Swatt, A. v. Nottingham Village

J-E04002-24 2025 PA Super 138

ANN MARIE SWATT, PERSONAL : IN THE SUPERIOR COURT OF

REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA

MADLYN BLUSIUS :

:

Appellant :

:

v. :

:

NOTTINGHAM VILLAGE; :

NOTTINGHAM MANAGEMENT, LLC; :

NOTTINGHAM VILLAGE RETIREMENT :

CENTER, LLC; NOTTINGHAM VILLAGE :

HEALTHCARE SERVICES, INC.; :

LEEDS HEALTHCARE SERVICES, :

INC.; SYNERGY GRANDVIEW :

PHARMACY, LLC; AND FREDERICK :

KESSLER : No. 1506 MDA 2021

Appeal from the Order Entered October 12, 2021

In the Court of Common Pleas of Northumberland County Civil Division at

No(s): CV-2014-00830

JANICE HAWBAKER, ESQ., : IN THE SUPERIOR COURT OF

EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA

MADLYN BLUSIUS :

:

v. :

:

NOTTINGHAM VILLAGE; :

NOTTINGHAM MANAGEMENT, LLC; :

NOTTINGHAM VILLAGE RETIREMENT :

CENTER, LLC; NOTTINGHAM VILLAGE :

HEALTHCARE SERVICES, INC.; AND :

LEEDS HEALTHCARE SERVICES, INC. :

:

APPEAL OF: ANN MARIE SWATT, :

PERSONAL REPRESENTATIVE OF THE :

ESTATE OF MADLYN BLUSIUS : No. 1507 MDA 2021

Appeal from the Order Dated October 12, 2021

In the Court of Common Pleas of Northumberland County Civil Division at

No(s): CV-2014-00005

J-E04002-24

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J.,

KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.

OPINION BY KUNSELMAN, J.: FILED: JULY 2, 2025

I. Introduction

In this survival action, Ann Marie Swatt, as Personal Representative of

her Aunt Madlyn Blusius’ Estate, appeals from the order granting summary

judgment in favor of the Defendants on her claims for malpractice and breach

of contract. We granted en banc review in this case and Poteat v. Asteak,

729 EDA 2023, 2024 WL 2813104 (Pa. Super. 2024), to determine whether

the gist-of-the-action doctrine allows trial courts to convert contract claims

into tort claims. See Superior Court Order, 7/2/24, at 2. As we explain, it

does not. Thus, we partially reverse the grant of summary judgment.

II. Factual Background

In 2006, Madlyn1 resided in an assisted-living center. She was “in really

good shape.” Deposition of Ann Marie Swatt, 7/24/19, at 45. Unfortunately,

Madlyn fell, fractured her hip, injured her right knee, and had to undergo

reconstructive surgery.

Thereafter, on July 20, 2006, Madlyn’s sister, Elizabeth Swatt, moved

Madlyn into a nursing-care facility in Northumberland County. Leeds Health

Care Services, Inc. owned and ran the nursing home, known as Nottingham

Village. Madlyn’s admission was “for rehabilitation, to learn how to walk again

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1 We refer to Elizabeth Swatt, Ann Marie Swatt, and Madlyn Blusius by their

first names; we refer to Elizabeth and Ann Marie collectively as “the Swatts.”

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after a hip fall,” and to heal her knee. Id. at 21. Elizabeth, signing as the

“Responsible Party” for Madlyn, executed a written contract with the Nursing

Home, the “Nottingham Village Nursing Center, Admission Agreement:

Nursing Care.” Ann Marie’s Opposition to Nursing Home’s Motion for Summary

Judgment, Ex. A (“Contract”).2

Under the Contract, the Nursing Home agreed to give a “room, meals,

housekeeping services, use of walker or wheelchair when medically necessary,

nursing care, linen and bedding, and such other personal services as may be

required for the health, safety, welfare, good grooming and well-being of”

Madlyn. Id. Madlyn’s rights as the resident were “primarily for services, with

a contractual right of occupancy.” Id.

