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.

Article: The Rise and Fall of The Gist of The Action Doctrine

Here is a LINK to the latest edition of the Pennsylvania Bar Association Quarterly which contains an article written by my son, Daniel E. Cummins, Jr. and myself entitled "The Rise and Fall of the Gist of the Action Doctrine." The article can be found on p. 118 of this edition.

My son, Daniel, is currently finishing up his second year at Virginia Law School where he is currently serving as one of the Articles Editors for the Virginia Law Review. He is set to work as a Summer Associate this summer with Cozen & O'Connor in their Philadelphia office. He is also looking forward to his clerkship with Federal Middle District Court Judge Joseph F. Saporito, Jr. after he graduates from law school next year.

As noted in the article, the gist of the action doctrine prevents plaintiffs from bringing both a breach of contract claim and a negligence claim based on an alleged breach of the same duty.

The article reviews the centuries of jurisprudence behind the gist of the action doctrine as compared to the recent Pennsylvania Superior Court decisions that call into question the continuing validity of the doctrine. The article also predicts further anticipated developments in the law going forward.

Daniel and I send thanks to Professor Emeritus Robert E. Rains of the Dickinson School of Law, who is the Editor of the Pennsylvania Bar Association Quarterly, for selecting this article for publication and for editing it into a better article.  We also thank Tina R. Schreiber for her editorial assistance on the article.



I also proudly note that I am referenced the first article listed in this edition. That article, written by Joel Fishman, Ph.D., M.L.S. and entitled "The Pennsylvania Bar Association Quarterly: A 10-Year History Volumes 87-96 (2016-2025)," references two past PBA Quarterly articles of mine on pages 80-81 as part of the history of this periodical. I thank Professor Rains for selecting those articles for publication as well.

THE 2025 TORT TALK TOP TEN

THE 2025 TORT TALK TOP 10

10. “Farcical” Fad of Allegations of Recklessness Continues

Despite the well-settled law since the Pennsylvania Rules of Civil Procedure first went into effect 78 years ago on January 1, 1947 establishing that Pennsylvania is a fact-pleading state when it comes to pleadings, the trial courts of Pennsylvania have continued to allow plaintiffs to plead recklessness in every case regardless of the facts. Click this LINK to see the many recent Tort Talk blog posts on this topic.

These trial court rulings allowing such pleading are based on a reading of Pa.R.C.P. 1019(b) as found in the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20 LP, 286 A.3d 785 (Pa. Super. 2022) (en banc). Judge Victor P. Stabile noted in his Dissenting Opinion in that case that the Majority’s decision was based on “farcical” reasoning. Monroe, 286 A.3d at 830 (Dissenting Opinion).This ‘farcical’ fad of allowing plaintiffs to plead recklessness with reckless abandon regardless of the facts of the case continued in 2025 in the Pennsylvania state courts.

While the state trial court judges from all around the Commonwealth continued to routinely allow claims of recklessness in every case, at least one federal district court judge over the past year ruled to the contrary. In McKinney v. GM, LLC, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the Western District Federal Court granted a partial Motion to Dismiss claims of punitive damages after finding that the Plaintiff failed to plead sufficient facts to support a punitive damages claim. The court noted well established rule of law in Pennsylvania that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence.

The Tort Talk blog post on the McKinney case can be viewed HERE.

9. Nearly 200 Year Old Gist of the Action Doctrine Ruled Invalid

The gist of the action doctrine generally holds that an injured party can not plead both a negligence cause of action and a breach of contract cause of action in the same lawsuit. The purpose of the doctrine was to maintain the difference between the two theories of liability in civil litigation matters.

In the case of Swatt v. Nottingham Village, 324 A.3d 23 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court boldly ruled that the gist of the action doctrine, which has been essentially recognized in English and American jurisprudence for over 200 years, was no longer valid.

The Tort Talk blog post on the Swatt case can be viewed at this LINK.

The court essentially ruled in Swatt that the law has always recognized an injured parties right to choose and pursue either theory of liability, that is, a negligence theory of liability or a breach of contract theory, and that, under the Pennsylvania Rules of Civil Procedure, injured parties are permitted to plead their theories of liability in the alternative under a single personal injury Complaint.

The Superior Court’s decision in Swatt, which was handed down in July of this year, was followed by another Superior Court panel in a December 11, 2025 decision in the case of Poteat v. Asteak, ___ A.3d ___, 729 EDA 2023 (Pa. Super. 2025). The Tort Talk post on this case can be reviewed HERE.

Keep an eye out in 2026 for an upcoming article on this topic written by myself and my son, Daniel E. Cummins, Jr., a second year student at Virginia Law School, to be published this upcoming spring in the Pennsylvania Bar Association Quarterly.


8. Test to Show Good Cause for IME

In Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court held that the requirement of good cause set forth in Rule 4010 regarding requests for medical examinations (IMEs) in civil litigation matters is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes.

The court in Verba ruled that good cause can exist to support a request for an IME in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.

The Tort Talk post on the Verba can be viewed HERE.


7. New Jury Selection Rule Goes Into Effect

On April 1, 2025, the new Pa.R.C.P 220.3 went into effect requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement.


6. Archaic Local Rules Overruled

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), Superior Court issued a decision that invalidated the archaic local rule of the Pike County Court of Common Pleas that required original signatures on all filings with the Court. As such, going forward electronic signatures may be utilized on documents being filed in Pike County.

The Tort Talk blog post on the Scheibe case can be viewed at this LINK.

Over this past year, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, Inc., No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025). In Biros, the appellate court found that Westmoreland County’s archaic requirement that notices of appeal could only be filed in person or by mail was such a local rule. Accordingly, the appellate court ruled that the appellant’s initial filing was properly and timely filed and was sufficient to initiate the appeal.

The Tort Talk blog post on the Biros case can be viewed HERE.


5. Arbitration Clauses and Children

In the case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), a case that involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone, the Pennsylvania Supreme Court held that a parent who signs an Arbitration Agreement cannot bind a non-signing spouse or a minor child to the terms of that agreement.

The Supreme Court held that parents lacked the authority to bind a minor to an agreement to arbitrate, as this would deprive the minor of judicial protections and oversight designed to safeguard their interests. As noted, the Pennsylvania Supreme Court also held that a parent who signs an Arbitration Agreement cannot bind a non-signing parent, or minor child, to its terms.

The Tort Talk blog post on this Pennsylvania Supreme Court case can be viewed HERE.

The Pennsylvania Supreme Court handed down the same decision on the same date in the consolidated case of Santiago v. Philly Trampoline Park, No. 24 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.).


4. Statutory Employer Doctrine Upheld

In the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the plaintiff seeking to abolish this doctrine.

The Supreme Court reaffirmed the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930 as enunciated in the case of McDonald v. Levinson Steel Co., 153 A. 424, 426 (Pa. 1930).

That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. § 462, a general contractor that hires a subcontractor to perform work on a jobsite is deemed to be an “employer” of employees of the subcontractor in certain circumstances. In those instances where the subcontractor does not make payment, the general contractor will be considered liable for the worker’s compensation payments.

In exchange for this imposition of secondary liability on the general contractor, the Act’s statutory employer provision in Section 203 of the Act, 77 P.S. § 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker in any third party lawsuit arising out of the same accident.

In this Yoder case, the Pennsylvania Supreme Court rejected arguments by the Plaintiff that the statutory employer doctrine should be rejected and/or that the immunity afforded to employers under the doctrine should be deemed to be waivable in certain circumstances.

The Tort Talk blog post on the Yoder case can be viewed HERE.


3. New Cell Phone Law

While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect on June 5, 2025 that banned any and all cell phone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cell phone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

The law, known as “Paul Miller’s Law,” went into effect on June 5, 2025 and made it illegal to use a cell phone in your hands in any way while driving. The law even prohibits these activities even when one is stopped at a red light or in a traffic jam.

Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of the cell phone in your hand while driving.

For the next year through June of 2026, the penalty for a violation will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.


2. Doctrine of Forum Non Conveniens Clarified

Over the past year, the Pennsylvania Supreme Court provided clarity on the test to be applied in reviewing a Petition to Transfer Venue under the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, Inc., No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).

The Supreme Court of Pennsylvania that the Superior Court’s imposition of a “key witness” requirement in the analysis was inconsistent with Pennsylvania precedent on the issue of the type of evidence required to secure a transfer of a matter under the doctrine of forum non conveniens.

The Supreme Court otherwise clarified that a party seeking a transfer of a matter under the doctrine of forum non conveniens must identify the burdened witnesses and provide a general statement of their respective testimony. The Supreme Court confirmed that the petitioner need not show that the testimony of the witnesses is “critical” or “necessary” to the defense.

The Tort Talk blog post on this notable Pennsylvania Supreme Court decision can be viewed HERE.


1. Artificial Intelligence

In the year 2025, courts and litigators found a steady rise in the use of artificial intelligence (AI) in many aspects of the law. AI platforms have begun to be used to assist in the evaluation of cases and also with respect to legal research and brief writing.

Near the end of this year, the Pennsylvania Supreme Court issued its “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel." This policy is designed to serve as an interim policy to guide judges and court personnel who desire to use artificial intelligence (AI) in their day-to-day work. This policy allows for judges and court personnel to utilize AI for summarizing documents, conducting preliminary legal research, and drafting initial versions of documents.

As noted in the August 14, 2025 Pennsylvania Law Weekly article entitled “AI and Its Proper Use in the Practice of Law” by Daniel E. Cummins and Ursinus College Computer Science major, Michael Cummins, a number of lawyers in Pennsylvania and across the country have been sanctioned for submitting fake legal citations, known as hallucinations, as a result of utilizing AI platforms for legal research and the writing of briefs and not checking the accuracy of such citations.


The “AI Hallucinations Cases Database” maintained by Damien Charlotin, an attorney in France, confirms that attorneys all over the world have been getting in trouble for filing motions and briefs with courts that contain fake, AI generated citations and information. According to that database, which can be viewed at this LINK, as of December of 2025, there were at least four (4) reported decisions handed down in Pennsylvania in which attorneys were in trouble in this regard.

It is anticipated that, in the near future, the Pennsylvania Supreme Court may also come out with rules to guide attorneys on the proper use of AI in the practice of law relative to any filings with the state courts.

In the Pennsylvania federal courts, Judge Karoline Mehalchick of the Federal Middle District Court has been leading the way by crafting a civil practice order that is issued in all of her matters that requires attorneys to identify any AI-created portions of their court filings and to certify to the court that any citations contained therein have been checked for accuracy.



New Book To Consider Purchasing To Improve Your Practice of Law

Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book entitled Raising the Bar: A Practical Guide to the Practice of Law written by Daniel E. Cummins. 

The book compiles articles written by the author over the past 25 years providing practice and professionalism tips for lawyers and judges.. The book is designed to provide lawyers, whether they be new or experienced, with tips and reminders on how to improve their day-to-day practice of law and efforts at a work-life balance.

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.

ARTICLE: Out With the Old, In With the New: A Civil Litigation Year-End Review

The below article of mine appeared in the December 11, 2025 edition of the Pennsylvania Law Weekly and is republished here with permission.

Expert Opinion // Civil Procedure

Out With the Old, In With the New: 

A Civil Litigation Year-End Review

By

Daniel E. Cummins

December 11, 2025

Over the past year, there was a steady flow of notable decisions handed down by the various state and federal courts across the Commonwealth of Pennsylvania as another year of civil litigation jurisprudence goes down in the books. Those decisions are reviewed below.

Overall, some old rules have been ousted as no longer viable, and some new rules have been enunciated to guide civil litigation practice going forward.

Readers may secure more details on the decisions summarized below, as well as a copy of the actual court decisions referenced, by going to the Tort Talk Blog and typing the name of the plaintiff into the search box in the upper right-hand corner of the blog.

Good Cause for IME

In a decision that was handed down near the end of the previous year in the case of Verba v. Erie Insurance Exchange, 326 A.3d 973 (Pa. Super. 2024 ), the Pennsylvania Superior Court addressed the standard for determining whether good cause exists to compel the Plaintiff to cooperate with a request for a medical examination under Pa.R.C.P. 4010.

The court noted that the requirement of good cause set forth in Rule 4010 is designed to protect parties against an unwarranted invasion of their privacy and to preclude the use of such a medical examination for improper purposes. Simply put, the court in Verba held that good cause can exist in a pending litigation if there is a controversy, or a dispute between the parties, regarding the validity of the plaintiff’s injury claims.

Allegations of Recklessness

The year 2025 began as 2024 ended—with state trial court judges looking past the fact that Pennsylvania is a fact-pleading state and allowing plaintiffs to plead recklessness and punitive damages claims in complaints with reckless abandon in all personal injury matters regardless of the facts involved. This trend continued throughout this year with trial court judges relying upon the errant Pennsylvania Superior Court decision in the case of Monroe v. CB H20, 286 A.3d 785 (Pa. Super. 2022) (en banc).

