Superior Court Continues to Rule That The Gist of the Action Doctrine Is No Longer Valid

In the case of Poteat v. Asteak, No. 729 EDA 2023 (Pa. Super. Dec. 11, 2025) (en banc) (Stabile, J., dissenting with Pannella, P.J.E., and King, J., joining), the Pennsylvania Superior Court ruled that the trial court had erred in applying the gist of the action doctrine to dismiss a legal malpractice Complaint.

According to the Opinion, the Plaintiff retained an attorney to defend him in a criminal case. After the Plaintiff was found guilty, he sued his attorney alleging a breach of contract claim.

The appellate court emphasized that, while the Plaintiff asserted that the attorney breached the retainer agreement by failing to provide competent legal services, in the Complaint, the Plaintiff failed to plead any express written promise from the retainer agreement confirming that there was an explicit agreement that the attorney would provide competent legal services.

The Defendant attorney filed a demurrer and asserted that the breach of contract claim filed by the Plaintiff was legally insufficient under the gist of the action doctrine. More specifically, the Defendant asserted that the Plaintiff’s claims sounded in tort and that, since the Plaintiff’s claim was only one in negligence, the applicable statute of limitations barred the claim.

The Defendant attorney additionally argued in his Preliminary Objections that the Plaintiff’s Complaint was legally insufficient in that it was based on alleged implied duties under the contract where Pennsylvania law required a breach of contract claim to be based upon express written promises contained in the contract, which here, was a retainer agreement.

The Plaintiff responded by asserting that a breach of a specific contractual term was not necessary under the law and that general assertions of a breach of a duty were sufficient to support his breach of contract claim.

The trial court sustained the Preliminary Objections by recasting the Plaintiff’s breach of contact claim as a tort claim. The trial court then concluded that the statute of limitation barred that tort claim and, as such, the Complaint was dismissed.

On appeal, the en banc court overruled the trial court’s decision. The Superior Court in Poteat ruled that the trial court erred under the law of the subsequent Superior Court decision in the case of Swatt v. Nottingham, 342 A.3d 23 (Pa. Super. July 2, 2025) (en banc) in which that court overruled the validity of the gist of the action doctrine.  The Tort Talk post on the Swatt case can be viewed HERE.

The Superior Court in Poteat also asserted that an implied duty alone under a contract is sufficient to sustain either a breach of contract action or a claim sounding in tort.

Accordingly, the Poteat court held that the Plaintiff had an enforceable contractual right against his retained attorney based solely on an implied duty of the attorney to represent a client in a manner that comports with professional standards of the legal profession. Stated otherwise, the Superior Court in Poteat asserted that an implied duty, alone, may satisfy the duty element of a claim for a breach of contract for legal services.

As such, the Superior Court overruled the trial court’s decision in this case and, in doing so, continued the erosion of the validity of the gist of the action doctrine in Pennsylvania.

Anyone wishing to review a copy of the Majority Opinion this en banc decision may click this LINK.  The Dissenting Opinion written by Judge Victor F. Stabile and joined by Judge Panella and Judge King can be viewed HERE.