The Swatts visited Madlyn several times a month during the five-and-

half years that Madlyn lived there. Deposition of Ann Marie Swatt, 7/24/19,

at 16-17. Madlyn often complained to them that she disliked the Nursing

Home and wanted to return to the assisted-living center, because “the people

were nasty, and they didn’t care for her.” Id. at 130.

In her deposition, Ann Marie identified several deficiencies in Madlyn’s

care. These problems included an absence of orderlies and nurses during the

Swatts’ visits, a failure by the Nursing Home to feed and provide water to

____________________________________________

2 The contract of record is unpaginated, and Ann Marie omitted at least one

page of it from Exhibit A. The bottom of the third page ends in the middle of

Section 11, and the next page begins in the middle of subsection 12(d).

Hence, the contract’s page numbers after the missing page or pages are

unknown. Therefore, we will not provide page citations for this document.

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Madlyn, damage to Madlyn’s teeth and gums, the appearance of new bruises

and sores, failure to address pain in Madlyn’s knee, lack of improvement or

rehabilitation, soiled bed linens, and overmedication. Ann Marie complained

and asked to speak with a nurse, but no one called her back.

These incidents occurred “a little bit at a time” while Madlyn resided in

the Nursing Home. Id. at 49-50. Because of the Nursing Home’s inaction and

negligence, Madlyn “suffered dearly” and had “out of control” pain. Id. at 75.

This caused “loss of her ability to be able to perform activities of daily living,

loss of her ability to walk, and her death.” Id. at 105. On January 5, 2012,

Madlyn’s kidneys failed, and she died in the Nursing Home, at the age of 91.

See id. at 41, 76.

III. Procedural History

These consolidated appeals, concerning Madlyn’s death, have a lengthy

and convoluted procedural history. In fact, multiple plaintiffs attempted to

sue the Nursing Home and its Pharmacy, and they received three different

docket numbers from the Prothonotary of Northumberland County. One of

those cases was dismissed at preliminary objections, and it is not a subject of

this appeal.3

The first of the other two dockets began when the Executrix of Madlyn’s

Will, Janice M. Hawbaker, Esq., filed a praecipe for writ of summons. Seven

____________________________________________

3 See Elizabeth Jane Swatt & Ann Marie Swatt v. Nottingham Village,

CV-2014-25 (C.C.P. Northumberland) (dismissing complaint with prejudice

upon preliminary objections, because the Swatts were not Madlyn’s immediate

family members; therefore, they lacked capacity to sue for wrongful death).

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weeks after Madlyn’s death, Attorney Hawbaker raised an Estate for Madlyn

in Franklin County and received letters testamentary. See In re Estate of

Blusius, Register of Wills’ 3/21/12 Short Certificate, 2012-0054 (C.C.P.

Franklin 2012). As Executrix, Attorney Hawbaker hired J. McDowell Sharpe,

Esq. to sue the Nursing Home.

Nearly two years after Madlyn’s death, on January 2, 2014, Attorney

Sharpe filed a praecipe for the prothonotary to issue a writ of summons to the

Nursing Home. He named Attorney Hawbaker, as “Executrix of the Estate of

Madlyn Blusius,” as the plaintiff. Hawbaker v. Nottingham Village,

Praecipe for Summons at 1, CV-2014-5 (C.C.P. Northumberland 2014).4 On

March 21, 2014, the Nursing Home had the prothonotary issue a rule for

Attorney Hawbaker to file a complaint.

While that rule was pending, a dispute arose in the Orphans’ Court of

Franklin County between Attorney Hawbaker and the Swatts over who should

administer Madlyn’s estate. The orphans’ court ruled that Attorney Hawbaker

had a “conflicting interest or . . . situation where [her] functioning as a

fiduciary for a temporary period may not be in the best interests of the estate”

to pursue the Northumberland County litigation. 20 Pa.C.S.A. § 4301.

____________________________________________

4 The praecipe also named as Defendants the Nursing Home’s corporate

entities: Nottingham Village; Nottingham Village, Inc.; Nottingham Village

Retirement Center; Nottingham Village Retirement Center, LLC; Nottingham

Village Retirement Center Associates; Nottingham Health Care Services, Inc.;

and Leeds Health Care Services, Inc.

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The orphans’ court appointed Elizabeth “as Administratrix pro tem of the

Estate of Madlyn M. Blusius for the sole purpose of pursuing any . . . causes

of action against [the Nursing Home] or skilled-care providers who provided

services to [Madlyn] between January 1, 2004 to the date of her death.”

Estate of Blusius, Orphans’ Court Order, 4/11/14, at 1, 46-OC-2013 (C.C.P.

Franklin 2014). However, the court allowed Attorney Hawbaker to remain as

Executrix of the Estate and directed her to cooperate with Elizabeth “in her

capacity as Administratrix pro tem.” Id. The court permitted Elizabeth to

enter a contingent-fee agreement with new counsel, Mary C. Kilgus, Esq., and

to retain any proceeds from the Nursing Home lawsuit, after paying the

inheritance taxes back to the estate. Finally, the Orphans’ Court of Franklin

County ordered Elizabeth to provide a copy of its order “to the Prothonotary

of Northumberland County with a directive to the prothonotary to docket the

order at CV-2014-005.” Id. at 3.

Four days later, on April 15, 2014, counsel for Attorney Hawbaker filed

a Motion to Enlarge Time to File Complaint in Northumberland County. The

motion explained, “Estate proceedings have been contentious and . . . the

Orphans’ Court of [Franklin County] held a status conference, at which an

Administratrix pro tem was appointed to represent the estate in this matter.”

Hawbaker, Motion to Enlarge Time to File Complaint at 2. Attorney Hawbaker

requested more time “to allow for the appointment of Administratrix pro tem

and for her to engage counsel to file a complaint.” Id. Furthermore, “counsel

for the defendants graciously concurred in this request.” Id.

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The motions judge in Northumberland County signed the proposed order

accompanying the motion. The order stated, “Plaintiff Janice M. Hawbaker,

Executrix of the Estate of Madlyn M. Blusius . . . has until May 14, 2014 to file

a complaint in this matter.” T.C.O., 4/16/14, at 1 (emphasis added).

The following week, on April 22, 2014, Attorney Kilgus, Elizabeth’s new

attorney, had her paralegal file the Franklin County order at the

Northumberland County Hawbaker docket. However, Attorney Kilgus did not

enter her appearance or substitute Elizabeth as plaintiff in Hawbaker.

Instead, a few weeks later, on May 13, 2014, Attorney Kilgus filed a

complaint without a docket number. Additionally, the complaint’s caption

made no mention of Madlyn’s estate or Elizabeth’s role as Administratrix pro

tem. The filing also added two new defendants, Synergy Health Systems and

Frederick Kessler (the Nursing Home’s Executive Director).

Attorney Kilgus captioned the complaint as follows:

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ELIZABETH JANE SWATT : IN THE COURT OF COMMON

PLAINTIFF : PLEAS OF NORTHUMBERLAND

: COUNTY, PENNSYLVANIA

:

vs. : NO.

:

NOTTINGHAM VILLAGE, :

NOTTINGHAM VILLAGE, INC., : CIVIL ACTION – LAW

NOTTINGHAM VILLAGE :

RETIREMENT CENTER, LLC, :

NOTTINGHAM VILLAGE : MEDICAL MALPRACTICE

HEALTHCARE SERVICES, INC.:

LEEDS HEALTHCARE :

SERVICES, INC., SYNERGY :

HEALTH SYSTEMS, And :

FREDERICK KESSLER, :

DEFENDANTS :

Swatt v. Nottingham Village, Complaint at 1. Thus, the complaint identified

Elizabeth as Plaintiff, in her personal capacity, and the prothonotary wrote

a new docket number on the complaint: i.e., “CV-2014-830.”

Attorney Kilgus paid the filing fee for a new action and had the Sheriff

of Northumberland County serve the complaint on the Nursing Home and

Frederick Kessler. The sheriff also attempted, but failed, to serve it on

Synergy Health Systems.