While the state trial court judges from all around the commonwealth continued to routinely allow claims of recklessness in every case, at least one federal district court judge said not so fast. In McKinney v. GM, No. 1:24-CV-00140-SPB (W.D. Pa. Aug. 28, 2025), Judge Susan Paradise Baxter of the U.S. District Court for the Western District of Pennsylvania granted a partial motion to dismiss claims of punitive damages after finding that the plaintiff failed to plead sufficient facts to support a punitive damages claim.

The court noted that allegations of recklessness that could support a punitive damages claim must involve more than claims of ordinary negligence. In McKinney, the court found that the products liability complaint contained no factual allegations identifying the nature of the alleged defect, how the defendant allegedly became aware of it, or what actions the defendant failed to take in conscious disregard of that risk.

Baxter, applying Pennsylvania law, emphasized that punitive damages are to be considered an extreme remedy that are not available for conduct arising from mere inadvertence, mistake or errors in judgment. The court found that the complaint in the McKinney case failed to contain any factual allegations that even suggested that the defendant acted with an evil motive or in conscious disregard of a known risk.

Attorney Discipline

The first notable decision handed down by the Pennsylvania Supreme Court over this past year was handed down in February. In the case of Office of Disciplinary Counsel v. Anonymous Attorney, [docket no. withheld by court] (Pa. Feb. 12, 2025), the Pennsylvania Supreme Court clarified the standard of proof for a disciplinary hearing involving allegations of attorney misconduct. The court opted for a higher burden.

According to the opinion, prior to this ruling, the previously accepted standard of proof for disciplinary cases against attorneys was “a preponderance of the evidence through clear and satisfactory evidence.” In this case, the Pennsylvania Supreme Court held that the burden of proof of disciplinary cases going forward should be “clear and convincing evidence.”

In ruling in this fashion, the court noted that “attorney disciplinary proceedings are not civil disputes for money damages, and the public’s and the attorney’s interests are not clearly minimal.” The court otherwise noted that “disciplinary proceedings are not strictly civil nor criminal in nature, but rather have been styled as ‘quasi criminal.’” For these reasons, the court chose to go with a higher burden of proof.

New Jury Selection Rule Goes Into Effect

In April, the new Pa.R.C.P 220.3 went into effect on April 1 requiring trial court judges to be present in the courtroom for jury selections in civil cases unless the litigants opt out of the requirement. This rule was set to take effect on April 1, 2025, and can be found under Pa. R.C.P. 220.3.

Avenues of Recovery in Worker’s Compensation Cases Expanded

In May of this year, the Pennsylvania Supreme Court overturned decades of precedent with its decision in the case of Steets v. Celebration Fireworks, (Workers' Compensation Appeals Board), 335 A.3d 1076 (Pa. May 30, 2025), in order to allow a new line of worker’s compensation claims to go forward.

In this decision, the Supreme Court created new law and cleared the way for the estates of those individuals who died as a result of work-related injuries to collect benefits related to claims for disfigurement and injury. The court overturned long-standing case law regarding whether specific loss benefits are payable after an employee’s death from causes related to the work injury.

Archaic Local Rule Overruled

In another decision of note from May of this year, the Superior Court struck down a trial court’s local rule.

In the case of Scheibe v. Woodloch Resort, No. 1478 EDA 2024 (Pa. Super. May 20, 2025), the archaic local rule at issue from the Pike County Common Pleas Court required original signatures on all filings with the court, which did not allow for electronic signatures.

In Scheibe, the Pennsylvania Superior Court noted that the trial court had improperly refused to docket paperwork relative to the initial filing of the lawsuit. The prothonotary had rejected the filing because the documents contained only an electronic signature in violation of the local rules that required original signatures.

The appellate court first confirmed that there was no requirement in the Pennsylvania Rules of Civil Procedure for any filing to be hand-signed by a party or their attorney. Rather, the statewide Rules of Civil Procedure contemplated that a “signature” could include a computer-generated signature.

The Superior Court additionally held that, under the Pennsylvania Rules of Civil Procedure, documents mailed to the prothonotary’s office were deemed to be filed when received by that office as a litigant would have no control over when that office would stamp and process the filing. The Superior Court also confirmed that the Pennsylvania Rules of Civil Procedure expressly prohibited the rejection of a filing that complied with the Pennsylvania Rules of Civil Procedure where that filing did not meet the requirements of a local rule.

For all of these reasons, the Superior Court agreed that the complaint was timely filed. In the process, the appellate court struck down the archaic local rule of court.

New Cellphone Law

While texting while driving has been banned in Pennsylvania since 2012, in June of this year, a new law went into effect that banned any and all cellphone use while driving on the roads of Pennsylvania. Under certain exceptions noted in the law, a driver may use a cellphone for emergency purposes. A driver may also use a mobile device if they pull off to the side of the road and stop where a vehicle may safely remain in a stopped position.

The law, known as “Paul Miller’s Law,” went into effect on June 5, 2025, and made it illegal to use a cellphone in your hands in any way while driving. The law even prohibits these activities even when one is stopped at a red light or in a traffic jam. Under the language of the law, it appears that an overhead bluetooth system can be used to make calls as long as one uses the buttons on the steering wheel and the dash and not by way of pushing buttons on the cellphone.

For the next year through June 2026, the penalty for a violation will be a written warning. Starting June 5, 2026, the penalty will be a summary offense with a $50 fine, plus court costs and other fees. Moreover, if a driver is convicted of both vehicular homicide and driving while distracted, they may be sentenced up to an additional five years in prison.

Gist of the Action Doctrine

In July, the Pennsylvania Superior Court addressed the viability of the gist of the action doctrine. Under this doctrine, a negligence claim cannot be recast in a complaint as a breach of contract claim and vice versa.

In the case of Swatt v. Nottingham Village, 2025 Pa. Super. 138 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), an en banc panel of the Pennsylvania Superior Court addressed the issue of whether the gist of the action doctrine should continue to be applied to contract actions as it has been for the past 26 years.

This case arose out of a nursing home malpractice claim. The plaintiff filed claims for both malpractice and breach of contract.

Despite a number of prior cases confirming that the gist of the action doctrine does apply as a defense where a breach of contract claim is added to a negligence claim, this en banc panel of the Superior Court concluded, after completing an exhaustive review of the case law allowing for alternative pleadings, that the gist of the action doctrine should no longer apply to prevent the pleading of an alternative breach of contact claim in a negligence action. Rather, the court noted that, under any set of facts, plaintiff could make claims for both negligence and breach of contact in the alternative wherever warranted.

