Legal Mal Case Tossed for Lack of Merit Certificates
The Korals also argued that no certificate of merit was necessary to pursue the claims against DiPaul and Viola, because the claims were for ordinary, rather than professional, negligence. The Korals cited the Superior Court decision in Sabella v. Estate of Milides, which held that claims for wrongful use of civil proceedings do not require a certificate of merit.
However, Fitzgerald noted that Sabella said that plaintiffs are not exempt from filing certificates of merit "merely because the plaintiff 'fails to expressly indicate in its complaint that it is asserting a professional liability claim.'" Fitzgerald included several sections from the plaintiffs' amended complaint that make reference to legal malpractice, reasonable diligence required by an attorney, rules of professional conduct and prudent professionalism, among other things, and concluded that the claims were for legal malpractice.
"Appellants' claims were predicated on their assertion that the attorney defendants should have known there was a lack of legal authority to support Mixon's malpractice action, and had a duty not to file the suit based on their professional legal knowledge," he said. "Knowledge of legal precedent, however, does not fall within the realm of common knowledge and experience."
Viola, who represented himself, questioned the reason that the case has been pursued for so long, and said he was pleased with the decision.
"Those were exactly the arguments I was making, and they accept them," he said. "Hopefully it's over and done with."
Attorneys Jonathan F. Altman of the Altman Law Firm, who represented the Korals, and Jeffrey McCarron of Swartz Campbell, who represented the appellees, did not return calls for comment.
(Copies of the six-page opinion in Koral v. Mixon, PICS No. 13-0194, are available from Pennsylvania Law Weekly. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •