Not All Actions Against Attorneys require a Certificate of Merit


            Sabella v. Estate of Milides, 992 A.2d 180 is a case about an attorney’s misconduct, in which the trial court denied Appellant’s motion to strike the judgment of non pros.  A judgment of non pros enters judgment in favor of one party because the other has not done something, such as not appeared in Court.  Here, Appellant did not file a certificate of merit, which is required in professional liability case.

            Here, the Appellant acquired a deed from R/T Enterprises, the losing party in a personal injury case, where the plaintiffs were the Abahazys.  However, now the Appellee on behalf of the Abahazys is suing the Appellant for knowingly participating in a fraudulent transfer of property pursuant to the Pennsylvania Uniform Fraudulent Transfer Statute.  Basically, the Appellee is going after more money because of the transfer of property from R/T Enterprises to Appellant.  Additionally, Appellant counterclaims against Appellee, claiming the lawsuit against him is frivolous and without merit. Such a claim would have repercussions for Appellee’s attorney as well.  This claim is the question before the Superior Court of Pennsylvania because the Trial Court upheld Appellee’s motion to quash Appellant’s claim.

            Legal malpractice cases are professional liability cases that require a certificate of Merit.  A legal malpractice case requires that a plaintiff  have a viable cause of action ha dit not been for the actions of the attorney he/she hired.  Here, however, Appellant asserts his claims against Appellee for abuse and wrongful use of the civil proceedings process, as opposing council and not Appellant’s attorney.  Additionally, although Appellant’s claim calls into question Appellee’s professional judgment and legal decisions it does not automatically make it a professional liability claim.  However, the Trial Court disagreed and held that because Appellant’s claim dealt with Appellee’s deviation from professional care that Appellant’s counterclaim was one that required a certificate of merit.

            Ultimately, the Superior Court reversed the Trial Court’s decision. First, the Appellant stated that the Appellee’s activity was one as an “attorney at law,” but not the Appellant’s attorney at law.  Next, the Appellant was not within the narrow scope, third-party beneficiaries, the Court adopted from the Restatement, requiring a certificate of merit (this provision allows third-parties incurring benefits from the attorney’s service to sue for legal practice, but also requires them to provide a certificate of merit).  Finally, the Superior Court agreed with Appellant’s argument that just because his complaint questioned Appellee’s professional conduct, it doesn’t automatically place the case in the professional liability category.

About Matthew Weisberg

Matthew B. Weisberg, Esquire, Managing Partner of Prochniak Weisberg, P.C. (, focuses his practice almost exclusively on the representation of consumers who are victims of mortgage, real estate and auto purchase/financing fraud, as well as in foreclosure/debt collection defense and civil rights representation (employment discrimination and excessive police force). Five years ago having “switched sides,” Mr. Weisberg formerly represented exclusively commercial and residential lenders in the prosecution of mortgage foreclosure and distressed debt collection litigation, lender liability and real estate speculator defense, and tort defense for financial injury defendants. Matthew welcomes all attorney inquiries and especially referrals: 610-690-0801 &
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