This ruling eradicating this defense could prove important in those cases where a plaintiff’s negligence claim is potentially barred by the applicable two-year statute of limitations, but where the plaintiff attempts to keep the lawsuit alive by pleading, in the alternative, a breach of contract claim which has a four-year statute of limitations claim.

Another Archaic Local Rule Overruled

In August, the Superior Court struck down another archaic local rule in its decision in the case of Biros v. U Lock, No. 113 WDA 2024 (Pa. Super. Aug. 1, 2025).

In Biros, the Superior Court vacated a trial court order out of the Westmoreland County Common Pleas Court of in which the trial court had denied, with prejudice, an appellant’s motion to file her Pa. R.A.P. 1925(b) concise statement of errors complained of on appeal, nunc pro tunc.

The Superior Court noted that, Pa. R.C.P. 205.4(e)(2) bars any refusal by a trial court of an otherwise compliant pleading for filing based upon a requirement of a local rule pertaining to the electronic filing of legal papers. The appellate court found that Westmoreland County’s archaic requirement that notices of appeal could only be filed in person or by mail was such a local rule. Accordingly, the appellate court ruled that the appellant’s initial filing was properly and timely filed and was sufficient to initiate the appeal.

Doctrine of Forum Non Conveniens Clarified

In September of this year, the Pennsylvania Supreme Court provided clarity on the test to be applied in reviewing a petition to transfer venue under the doctrine of forum non conveniens in the case of Tranter v. Z & D Tour, No. 32 EAP 2024 (Pa. Sept. 25, 2025) (Op. by Wecht, J.).

This matter arose out of a multi-vehicle collision that occurred in Westmoreland County, Pennsylvania involving a passenger bus and commercial vehicles. The crash resulted in five deaths and numerous injuries. The plaintiffs who resided in various locations across the country and abroad, filed personal injury lawsuits in the Philadelphia County Court of Common Pleas against several corporate defendants, all of which conducted business nationwide. The defendants sought to transfer the cases to Westmoreland County under the doctrine of forum non conveniens.

The Supreme Court held that the Superior Court’s imposition of a “key witness” requirement in the analysis was inconsistent with Pennsylvania precedent on the issue of the type of evidence required to secure a transfer of a matter under the doctrine of forum non conveniens.

The Supreme Court otherwise clarified that a party seeking a transfer of a matter under the doctrine of forum non conveniens must identify the burdened witnesses and provide a general statement of their respective testimony. The Supreme Court confirmed that the petitioner need not show that the testimony of the witnesses is “critical” or “necessary” to the defense. As such, the Supreme Court upheld the trial court’s decision to transfer the cases out of Philadelphia County and to Westmoreland County as a proper exercise of the trial court’s discretion.

Arbitration Clauses and Children

On the same day in September that it issued its decision in the Tranter case, the Pennsylvania Supreme Court held that a parent who signs an arbitration agreement cannot bind a nonsigning spouse or a minor child to the terms of that agreement.

The case of Shultz v. Skyzone, No. 25 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.), involved the claims brought on behalf of several minors who were injured at trampoline parks operated by Skyzone in Philadelphia. In each instance, only one parent had signed a “participation agreement, release, and assumption of the risk” on behalf of their child. That agreement contained an arbitration provision waiving the right to sue in court.

After the lawsuits for personal injuries were filed, the defendant filed petitions to compel arbitration, relying upon the signed agreements. The issue was litigated all the way up to the Pennsylvania Supreme Court.

The Supreme Court held that parents lacked the authority to bind a minor to an agreement to arbitrate, as this would deprive the minor of judicial protections and oversight designed to safeguard their interests. As noted above, the Pennsylvania Supreme Court also held that a parent who signs an arbitration agreement cannot bind a nonsigning parent, or minor child, to its terms.

The Pennsylvania Supreme Court handed down the same decision on the same date in the consolidated case of Santiago v. Philly Trampoline Park, No. 24 EAP 2023 (Pa. Sept. 25, 2025) (Op. by Donohue, J.).

Statutory Employer Doctrine Upheld

In October, in the case of Yoder v. McCarty Construction, 43 MAP (Pa. Oct. 23, 2025), the Pennsylvania Supreme Court reaffirmed the validity of the statutory employer doctrine under the Worker’s Compensation Act and rejected arguments from the plaintiff seeking to abolish this doctrine.

According to the opinion, the plaintiff suffered a workplace injury. The plaintiff was an employee of a subcontractor. The general contractor asserted the defense of statutory employer immunity in the personal injury action arising out of the accident.

The Supreme Court began its decision by reaffirming the law behind the statutory employer doctrine that has been in effect in Pennsylvania since 1930 as enunciated in the case of McDonald v. Levinson Steel, 153 A. 424, 426 (Pa. 1930).

That long-standing law provides that, under Section 203 of the Workers’ Compensation Act (Act), 77 P.S. Section 462, a general contractor that hires a subcontractor to perform work on a jobsite is deemed to be an “employer” of employees of the subcontractor in certain circumstances. In those instances where the subcontractor does not make payment, the general contractor will be considered liable for the worker’s compensation payments. In exchange for this imposition of secondary liability on the general contractor, the act’s statutory employer provision in Section 203 of the act, 77 P.S. Section 52, extends to a general contractor the same tort immunity afforded to the subcontractor of the injured worker in any third-party lawsuit arising out of the same accident.

As noted, at the Supreme Court level in this Yoder case, the court rejected arguments by the plaintiff that the statutory employer doctrine should be rejected or that such immunity should be deemed to be waivable in certain circumstances.

Artificial Intelligence

In the year 2025, courts and litigators found a steady rise in the use of artificial intelligence (AI) in many aspects of the law. AI platforms have begun to be used to assist in the evaluation of cases and also with respect to legal research and brief writing.

Near the end of this year, the Pennsylvania Supreme Court issued an interim policy to guide judges and court personnel who desired to use AI in their day-to-day work.

This policy allows for judges and court personnel to utilize AI for summarizing documents, conducting preliminary legal research, and drafting initial versions of documents. These rules, which are compiled under a document entitled the “Interim Policy On The Use Of Generative Artificial Intelligence By Judicial Officers And Court Personnel" was set to go into effect on Dec. 8, 2025.

It is anticipated that, in the near future, the Pennsylvania Supreme Court may also come out with rules to guide attorneys on the proper use of AI in the practice of law relative to any filings with the courts.

