,000.00. Kelly promptly and
           timely notified Fiore of the defects in the architectural
           details and of the fact that Kelly was incurring
           additional costs as a result thereof, and provided Fiore
           with an estimate of the extra costs together with a
           written request for a change order, on October 4,
           2016. A true and correct copy of the aforesaid written
           request for a change order is hereto attached marked
           as Exhibit B.

           7. Fiore, on or about November 14, 2016, rejected
           Kelly’s request for a change order for extra costs
           resulting from the defective specifications.        On
           December 1, 2016, Kelly, through counsel, requested
           in writing that Fiore reconsider its rejection. A true
           and correct copy of the written request for
           reconsideration is hereto attached marked as Exhibit
           C. Fiore has refused to reconsider its rejection of
           Kelly’s request.

           II. COUNT TWO - ACTION FOR DAMAGES RESULTING
           FROM DEFECTIVE SPECIFICATIONS

           …

           12. As a result of the defective specifications as
           outlines [sic] in Exhibits B and C hereto, and at the
           direction of Fiore and the architect on the Project,
           Kelly was forced to expend in excess of $225,000 in
           additional costs in order to complete the metal panel
           portion of the Project.

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J-A13043-18



           13. Despite Kelly’s demand for a change order to
           recover those extra costs, Fiore has failed and refused
           same.

     (Kelly[’s] Complaint, ¶¶ 6-7, 12-13).         Attached to [Kelly’s
     C]omplaint are Exhibits B (a letter by Kelly to Fiore detailing their
     request for a change order and their estimates, totaling upwards
     of $225,000) and C (a letter from Kelly’s counsel to Fiore, stating
     that the architectural details were inconsistent and impossible to
     construct[,] and that attempts at resolution were rejected by the
     architect, which forced Kelly to take more time and spend more
     money to finish their portion of the project).

            Kelly’s claim of monetary damages due to defective
     specifications is opaque on the issue of whether their claim is
     contractual in nature or sounds in negligence, whether the
     damages resulting to Kelly were because of the design defects, or
     whether the claim is that Fiore did not approve the change order
     due to the design defects, and thus, would be a contractual claim
     (as OGP argues). Paragraph 12 appears to claim negligence[,]
     stating that, as of a result of defective specifications, and at the
     direction of Fiore and the architect (OGP), Kelly was damaged in
     the amount of $225,000, spent by Kelly to finish the project.
     Paragraph 13, however, indicates that Kelly attempted to recover
     those costs through the [Kelly Sub]contract, but Fiore has refused
     to reimburse Kelly. In paragraph 6, Kelly claims that it timely
     notified Fiore of the change order[,] which is required [by] the
     [Kelly Sub]contract. Fiore, in its Answer, denied that Kelly was
     timely in its request, which would be dependent upon the [terms
     of the Kelly Sub]contract. Fiore also defends against Kelly’s claims
     by arguing that Kelly has executed partial lien waivers and
     releases and that the extra work uncured by Kelly was not outside
     the scope of work for the project. Thus, there is merit to OGP’s
     argument that Kelly’s claim is a contract claim.

            Count 1 is a claim by Kelly to recover the balance of the
     subcontract price that it believes will not be collected from Fiore.
     Facially, this is a claim that Fiore will not perform under the
     contract for finished work, and is a clear claim in contract.
     However, the basis of the claim in Count 2 was that the Kelly was
     provided with defective specifications, which they could not
     complete as specified, and sought a change order for those
     additional costs to complete their portion of the project, which

                                    - 11 -
J-A13043-18


     were denied by Fiore. In order to prove that the change order
     was justified and should have been accepted by Fiore, Kelly will
     have to use expert testimony to demonstrate [] that the design
     specifications were defective.      As the change orders were
     premised on the alleged design defects, if the designs were not
     defective, Kelly cannot claim that Fiore improperly refused to
     grant the change order. Furthermore, Exhibit B, the proposed
     change order, indicates that Kelly believed the local code differed
     from the specifications that were used in Kelly’s contract bid.
     Exhibit C, a letter from Kelly’s counsel to Fiore, indicates their
     belief that the “architectural details on the project specified a
     system which was impossible to construct,” and that
     “inconsistencies permeate the architectural details.” The letter
     concludes, “[o]therwise, if we do not hear from you, Kelly reserves
     all rights to proceed with litigation to recover the extra costs
     incurred because of the defective drawings.” Thus, the crux of the
     issue with the change orders will be whether designs relied upon
     by Kelly were defective.