Thereafter, on May 29, 2014, in Hawbaker, the Nursing Home filed a

praecipe for a judgment of non pros against Attorney Hawbaker for failing to

file a complaint. The Nursing Home’s lawyer attached a certificate of service,

indicating that he had sent a copy of the praecipe to Attorney Sharpe, because

Attorney Sharpe never withdrew his appearance as counsel of record in that

action.

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However, once the prothonotary entered the judgment of non pros, the

prothonotary never served the judgment on Attorney Hawbaker or her

counsel. See Ann Marie’s Notice of Appeal in Hawbaker, CV-2014-5, Ex. C

at 2. There was no entry in the “Service Information” column of the docket

sheet, and the “Comment” column did not reference the fact or the date of

service of the judgment of non pros upon anyone. In the “Comment” for the

entry of judgment, the prothonotary only wrote, “Dated: 5/30/2014 Amount:

$17.00 (cash) For: Nottingham Village (Defendant).” Id.

Next, the Nursing Home filed preliminary objections to the complaint in

Swatt. On June 30, 2014, Attorney Kilgus filed an Amended Complaint on

behalf of Elizabeth and replaced Elizabeth (in her personal capacity) as Plaintiff

with “Elizabeth Jane Swatt, Personal Representative for the Estate of Madlyn

Blusius, Deceased.” See Amended Complaint at 1. The Amended Complaint

also named “Synergy Grandview Pharmacy, LLC” as a defendant, in place of

“Synergy Health Systems.” Id. Additionally, Attorney Kilgus filed a document

to withdraw the appearance of Attorney Sharpe in the Swatt matter, even

though Attorney Sharpe was never counsel of record in that action.5

There were several more rounds of pleadings that resulted in Elizabeth

filing the operative complaint in Swatt. According to the operative complaint,

Elizabeth brought “a medical-malpractice action, a survival action, and a

____________________________________________

5 In fact, Attorney Sharpe remains counsel of record for Janice Hawbaker, as

Executrix of the Estate of Madlyn Blusius, the named plaintiff in Hawbaker v.

Nottingham Village, CV-2014-5 (C.C.P. Northumberland).

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breach-of-contract action involving the avoidable death of Madlyn . . . .” Third

Amended Complaint at 1. Elizabeth raised multiple counts in tort and contract.

The Pharmacy filed preliminary objections, which the trial court partially

granted. The court dismissed Elizabeth’s contract claim against the Pharmacy,

because it ruled that she could not bring such a claim under the gist-of-the-

action doctrine. See Trial Court Order, 5/14/15, at 1-2.

Then, the Pharmacy sought judgment on the pleadings. It argued that

the two-year statute of limitations barred Elizabeth’s malpractice claim.

Before the trial court disposed of that motion, on September 9, 2015,

Attorney Kilgus withdrew as counsel for Elizabeth. The court stayed the action

while Elizabeth searched for a new lawyer. On November 23, 2015, Matthew

A. Thomsen, Esq. entered his appearance for Elizabeth.

Following briefing and oral argument, on April 8, 2016, the trial court

granted the Pharmacy’s motion for judgment on the pleadings. It ruled that

Eizabeth sued the Pharmacy on May 13, 2014, more than two years after

Madlyn’s death. Six weeks later, Elizabeth moved for reconsideration or, in

the alternative, for a determination of finality. The trial court never ruled upon

that motion.

Five years of discovery ensued, and Elizabeth changed attorneys three

times. Also, due to Elizabeth’s increasing age and declining health, the

Orphans’ Court of Franklin County in Estate of Blusius replaced Elizabeth as

Administratrix pro tem with her daughter, Ann Marie. Thereafter, on February

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24, 2020, Ann Marie, as Personal Representative of the Estate of Madlyn

Blusius, substituted as the Plaintiff in Swatt.

On June 23, 2020, the Nursing Home moved for summary judgment in

Swatt. It contended Ann Marie “failed to satisfy the elements of [her] causes

of action, but has brought survival claims that are barred by the applicable

statute of limitations, and has brought a contract action in an attempt to

shoehorn [Ann Marie’s] time-barred negligence cause of action into a breach-

of-contract claim.” Motion for Summary Judgment at 5.