In the Pennsylvania federal courts, Judge Karoline Mehalchick of the U.S. District Court for the Middle District of Pennsylvania has been leading the way by crafting a civil practice order that is issued in all of her matters that requires attorneys to identify any AI-created portions of their court filings and to certify to the court that any citations contained therein have been checked for accuracy.

As noted in the Aug. 14, 2025, the Pennsylvania Law Weekly article titled “AI and Its Proper Use in the Practice of Law,” by Daniel E. Cummins and Michael Cummins, a number of lawyers in Pennsylvania and across the country have been sanctioned for submitting fake legal citations, known as hallucinations, as a result of utilizing AI platforms for legal research and the writing of briefs and not checking the accuracy of such citations. Such issues have caused a need for the above rules as well as a rise in continuing legal education courses designed to educate attorneys to be careful in utilizing these emerging technologies.

New Book

Last but not least, it is noted that, over the past year, the Pennsylvania Bar Institute (PBI) published an e-book titled Raising the Bar: A Practical Guide to the Practice of Law, written by Daniel E. Cummins. The book compiles articles written by me over the past 25 years providing practice and professionalism tips for lawyers and judges, many of which articles were originally published right here in the Pennsylvania Law Weekly. The book is designed to provide lawyers, whether they be new or experienced, with tips and reminders on how to improve their day-to-day practice of law and efforts at a work-life balance.

Daniel E. Cummins is the managing partner at Cummins Law in Clarks Summit, Pennsylvania. Contact him at dancummins@cumminslaw.net.

Reprinted with permission from the December 11, 2025 edition of the "The Pennsylvania Law Weekly © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

Superior Court Rules, For First Time, that Gist of the Action Doctrine Does Not Apply To Support Dismissal of a Breach of Contract Claim

In the case of Swatt v. Nottingham Village, 2025 Pa. Super. 138 (Pa. Super. July 2, 2025) (en banc) (Op. by Kunselman, J.), a Pennsylvania Superior Court en banc panel addressed the issue of whether the gist of the action doctrine applies to contract actions.

This case arose out of a nursing home malpractice claim. The Plaintiff filed claims for both malpractice and breach of contract.

A central issue in the case was to be decided by the court is whether the gist of the action doctrine applied to breach of contract action.

Typically, under the gist of the action doctrine, courts have held that negligence claims cannot be pursued based on facts that confirm that the gist of the action actually involves a breach of contract claim.

In this case, the Superior Court was addressing the opposite situation, that is, whether the gist of the action doctrine prevents a Plaintiff from proceeding on a breach of contract claim that is actually based upon facts that give rise to a negligence claim.

Despite a number of prior cases confirming that the gist of the action doctrine does apply in breach of contract cases, this en banc panel of the Superior Court, after completing an exhaustive review of the gist of the action doctrine concluded that the doctrine does not apply to breach of contact actions.

Rather, the court noted that, under any set of facts, Plaintiff could make claims for both negligence and breach of contact where warranted.

Anyone wishing to review a copy of the Majority decision may click this LINK.

The Concurring Opinion by President Judge Lazarus may be viewed HERE.

The Concurring Opinion by Judge Stabile may be viewed HERE.

The Concurring Opinion by Judge King may be viewed HERE.

Source of image: Photo by Andrea Piacquadio on www.pexels.com.

Nursing Home's Effort to Have Lawsuit Dismissed By Virtue of an Arbitration Clause Denied

In the case of Perry v. Saber Healthcare Holdings, LLC, No. 2024-CV6608 (C.P. Lacka. Co. June 6, 2025 Nealon, J.), Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas addressed various Preliminary Objections filed in a nursing home malpractice case.

According to the Opinion, the Plaintiff sustained injuries as a result of a fall.  Thereafter, the Plaintiff, through his daughter pursuant to her Power of Attorney, asserted claims of negligence, breach of contract, and other claims against the facility.

Among other issues, the Defendant facility raised Preliminary Objections asserting that the cause of action filed was required to instead be submitted to binding arbitration pursuant to an arbitration agreement executed by the daughter at the time the father was admitted to the facility.

The court ruled that, since the Power of Attorney that the father provided to his daughter expressly stated that the daughter was not authorized to enter into any arbitration agreement on his behalf with any skilled nursing facility or personal care home, the daughter could not bind her father to any arbitration agreement.

Judge Terrence R. Nealon
Lackawanna County 

Accordingly, Judge Nealon found that there was no enforceable arbitration agreement in place. As such, the Preliminary Objection seeking to have this case transferred to arbitration was overruled.

The court otherwise ruled that certain negligence allegations submitted on behalf of the Plaintiff were not barred by the gist of the action doctrine even though some of the claims presented in this case were based in contract. The court found that the claim for negligent hiring, supervision and retention were collateral to the contract and not contingent on the breach of any terms of the admission agreement.

The court otherwise sustained the demurrer filed against the Plaintiff's claim for intentional infliction of emotional distress given that the Complaint did not allege conduct that was so outrageous in character and extreme in degree as to exceed all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.

Anyone wishing to review a copy of this decision may click this LINK.

Gist of the Action Doctrine Applied to Sustain Preliminary Objections

In the case of Spiritrust Lutheran v. Wagman Constr., Inc., No. 572 MDA 2022 (Pa. Super. April 23, 2024 Stabile, J., Dubow, J. and McCaffery, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court addressed issues surrounding Preliminary Objections raising, in part, the gist of the action doctrine.

With regards the validity of Amended Complaints, the Superior Court reaffirmed that, once an Amended Complaint is filed, the original Complaint becomes a nullity and is considered null and void.

The court also reaffirmed the rule that matters not raised in Preliminary Objections may not be considered by the trial court sua sponte.

With respect to the gist of the action doctrine, the Pennsylvania Superior Court reaffirmed that this doctrine precludes Plaintiff from recasting ordinary breach of contract claims as tort claims. More specifically, the Plaintiff is not permitted to pursue a claim of negligence where the alleged duty breached by the Defendant arises from the parties’ contract.

Here, the court ruled that, since the Plaintiff’s negligence claim repeated as the basis for negligence the same averments alleging a breach of contract, the negligence claims were properly barred by the gist of the action doctrine.

The court also noted that the services allegedly negligently performed by the Defendant were those provided in the parties’ contract.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to a Attorney James M. Beck of the Reed Smith office in Philadelphia for bringing this case to my attention.

