The Beginning of the End? Pennsylvania Supreme Court Agrees to Address Whether the Gist of the Action Doctrine Remains Valid Law

According to a July 14, 2026 article by Riley Brennan in The Legal Intelligencer entitled "Pa. High Court to Revisit 'Gist of the Action' Doctrine for Legal Malpractice Cases, the Pennsylvania Supreme Court has agreed to address the ongoing validity of the doctrine in the case of Poteat v. Asteak.

Pennsylvania Supreme Court

As Tort Talkers may recall, my son, Daniel, Jr. (now about to enter his third year at Virginia Law where he is an Articles Editor on the Virginia Law Review) and I recently published a timely article in the April, 2026 edition of the Pennsylvania Bar Association Quarterly entitled "The Rise and Fall of the Gist of the Action Doctrine," in which the history of the doctrine was analyzed and and predictions were made regarding possible further developments in the law with respect to the doctrine.

We again thank Professor Emeritus Robert E. Rains of the Dickinson School of Law and Editor of the Quarterly for selecting this article for publication and for his excellent editorial assistance.

Here is the prediction from the end of the article with regards to the future of the gist of the action doctrine:

Thus, Swatt and Poteat appear to herald the beginning of the end of the gist of the action doctrine as a defense in Pennsylvania civil litigation matters. If and when the Pennsylvania Supreme Court has another opportunity to consider the validity of the gist of the action doctrine, it can be reasonably anticipated that the Supreme Court will finally swat the remaining mist of this doctrine into oblivion as contrary to the Pennsylvania Rules of Civil Procedure. Moreover, most of the current Justices on the Pennsylvania Supreme Court will also likely see the purpose of the gist of the action doctrine in maintaining the conceptual differences between tort and contract actions as less important than allowing injured parties to explore all potential theories of recovery available under the law.

With the anticipated downfall of the gist of the action doctrine, negligence and breach of contract will no longer be viewed as causes of action encompassing different types of wrongs that have to be kept apart. Rather, these types of claims will be viewed as parts of a menu of numerous options from which plaintiffs may select when deciding how to proceed with a lawsuit, including the option of proceeding with both types of claims in a single lawsuit. The anticipated total eradication of the defense of the gist of the action doctrine will therefore serve to expand the avenues of recovery for injured parties in Pennsylvania. However, until such time that the Pennsylvania Supreme Court again addresses the viability of the gist of the action doctrine and provides clarity and guidance, the courts and members of the bar will be left to grapple with implications of the Superior Court’s recent decisions on the doctrine.

To view the entire article, please click this LINK to the Tort Talk post on the article and then click the Link within that post to view the article.