Ann Marie filed a response opposing the motion and attached six exhibits

as her evidence. These included her deposition and the Contract with the

Nursing Home. Ann Marie simultaneously filed a motion to correct the filing

date in Swatt, nunc pro tunc. She sought to relate the complaint in Swatt

back to January 2, 2014, the filing date of the Praecipe for Writ of Summons

in Hawbaker.

Another year passed, and, on September 30, 2021, Timothy Grant

Wojton, Esq. entered his appearance for Ann Marie. Two weeks later, the trial

court issued an Opinion and Order granting summary judgment to the Nursing

Home. It held that the two-year statute of limitations for tort claims barred

Ann Marie’s counts for malpractice. The court also ruled that the gist-of-the-

action doctrine prevented her from suing for breach of contract. See Trial

Court Opinion, 10/12/21, at 3-5.

Ann Marie timely appealed from the order granting summary judgment

in Swatt. In addition, Ann Marie filed a notice of appeal in Hawbaker from

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the summary-judgment order in Swatt, even though no one had moved for

summary judgment in Hawbaker.6

Upon review of Ann Marie’s docketing statement and notice of appeal

filed in Hawbaker, this Court issued her a rule to show cause why we should

not quash the appeal in Hawbaker, 1507 MDA 2021. We observed that Ann

Marie’s notice of appeal stated that she appealed from the order granting

summary judgment entered in Swatt, but that order was not entered on the

docket of Hawbaker. Our order suggested that the appeal in Hawbaker

could not lie from the summary-judgment order entered on the Swatt docket.

Additionally, this Court indicated that the last entry in Hawbaker was

the entry of judgment of non pros and that no one had petitioned to open or

strike that judgment. We said, “Any appeal related to a judgment of non pros

lies not from the judgment itself, but from the denial of a petition to open or

strike.” Show Cause Order, 3/17/22, at 1 (quoting Bartolomeo v. Marshall,

69 A.3d 610, 613-14 (Pa. Super. 2013); citing Pa.R.Civ.P. 3051, Comment).

Ann Marie replied to the rule and argued for the continued viability of

her appeal in Hawbaker, docketed at 1507 MDA 2021, or, alternatively, to

have it consolidated with her appeal in Swatt, docketed at 1506 MDA 2021.

____________________________________________

6 When Ann Marie filed her notice of appeal in Hawbaker, supra, she

attempted to change the caption of the named plaintiff to herself, without

moving to substitute herself in that role. We have restored the caption in that

appeal to its original (and current) plaintiff. Although Attorney Kilgus filed the

order from Franklin County with the Prothonotary of Northumberland County,

nothing in that order directed substitution of Elizabeth for Attorney Hawbaker.

While Ann Marie moved to substitute herself in Swatt, she did not do so in

Hawbaker.

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She contended that Swatt and the other matter that the Swatts jointly

commenced on January 6, 2012 (which the trial court dismissed at preliminary

objections) were continuations of Hawbaker. Ann Marie claimed that the

Prothonotary of Northumberland County erroneously severed them into three

separate lawsuits by assigning each filing its own docket number. In her view,

all three lawsuits were one action by the Estate of Madlyn Blusius.

This Court withdrew its rule to show cause and deferred the question of

appellate jurisdiction to the merits panel. We also consolidated the appeals

in Swatt and Hawbaker.

Regarding Swatt, a panel of this Court, composed of President Judge

Lazarus, Judge Bowes, and former-Justice Stevens, unanimously affirmed the

trial court’s grant of summary judgment on the malpractice claims, but it

reversed as to the contract claims. Also, regarding Hawbaker, a majority of

the panel, i.e., President Judge Lazarus and former-Justice Stevens, quashed

Elizabeth’s appeal as untimely. However, Judge Bowes wrote separately to

explain that, in her opinion, the Hawbaker appeal should be quashed as

premature.

Ann Marie petitioned for rehearing before this Court en banc, which we

granted and withdrew the panel decisions.

IV. Analysis

Ann Marie raises three appellate issues which we have reordered for

ease of disposition as follows:

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1. Did the trial court err or abuse its discretion in dismissing

[the] Pharmacy from the suit due to . . . the statute of

limitations . . . ?