Bad Faith Action in Fire Loss Insurance Coverage Case Dismissed

In the case of Mohanan v. Liberty Mut. Pers. Ins. Co., No. 2:22-CV-02956-RBS (E.D. Pa. Nov. 20, 2023 Surrick, J.), the court granted a Defendant insurance company’s Motion to Dismiss the Plaintiffs’ claims of violations of the Pennsylvania Unfair Trade Practices & Consumers Protection Law, negligence, and bad faith relative to coverage questions related to the alleged smoke damage to a property.

The court found that the Plaintiff’s had failed to establish any deceptive conduct on the part of the carrier in terms of the carrier’s investigation and handling of the claim. The court also found that the Plaintiff had failed to produce any evidence of any act or omission by the carrier in terms of any alleged misrepresentations of the coverage available.

The court in this case otherwise ruled that the Plaintiff’s negligence claim was barred by the gist of the action doctrine in this breach of contract case.

The court otherwise found that the Plaintiff had not pled any facts to explain why the carrier’s investigation was unreasonable.

The court additionally rejected the Plaintiff’s claim that the carrier had a special relationship with the Plaintiffs simply by virtue of the fact that the Plaintiffs had purchased an insurance policy. As such, the Plaintiff’s claim of a heightened duty of care owed to the Plaintiff was rejected.

The court additionally noted that the parties had agreed that various references to treble damages, the request for attorneys’ fees, and the request for punitive damages and consequential damages should be stricken from Complaint as improper.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (Dec. 14, 2023).

Trial Court Addresses Issues Regarding Denial of Coverage Under Homeowner's Policy

In the case of Watkins v. State Farm Fire and Casualty Co., No. 10363 of 2020-CA (C.P. Lawr. Co. April 19, 2022 Motto, P.J.), the court granted a Defendant carrier’s Preliminary Objections to a Plaintiff’s claim for negligence and breach of fiduciary duty relative to the sale of a homeowner’s insurance policy that ended up not providing the Plaintiff with coverage for a fire loss.

In its decision, the court found that the Plaintiff’s claim for negligence against his insurance company was barred by the gist of the action doctrine.

The court additionally found that the Plaintiff’s Complaint did not allege sufficient facts to allow the Plaintiff to move forward on a breach of fiduciary duty claim against the carrier in connection with the sale of the insurance policy. The court noted that, by asserting the right to handle all claims against the insured, the insurance company assumed a fiduciary duty and was obligated to act in good faith and with due care towards its insured. However, the court noted that the courts in Pennsylvania did not impose a fiduciary duty upon an insurance company merely for selling a policy of insurance to an insured.

The court found that the Plaintiff’s Complaint did not allege any facts to show that the Defendant insurance company or its agents applied any undue influence over the Plaintiff. As such, the court found no basis to support an allegation of an existence of a fiduciary duty under the facts alleged. As such, the Defendant’s Preliminary Objections were sustained in these respects and the Defendant was ordered to file an answer to the remainder of the Plaintiff’s Complaint.

Anyone wishing to review a copy of this decision may click this LINK.


Source: “Digest of Recent Opinions.” Pennsylvania Law Weekly (May 31, 2022).

Pennsylvania Superior Court Affirms Application of the Gist of the Action Doctrine

In the case of Patel v. Kandola Real Estate, LP, 2021 Pa. Super. 219 (Nov. 8, 2021 Stevens, P.J.E., Bender, P.J.E., Murray, J.) (Op. by Stevens, P.J.E.), the court affirmed the trial court’s entry of summary judgment after finding that the gist of the action doctrine barred the Plaintiff’s tort claims.

The court reiterated that, under the gist of the action doctrine, tort allegations against a party to the contract are barred when the tort claim is based on a breach of the contract. 

Given that, without the contract in this case, there would have been no obligation for the Defendant to have taken any action, the negligence claims were barred under the gist of the action doctrine.

Anyone wishing to review a copy of this decision may click this LINK.


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Defendant's Reliance Upon Gist of the Action Doctrine Rejected

In the case of Weigold v. Ford Motor Company, No. 20-2141 (E.D. Pa. Sept. 1, 2020 Savage, J.), the court rejected an effort on the part of the Defendant to have part of a Plaintiff’s tort claims dismissed under the gist of the action doctrine.

The court ruled that the tort claims used against a vehicle seller for negligence and strict liability surrounding claims of improper installation, inspection, and servicing of the vehicles was electrical system, along with allegations of the sale of a defective vehicle, were found to be claims that rested upon socially based duties imposed upon manufacturers not to sell dangerous or defective products.

As such, the court found that these types of claims were not duplicative of any possible contract claims. Accordingly, the defense's reliance upon the gist of the action doctrine was dismissed.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's Order can be viewed HERE


I send thanks to Attorney James M. Beck of the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

Judge Williamson of Monroe County Addresses Gist of the Action Doctrine

In the case of Artisan and Truckers Cas. Co. v. Travelcenters of America, Inc., No. 9778-CV-2019 (C.P. Monroe Co. Feb. 26, 2020 Williamson, J.), the court overruled a Defendant’s Preliminary Objections based, in part, on the gist the action doctrine.

According to the Opinion, the Plaintiff insurance company had issued a policy to a trucking company who owned a tractor trailer. The tractor trailer had been taken for repairs at a station owned by the Defendant. Later on the same day that the repairs were completed, the truck caught fire.

An allegation was made that the repair facility made improper repairs that caused the fire. In this insurance subrogation action, the Plaintiff insurance company asserted that it was required to pay its insured $200,000.00 under the policy. The carrier filed a Complaint against the Defendant repair facility asserting claims of negligence, breach of contract, breach of express and/or implied warranties, and other claims.

The Defendant filed Preliminary Objections asserting that the negligence count violated the gist of the action doctrine.

Judge Williamson noted that the gist of the action doctrine prevents a Plaintiff from bringing an action for a negligence when the allegations state that the breached duty arose from a contractual relationship. The doctrine prevents Plaintiffs from filing a separate negligence claim arising solely from the contract between the parties, where the duties allegedly breached were created in the contract itself, where liability stems from a contract, or where the tort claim essentially duplicates the breach of contract claim.

After reviewing the record before him, Judge Williamson overruled the Defendant’s Preliminary Objections after finding that the alleged breach of duty went beyond the strict requirements of the gist of the action doctrine. The court noted that, despite there being numerous decisions analyzing the doctrine, “there is no clear cut standard for determining when an action falls” within the doctrine.

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney Dale G. Larrimore from the Philadelphia law firm of Larrimore & Farnish, LLP, for bringing this case to my attention.

Link to Judge Williamson's Gist of the Action Decision

Here is the missing LINK to yesterday's post on Judge David J. Williamson's Monroe County decision on the Gist of the Action Doctrine in the Weiss v. Nazareth Mut. Ins. Co. case.