           Additionally, the [Kelly Sub]contract does not guarantee
     that a change order will take place. Paragraph 9 of the [Kelly
     Subcontract] states, in relevant part:

           Before proceeding with any work involving possible
           claims by Kelly for extra compensation above the price
           set forth in paragraph 1, Kelly shall submit in writing
           to Fiore a detailed estimate of the price for such extra
           work and materials and shall secure from Fiore a
           written order describing such work and fixing Kelly’s
           compensation ...[.] Agreement on any change order
           shall constitute a final settlement of all items covered
           therein, subject to performance thereof and payment
           therefore as provided in this agreement. If Fiore and
           Kelly fail to agree as to the amount of the adjustment,
           the work shall proceed as directed in writing by Fiore
           while the adjustment is being determined.            Any
           change order work performed without Fiore’s prior
           written authorization pursuant to the foregoing
           procedures shall be at Kelly’s risk without right of
           payment or reimbursement under contract quantum
           meruit or otherwise.

     [(Kelly Subcontract at 7).] This section does not contain any
     executory promises on behalf of Fiore to approve change orders

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J-A13043-18


     for Kelly, and work not authorized by Fiore will be at Kelly’s risk.
     It does not appear that the damages claimed by Kelly flow from
     the contract, as Fiore is under no obligation under the contract to
     approve the change orders. However, the alleged damages come
     from why the change order was required and why the change
     order was not approved. Nowhere in the contract did Fiore
     promise to provide Kelly with designs that were without defects.
     Thus, the claim [regarding] the defective design is not based on
     the contract, but is rather based on whether Fiore was negligent
     in providing designs which contain alleged defects[,] or negligent
     in refusing the change order. Therefore, the [c]ourt believes that
     Count 2 of [Kelly’s C]omplaint sounds as an action in negligence
     and not contract.

            Thus, Fiore may still be covered under Rule 1042.3(c)(2),
     but the [c]ourt must [] determine if the negligence in the Fiore
     [Joinder] [C]omplaint is related to the negligence in [Kelly’s
     C]omplaint. Fiore, in its [Joinder C]omplaint, incorporates the
     claims in [Kelly’s C]omplaint without admitting to those claims,
     and argues that OGP is either solely liable for Kelly’s damages or
     that OGP is liable to or with Fiore for Kelly’s damages. Kelly’s
     claim is that the defective design specifications caused Kelly to
     expend money, which Fiore refused to cover. Fiore then argues
     that if Kelly was damaged, then OGP, as design subcontractor and
     as administrator and evaluator of the change order requests, was
     liable for Kelly’s damages and deviated from professional
     standards. In order for Fiore to prove that OGP was negligent,
     the same expert testimony and same evidence will be used to
     show whether the design specifications were defective and
     whether a change order should be granted in this instance. Fiore’s
     [Joinder] [C]omplaint, through the incorporation of [Kelly’s
     C]omplaint …, adequately puts OGP on notice of the claims against
     it[,] and allows OGP to make a defense. Thus, the [c]ourt finds
     that the negligence alleged in the Fiore [Joinder] [C]omplaint is
     related to [the negligence alleged in Kelly’s C]omplaint.

           OGP makes an additional argument about the pleading in
     the Fiore [Joinder] [C]omplaint: by incorporating, but not
     admitting, [] Kelly’s [C]omplaint, Fiore’s [Joinder] [C]omplaint
     goes against the purpose behind the Rules of Civil Procedure
     concerning professional liability actions, which is to weed out non-
     meritorious actions by requiring the filing of a [c]ertificate of
     [m]erit[,] and allows Fiore to pursue a professional liability action
     without having to file a [c]ertificate of [m]erit.