2. Did the trial court err or abuse its discretion in ruling that

[Ann Marie’s] survival action [against the Nursing Home]

was time barred under the statute of limitations . . . ?

3. Did the trial court err or abuse its discretion when it ruled

that the gist-of-the-action doctrine bars [Ann Marie’s]

breach-of-contract claim . . . ?

Ann Marie’s Substituted Brief at 4. Before addressing those claims, first we

consider our appellate jurisdiction over Hawbaker, 1507 MDA 2021.

A. Appellate Jurisdiction over Hawbaker Case

As this Court observed in its show-cause order, Ann Marie purports to

appeal the Hawbaker case from an order that the trial court did not enter on

the Hawbaker docket. Thus, she seeks to lift Hawbaker up to this Court by

the boot straps of Swatt. We ask whether this is jurisdictionally permissible,

given that the trial court did not enter an appealable order in Hawbaker.

The “appealability of an order goes to the appellate court’s jurisdiction.”

Williams v. Williams, 385 A.2d 422, 423 (Pa. Super. 1978) (en banc). “The

question of an appellate court’s jurisdiction to consider any particular case

may properly be raised sua sponte.” Commonwealth v. Giffin, 595 A.2d

101, 103 (Pa. Super. 1991). This presents “a question of law; the appellate

standard of review is de novo, and the scope of review is plenary.” Crespo

v. Hughes, 292 A.3d 612, 615 (Pa. Super. 2023).

An order does not become “appealable until it has been entered upon

the appropriate docket in the trial court.” Pa.R.A.P. 301(a)(1) (emphasis

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added). Here, the order granting summary judgment to the Nursing Home in

Swatt was entered upon the appropriate docket in the trial court – i.e., the

Swatt docket, CV-2014-830. At that moment, it became an appealable order

in that case.

However, the trial court never entered the summary-judgment order on

the Hawbaker docket, CV-2014-5.7 Nor should it have done so, because the

parties in Swatt differ from the parties in Hawbaker, and a complaint was

never filed in Hawbaker. Further, the Nursing Home did not file a motion for

summary judgment in Hawbaker.

Regarding the differing parties, no one substituted Elizabeth or Ann

Marie as the named Plaintiff in Hawbaker. Thus, Attorney Hawbaker remains

plaintiff of record in Hawbaker. Ann Marie remains a stranger to that action.

Accordingly, she lacks standing to appeal Hawbaker to this Court. Further,

because there is no appealable order in Hawbaker, we have no appellate

jurisdiction over that case.

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7 Moreover, even if the trial court had entered its order granting summary

judgment on the Hawbaker docket, we would still lack appellate jurisdiction

over Hawbaker. Generally speaking, “an appeal may be taken as of right

from any final order of a . . . trial court.” Pa.R.A.P. 341(a). A final order is

one that “disposes of all claims and of all parties . . . .” Pa.R.A.P. 341(b).

The summary-judgment order disposed of all claims by Elizabeth against

the Nursing Home, but it disposed of none of the claims of Attorney Hawbaker

against anyone. So, the order granting summary judgment would not meet

the definition of a final order even if filed on the Hawbaker docket. At that

docket number, the order would dispose of no claims and no parties. Without

a final order we would have no jurisdiction over Hawbaker regardless.

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Importantly, the prothonotary’s entry of judgment of non pros for failure

to file a complaint does not alter our finding that no final order exists in

Hawbaker. As mentioned, Hawbaker’s docket entries reveal that the

prothonotary never served notice of the entry of judgment of non pros on

Attorney Hawbaker or her counsel, Attorney Sharpe.

Under Pennsylvania Rules of Civil Procedure 108, an order is officially

entered on “the day on which the clerk makes the notation in the docket that

notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).”