I apologize for forgetting to add the Link to the original post.

Thanks for reading Tort Talk.

Gist of the Action Doctrine Held to Bar Negligence Claim

In the case of Weiss v. Nazareth Mutual Insurance Company, No. 6293-Civil-2017 (C.P. Monroe Co. July 5, 2018 Williamson, J.), Judge David J. Williamson of the Monroe County Court of Common Pleas granted Preliminary Objections under the gist of the action doctrine in a case arising out of an insurance claim following a fire loss.  

According to the Opinion, the Plaintiff claimed that, following the fire, the Plaintiff’s property was burglarized.   As such, the Plaintiff submitted a claim to the insurance carrier with respect to the personal property that was allegedly stolen.   In his Complaint, the Plaintiff asserted that the carrier had not acted upon his claim for some of the lost personal property.  

The Complaint additionally contained claims against a remediation company who worked on the premises following the fire.   The Plaintiff alleged that the remediation company removed some of the Plaintiff’s property during the remediation project and never returned it to the Plaintiff.   That remediation company filed various Preliminary Objections to the Complaint.  

Judge David J. Williamson
Monroe County

In part, the remediation company asserted that the Plaintiff’s claims of negligence were barred by the gist of the action doctrine.   Judge Williamson agreed, finding that this case was primarily a contract action and that the allegations of the negligence claim were nearly identical to those pled in the contract claim.  As such, the negligence claim was stricken from the Complaint on the basis of the gist of the action doctrine.  

In another notable decision in this Opinion, the court dismissed the Plaintiff’s claim for negligent infliction of emotional distress after finding that the Plaintiff had failed to assert any physical harm as required by the elements of that cause of action. 

Anyone wishing to review a copy of this decision may click this LINK .

Source:  “Digest of Recent Cases.”  Pennsylvania Law Weekly (July 24, 2018).  

Eastern District Federal Court Remands UIM Claim Back to State Court

As also already reported in The Legal Intelligencer in a July 9, 2015 article by Gina Passarella, in a recent July 8, 2015 detailed Order, the Eastern Federal District Court of Pennsylvania remanded a removed Post-Koken case back to Delaware County in the matter of Kennedy v. Allstate, No. 2:15-CV-02221-TON (E.D.Pa. July 8, 2015 O'Neill, J.).

The Plaintiff originally filed in Delaware County in this UIM claim and asserted UTPCPL claims and negligence claims against Allstate as a company as well as several Pennsylvania resident claims adjusters for Allstate.

Allstate removed the matter to federal court, asserting a fraudulent joinder and the lack of any colorable claims under Pennsylvania law.

There was no dispute that Allstate was an Illinois resident and that the three adjuster Defendants and the Plaintiff were Pennsylvania residents.  There was also no dispute that the amount in controversy element was satisfied.

After reviewing the applicable law on the issues raised, and after finding that the Plaintiff had stated colorable claims against the non-diverse claims adjuster defendants, the court remanded the case back to state court in Delaware County.

The court so ruled despite noting a lack of concrete Pennsylvania state law recognizing the validity of a negligence claim against a claims adjuster by an insured relative to the handling of the insured's claims (i.e., is there a duty of care owed by an adjuster to an insured?). 

The court in Kennedy believed that, since there was a "possibility" that the Pennsylvania Supreme Court could someday rule that a claims adjuster owes a duty to an insured and therefore could be the subject of a negligence cause of action, the defendants in this matter had failed to meet their heavy burden under the law of attempting to show that there was no colorable claim and/or a fraudulent joinder of claims in an effort to defeat the diversity of citizenship necessary for federal court jurisdiction.

The court in Kennedy went to great lengths to clearly state that it was not recognizing such a negligence cause of action against claims representatives.  Rather, the court was more simply noting that, since Pennsylvania law in this regard was unsettled, it could not rule that the Plaintiff had failed to state a colorable claim under the motion to remand standard of review.

The court also addressed gist of the action and statute of limitations issues relative to the negligence claim in a manner that favored the Plaintiff's position.

The Plaintiff's UTPCPL claims were also found by the court to be colorable claims that equally served to support the granting of the motion to remand.


Anyone wishing to review a copy of this Kennedy v. Allstate decision may contact me at dancummins@comcast.net.


I send thanks to the prevailing Plaintiff's Attorney Ryan Curran of the Curran Firm in Media, PA for bringing this case to my attention.

Judge Conaboy Circumscribes Proper Bad Faith Claims in UM Context

In his recent decision in the case of Cicon v. State Farm Mutual Automobile Insurance Company, No. 3:14-cv-2187 (M.D. Pa. March 4, 2015 Conaboy, J.), Federal Middle Court Judge Richard P. Conaboy, considered Defendant State Farm’s Motion to Dismiss four counts of a Post-Koken Complaint filed by the Plaintiff, including Bad Faith claims.  

More specifically, State Farm sought a dismissal of a Count of Breach of the Duty of Good Faith and Fair Dealing, a Count for Breach of Contract, a Count of Negligence, and a Count of Vicarious Liability, all asserted against the Uninsured Motorist (UM) Benefits carrier. 

According to the Opinion, this matter arose out of personal injuries allegedly sustained as a result of a motor vehicle accident involving an uninsured vehicle.   Following the accident, the Plaintiff submitted a claim for uninsured motorist benefits.  

Prior to retaining any attorney, the Plaintiff attended an independent medical examination at the request of the carrier and, thereafter, attempted to settle the claim for a period of seven (7) months.  When the settlement discussions failed to be successful, the Plaintiff retained counsel.  

Plaintiffs’ retained counsel made a demand of the $100,000.00 UM limits, and supplied State Farm with additional documentation in support of the claims presented.  Defendant, State Farm responded with a $30,000.00 offer.  

The Plaintiff proceeded to file suit alleging that the offer presented by State Farm was unreasonable and inconsistent with the documentation provided by the Plaintiff in terms of medical treatment and wage loss information.  

With respect to the Defendant’s motion for the dismissal of the Plaintiff’s allegations of a violation of a contractual duty to observe the covenant of good faith and fair dealing, the court noted that the Pennsylvania Supreme Court has held that “there is no cause of action for a breach of the implied duty of good faith and fair dealing in a case for first party insurance benefits, like this one, where an insured is suing his insurer."    See Cicon at p. 5-6 citing D’Ambrosio v. Pennsylvania National Mutual Casualty Insurance Company, 494 Pa. 501, 507-10 (1981).   As such, this claim was dismissed by the court. 