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            In its research, the [c]ourt has found few actions where Rule
     1042.3(c)(2) was at issue. However, in Supervalu Inc., v.
     Construction Engineering Consultants, Inc., 65 Pa. D. & C.
     4th 449 (C.P. Allegheny, 2004), a similar though not entirely
     congruous situation to the present action, Judge R. Stanton
     Wettick of Allegheny County required a [c]ertificate of [m]erit to
     be filed by a defendant because the acts of negligence alleged in
     the defendant’s joinder complaint involved different activities and
     different expert testimony to establish professional negligence
     against an additional defendant. However, in a footnote, Judge
     Wettick noted that the defendant also included claims that were
     incorporated by the defendant in their joinder complaint, and
     determined those claims did not require a [c]ertificate of [m]erit:

           I recognize that in this case[,] [defendant]’s complaint
           also incorporates the allegations contained in
           plaintiff[’]s complaint. [Defendant,] even if it does
           not file a certificate of merit, may pursue these claims
           under the provision of Rule 1042.3(c)(2) that the
           joining party need not file a certificate of merit where
           the joinder is based on the same acts of negligence
           that are the basis of plaintiffs claim against the joining
           party. Thus, any judgment of non pros would not
           include the allegations in [defendant]’s complaint
           which expressly incorporate the allegations contained
           in plaintiff[’]s complaint.

     [Id. at 453 n.2.] Although the footnote does not state whether
     the defendant incorporated the claims of the plaintiff without
     admission, Judge Wettick understood Rule 1042.3(c)(2) to mean
     that if incorporated claims would result in the same negligence
     alleged, that negates the requirement of filing a [c]ertificate of
     [m]erit. [Id.] While OGP argues that this case is not binding on
     the [c]ourt, the [c]ourt notes that Judge Wettick’s opinion is well
     reasoned[,] and cites the case for its persuasive value.

           OGP does not offer any case law, statute, or rule for the
     proposition that, in a case where the defendant joins a
     professional who is covered under Rule 1042.3(c)(2), the
     defendant, by incorporating a plaintiff[’]s complaint in its
     complaint against an additional defendant, must admit to the
     claims [made] against it by the plaintiff. However, what is present
     in the instant case is the interplay between the [c]ertificate of
     [m]erit rules, the joinder rules, and specifically, Rule

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      1042.3(c)(2). When joining an additional defendant under [Rule]
      2252(a)(1), the claim does not move from the plaintiff to the
      additional defendant, but rather is an assertion by the defendant
      that the plaintiff[’]s claim is actually against the additional
      defendant. Thus, the defendant is not asserting a claim against
      the additional defendant, but rather, through joining the
      additional defendant, is asserting that the cause of action should
      be against the additional defendant, and not itself.

             OGP may have an argument under [Rule] 2252(a)(4),
      where joinder is allowed if the additional defendant is liable to or
      with the defendant, and thereby being liable to Fiore may require
      Fiore to file a [c]ertificate of [m]erit. However, the plain language
      of [Rule] 1042.3(c)(2) does not make such a distinction; the rule
      only requires that the acts of negligence against the additional
      defendant are related to the acts of negligence alleged by the
      plaintiff against the defendant. This is the importance of the
      requirement in Rule 1042.3(c)(2) that the “acts of negligence” in
      the complaint and the [joinder] complaint must not be unrelated.
      If unrelated, then a defendant is asserting an additional claim
      against the additional defendant, and a [c]ertificate of [m]erit
      must be required as it is the defendant’s claim against the
      additional defendant. The [c]ourt sees nothing in the rules that
      requires a defendant to admit to the claims in a plaintiff[’]s
      complaint in order to join an additional defendant in sole liability
      based on Pa.R.C.P. 2252(a)(1) and (4), and Fiore need[] not file
      a [c]ertificate of [m]erit if that joinder is based on acts of
      negligence that are related to the acts of negligence claimed by
      the [p]laintiff.

            In conclusion, Fiore is not required to file a [c]ertificate of
      [m]erit in order to join [] OGP as [an] additional defendant
      pursuant to Pa.R.C.P. 2252(a)(1) and 2252(a)(4), as Fiore’s
      [Joinder] [C]omplaint raises a negligence claim that is related to
      the claims made in [Kelly’s C]omplaint.

Trial Court Opinion, 10/23/17, at 8-17 (brackets, footnotes and some citations

omitted; italicization and emphasis added). We agree with the trial court’s

reasoning and determination, and therefore affirm on this basis. See id.

      Order affirmed.



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J-A13043-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/31/2018




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