A few years ago, I wrote an article discussing Pennsylvania’s “gist of the action” doctrine. The “gist of the action” doctrine, simply put, is the principle that, if the facts of a claim establish that the duty breached is one solely created by a contract, and not a duty that a party would have otherwise been obligated to fulfill but for the existence of the contract, then the claim is one for breach of contract. If, however, the facts show that the claim involves a violation of “a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract,” then it must be regarded as a tort.” Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014), citing Zell v. Arnold, 1830 WL 3261 (Pa. 1830).
There are two recent opinions from the Superior Court of Pennsylvania that may change how the doctrine is applied in Pennsylvania. Swatt v. Nottingham Village, 342 A.3d 23 (Pa. Super. 2025), and Poteat v. Asteak, — A.3d — (Pa. Super. 2025)[1], are both well-written and informative decisions, each accompanied by thoughtful dissenting opinions. If you are a legal nerd like me who would enjoy reading opinions that discuss legal history dating back to Medieval England, I highly recommend reading the opinions and dissents. The historical context shows that plaintiffs’ attorneys have always had to fight for justice and overcome hurdles.
The most notable change, which undoubtedly will be the subject of future opinions, is the concept that a breach of the implied duty to perform contractual services in a manner consistent with the applicable standard of care can result in both a negligence claim and a breach of contract claim even if there is no specific contractual provision alleged to have been breached. Further, the Court states:
Courts should keep in mind that there are instances when a single gist of the action (one unlawful act) breaches both a general duty of care, as well as expressed or implied contractual duty. While double recovery for the same unlawful act is generally prohibited, multiple claims can proceed to trial, if timely filed.
Swatt, 342 A.3d at 52.
Regardless of the holdings of these opinions, defendants will undoubtedly continue to attempt to use (misuse) the “gist of the action” doctrine to attempt to limit or dismiss a plaintiff’s valid causes of action and/or claims for damages. Since these opinions are Superior Court opinions and include dissents, the fight about the “gist of the action” is not over. Therefore, when drafting a Complaint arising from an act that is both a breach of a contractual duty and a breach of a common law duty, you should:
- still plead separate causes of action for negligence and breach of contract;
- be mindful of the statute of limitations for each cause of action;
- be prepared to defeat Preliminary Objections; and
- be prepared not to solely rely on an implied duty to support a breach of contract claim.
Generally speaking, the Superior Court of Pennsylvania has held that the “gist of the action” doctrine is not valid. However, it may be prudent for plaintiffs’ attorneys to draft Complaints that withstand scrutiny and Preliminary Objections, as challenges based on the “gist of the action” will not go away anytime soon.
[1] These opinions came to my attention via Daniel E. Cummins, Esq., Tort Talk www.torttalk.com (accessed December 20, 2025). Mr. Cummins provides an excellent summary of the opinions as well as many other opinions relevant to Pennsylvania practitioners.