Judge Richard P. Conaboy
Federal Middle District
of Pennsylvania

Judge Conaboy allowed the Plaintiff’s Count for Breach of Contract to stand and rejected the defense argument that that Count should be dismissed as being redundant of the claims alleged Counts 1 and 2 in the Complaint for UM benefits and loss of consortium claims, respectively.   Although the court noted that it was inclined to agree that the damages recoverable under all of these claims were seemingly identical and “necessarily limited by the terms of the policy,” the court noted that the claims presented in these three counts were technically separate such that the Breach of Contract claim would be allowed to proceed.  

Judge Conaboy went on to dismiss Count 6 of the Complaint which sounded in Negligence and was based upon an allegation that the Defendant, State Farm, owed a duty of care to the Plaintiff, failed to discharge that duty, and was allegedly therefore liable in tort.  

In this regard, the court accepted the defense argument that the “gist of the action” doctrine operated to preclude the Plaintiffs’ negligence count as an improper attempt to characterize an ordinary breach of contract claim as a tort action.   The court ruled in this fashion despite recognizing the Plaintiffs’ argument that the Supreme Court of Pennsylvania have never adopted the gist of the action doctrine in an insurance coverage dispute context. 

However, Judge Conaboy felt that, after his review of the Superior Court case law, that the Pennsylvania Supreme Court would rule that the Plaintiff’s negligence count should be barred by the gist of the actions doctrine under the circumstances presented if that Court was ever faced with the issue. 

Judge Conaboy also agreed that the Plaintiffs’ allegations of vicarious liability on the part of the Defendant State Farm, based upon the alleged negligent and intentional misconduct of its adjusters, supervisors, and defense counsel, should be dismissed.  

In so ruling, the court noted that the only party in this case was the Defendant and that, as such, the party Defendant could not be vicariously liable for its own conduct.   Judge Conaboy additionally noted that vicarious liability is a creature of tort law, which caused him to reiterate his finding that the gist of the action doctrine required that this case be determined under contract law concepts and not tort law principles.

Overall, the court granted the Defendant’s Motion to Dismiss in part and denied it in part.

Judge Conaboy’s Opinion can be read as supporting an argument by a Defendant carrier that the sole cause of action in a first party case for an alleged breach of good faith is pursuant to 42 Pa. C.S. §8371.  This decision also arguably stands for the proposition that there is no common law cause of action for a breach of the duty of good faith and fair dealing, with its attendant consequential damages, in a first party case.  

 

I send thanks to the prevailing defense counsel, Attorney Lee Ullman of the Reading, Pennsylvania office of Forry Ullman, for providing me with a copy of this Opinion.

 

Anyone desiring a copy of this Opinion may contact me at dancummins@comcast.net.

The Pennsylvania Supreme Court Analyzes the Gist of the Action Doctrine and The Certificate of Merit Rules

In a wordy December 15, 2014 decision in the homeowner's insurance contract dispute case of Bruno v. Erie Insurance, No. 25 WAP 2013 (Pa. Dec. 15, 2014)(Op. by Todd, J.) (Concurring Op. by Eakin, J.), the Pennsylvania Supreme Court offered its latest detailed analysis of the "gist of the action" Doctrine, as well as the scope of the Certificate of Merit rules in professional negligence claims.

This matter involved a contractual dispute between insureds and their homeowner's carrier over the alleged existence of mold in the insured's home and how to remedy the same. The insureds attempted to include in their suit a negligence claim against the engineer retained by the carrier to evaluate the alleged mold condition.

The homeowner's insurance carrier Defendant filed preliminary objections asserting that the gist of the action doctrine barred the Plaintiff's pursuit of a negligence claim arising out of the same allegations as involved in the breach of contract action.

The engineering expert filed preliminary objections asserting that the claim against him was barred due to the Plaintiff's failure to secure a Certificate of Merit to support the negligence claim against that professional defendant.

After extensively reviewing essentially the entire history of the doctrine, the Supreme Court ruled that the negligence action asserted in this matter against the homeowner's carrier based upon the alleged misdeeds and/or omissions of the carrier's adjuster or its retained engineering expert was not barred by the "gist of the action" doctrine.  The court found that that the allegations of negligence on the part of a person or persons performing the duties under, or in furtherance of, the contract are, as a matter of law, not to be viewed as a cause of action based upon the underlying contract since such claims are not founded upon the breach of any of the specific promises that make up the contract, but rather the negligent acts or omissions of an agent of the homeowner's carrier.  See Maj. Op. at p. 35, 36-37.

In other words, while the homeowner's carrier had contractual duties to properly investigate whether mold existed, and to pay for property damage caused by the mold, the focus of the allegations by the insured was not that the carrier failed in meeting these contractual obligations, but rather, that, in the course of attempting to fulfill these obligations, representatives of the carrier (the adjuster and the expert retained by the carrier) acted negligently in their dealings with the insureds.  As such, the Plaintiff's were alleging a breach of a social duty in this regard as opposed to any breach of the contract terms.

Accordingly, the court found that the Plaintiff's negligence claims against the carrier were not barred by the "gist of the action" doctrine.

The Court also addressed the issue of whether the insureds were required to secure a Certificate of Merit under Pa.R.C.P. 1042.1 and 1042.3 in order to be able to proceed on their negligence claim against the engineer retained by the carrier to inspect the mold conditions. 

After studying the wording of the Rules, the Pennsylvania Supreme Court ruled that the insureds were not required to obtain a Certificate of Merit in order to proceed with their negligence suit against the engineer, since they were not patients or clients of the engineering company which employed that expert.  Stated otherwise, as the Plaintiffs were not the party who retained the expert, they were not required by the applicable Rules to secure a Certificate of Merit relative to their pursuit of a negligence claim against the engineer.

Overall, the Supreme Court reversed the Superior Court and remanded for further proceedings.

Anyone wishing to review the Pennsylvania Supreme Court's majority Opinion decision in the Bruno v. Erie Insurance case may click this LINK.

The Concurring Opinion by Justice Eakin, joined in by Chief Justice Castille, can be viewed HERE.  Justice Eakin and Chief Justice Castille agreed with the majority Opinion but cautioned that the "broad pronouncement" in the majority Opinion suggesting that finding negligent actions by a contracting party do not arise out of the contract does not fully comport with the gist of the action Doctrine and may represent a painting of the issue with too broad a brush.

 

I send thanks to Attorney Andrew L. Braunfeld of the Conshohocken law firm of Masterson Braunfeld LLP for bringing this case to my attention.