Gist of the Action Doctrine Accepted for Review by Pennsylvania Supreme Court

In the case of Bruno v. Erie Insurance Company, No. 347 WAL 2012 (Pa. Sept. 11, 2013), the Pennsylvania Supreme Court has included the “gist of the action” doctrine in one of its questions accepted.  According to Attorney James Beck of the Philadelphia Office of Reed Smith and writer for the excellent Drug and Device Law Blog, the Pennsylvania Supreme Court has never accepted or rejected this defense.

As described by Attorney Max Kennerly of the Beasley Firm in Philadelphia in his excellent Litigation & Trial blog, "the 'gist of the action' doctrine precludes negligence claims where, under the facts alleged, the defendant has no duty to the plaintiff except for those created by contract. The “gist” is contractual — there are no duties between the parties except for those created by the contract."

Attorney Kennerly cited the following:  "Under Pennsylvania law, the gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) citing Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992). The difference between a cause of action for tort and breach of contract is that “tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.” Bash, 601 A.2d at 829. A breach of contract may give rise to a tort claim only when defendant’s wrongful conduct is the gist of the action, and the contract is collateral. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 582 (Pa. Super. Ct. 2003) citing Bash, 601 A.2d at 829)."

Anyone wishing to review the Pennsylvania Supreme Court's Order in Bruno may click this LINK.

I send a "thanks" to Attorney James Beck of the Philadelphia office of Reed Smith for the heads-up on this Order.