O'Brien and Ryan, LLP - Attorneys at Law
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Favorable Ruling from Superior Court of Pennsylvania in Certificate of Merit Matter

Paul Peel received a favorable ruling from the Superior Court of Pennsylvania. In Harris v. Neuberger, the Superior Court of Pennsylvania reversed a trial court's order that granted a plaintiff's Petition to Open Judgments of Non Pros and remanded the matter to the trial court with instructions to enter judgment in favor of the defendants.

Defendants' appeals concerned the trial court's refusal to apply the Supreme Court's recent decision in Womer v. Hilliker. 589 Pa. 256, 908 A.2d 269 (2006), and concomitant refusal to reinstate the entry of judgments of non pros in defendants' favor due to plaintiff's failure to timely file any Certificates of Merit. Although the trial court acknowledged that the Supreme Court expressly stated in Womer that it disapproved of an earlier decision by the Superior Court in Harris, the trial court nevertheless refused to reinstate the judgments of non pros in defendants' favor because it believed that the Superior Court's initial decision on this issue remained the law of the case. The trial court also held that the defendants waived their right to have the court apply the Supreme Court's holding in Womer to this matter by failing to request allocatur after the Superior Court decided the initial appeal in this case.

On appeal to the Superior Court, Mr. Peel argued that the "law of the case" doctrine did not bar the trial court from applying Womer's holding to this matter since the case clearly fell within two exceptions to that doctrine. Specifically, he asserted that the case fell within the exception to the doctrine that permits courts to reconsider questions previously decided by the same, or a higher, court when the prior court's holding was clearly erroneous and would create a manifest injustice if followed. Mr. Peel also maintained that, to the extent that Womer represented a change in the controlling law, as plaintiff and the trial court suggested, the trial court would be permitted to depart from the "law of the case" doctrine on this basis as well.

Moreover, Mr. Peel contended that there is no authority in the Commonwealth of Pennsylvania that holds that a party is required to immediately seek allocatur from a ruling on an interlocutory appeal by an intermediate appellate court to preserve the right to have the order reviewed on an appeal at a later stage of the litigation. To the contrary, Mr. Peel argued that, since the Supreme Court always retains the authority to review the merits of an interlocutory order until an appeal is taken from a final judgment, defendants could not have waived their right to have the trial court's interlocutory order reviewed in light of Womer's holding simply because they chose not to seek allocatur during an earlier appeal to the Superior Court.

Finally, Mr. Peel disputed plaintiff's argument that Womer's holding should not be applied to this case because it would constitute an unfair retroactive application of a new rule of law. Mr. Peel specifically asserted that Womer did not actually announce a new rule of law, but rather, merely clarified what the existing law on Certificates of Merit was. Mr. Peel also contended that, even if Womer's holding could be considered a new rule of law, the Supreme Court clearly intended for that holding to be applied retroactively to all pending cases since the Court did not expressly declare that its ruling was to be prospective only. In addition, Mr. Peel noted that, to the extent plaintiff was prejudiced by the amount of resources he invested in this case thus far, that prejudice certainly paled in comparison to other cases where changes in the law were retroactively applied and resulted from plaintiff's own failure to comply with the Supreme Court's rules.

The Superior Court agreed with Mr. Peel's arguments and reversed the trial court's order which granted plaintiff's Petition to Open Judgments of Non Pros. In reaching these rulings, the Superior Court specifically found that Womer did not effect a change in the prevailing law, but merely provided guidance on the proper interpretation of a rule promulgated by the Supreme Court. Therefore, the Superior Court concluded that the "law of the case" doctrine did not preclude it from reconsidering its own earlier decision, especially since there was no final judgment entered in this matter. Accordingly, the Superior Court remanded this matter to the trial court with instructions to enter judgment in favor of defendants.


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