J-A13043-18

2018 PA Super 293

KELLY SYSTEMS, INC.

v.

LEONARD S. FIORE, INC.

v.

OGP ARCHITECTS, LLP,

Appellant

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

- 2 -

(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).
J-A13043-18

- 3 -

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 
J-A13043-18

- 4 -

[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.
J-A13043-18

- 5 -

“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. 
J-A13043-18

- 6 -

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 
J-A13043-18

- 7 -

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 
J-A13043-18

- 8 -

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 
J-A13043-18

- 9 -

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 
J-A13043-18

- 10 -

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.
J-A13043-18

- 11 -

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 
J-A13043-18

- 12 -

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 
J-A13043-18

- 13 -

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 nonmeritorious 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.
J-A13043-18

- 14 -

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 
J-A13043-18

- 15 -

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.
J-A13043-18

- 16 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/31/2018