Pa.R.A.P. 108(b). Rule 236 imposes mandatory duties on the prothonotary in

entering judgments. “The prothonotary shall immediately give written notice

of the entry of . . . . any . . . order or judgment to each party’s attorney of

record or, if unrepresented, to each party. The notice shall include a copy of

the order or judgment.” Pa.R.C.P. 236(a)(2) (emphasis added). In addition,

the “prothonotary shall note in the docket the giving of the notice and, when

a judgment by confession is entered, the mailing of the required notice and

documents.” Pa.R.C.P. 236(b) (emphasis added).

If the prothonotary violates Rule 236, the judgment is not officially

entered.8 See, e.g., Mumma v. Boswell, Tintner, Piccola & Wickersham,

937 A.2d 459, 464 (Pa. Super. 2007) (holding that the trial court erred in

refusing to strike non pros judgments that were not properly entered because,

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8 We note that Ann Marie made a similar argument regarding the non-service

of the judgment of non pros when responding to the Nursing Home’s motion

for summary judgment in Swatt. See Ann Marie’s Response to Nursing

Home’s Surresponse for Summary Judgment . . . at 9-10.

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the docket entries demonstrated “that the prothonotary did not provide [the

plaintiff] with written notice of entry of the judgments and failed to note in the

docket the giving of such notice”). We have held that this “is a bright-line

rule, to be interpreted strictly,” even if the party “did indeed receive notice

. . . .” In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007).

Because the judgment of non pros was never officially served on the

plaintiff of record in Hawbaker, that action remains pending in the original

jurisdiction of the trial court. Given that Ann Marie is not a party to

Hawbaker, and no final order was ever entered in Hawbaker, Ann Marie’s

appeal in Hawbaker is improper and premature. As a result, we quash her

appeal at 1507 MDA 2021 as premature and only address Ann Marie’s three

substantive issues as they pertain to her appeal in Swatt.

B. Waiver of Judgment on the Pleadings to Pharmacy

As her first appellate issue, Ann Marie challenges the grant of judgment

on the pleadings to the Pharmacy. However, the Pharmacy responds that Ann

Marie neglected to appeal the order granting it judgment on the pleadings or

even to name the Pharmacy in her notice of appeal. Thus, the Pharmacy,

which had to petition to intervene in this appeal (due to Ann Marie’s failure to

name it in her notice of appeal), contends that any argument Ann Marie has

against it is waived. See Pharmacy’s Substituted Brief at 14-23. We agree.

“The issue of waiver presents a question of law, and, as such, our

standard of review is de novo, and our scope of review is plenary.” Trigg v.

Children’s Hospital of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).

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To perfect an appeal, the appellant must file a proper and timely notice

of appeal. A proper notice of appeal must include the orders that the appellant

intends to appeal and give notice to the appellees. See Pa.R.A.P. 904(a).

Here, Ann Marie neglected to include the order granting judgment on

the pleadings to the Pharmacy in her notice of appeal. That order became

final when the trial court disposed of the remaining claims and parties by

granting summary judgment to the Nursing Home. See, e.g., Weible v.

Allied Signal, Inc., 963 A.2d 521, 524–25 (Pa. Super. 2008) (permitting

appeal where the trial court order, declaring the case settled as to all

remaining parties, rendered prior grants of summary judgment to the non-

settling parties final for purposes of appeal). Accordingly, Ann Marie’s failure

to identify the order granting judgment on the pleadings to the Pharmacy and

to identify the Pharmacy as an appellee in her notice of appeal waives any

claims related to the Pharmacy. See Jordan v. Pennsylvania State

University, 276 A.3d 751, 761 (Pa. Super. 2022) (holding that an appellant’s

failure to appeal trial court’s order denying petition for relief from judgment

of non pros renders all claims related to that order waived).

The trial court’s failure to rule upon Ann Marie’s motion to reconsider its

grant of judgment on the pleadings or for a declaration of finality does not

convince us otherwise. In Ann Marie’s view, because the trial court did not

enter an order declaring the grant of judgment on the pleadings final, the

court never released the Pharmacy from the case. She cites no law for this

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position, and our research has revealed none. See Ann Marie’s Substituted

Brief at 49. The assertion is incorrect.

A motion for judgment on the pleadings “provides all parties the means

to make an early application for summary disposition of the case, giving the

trial court the opportunity to make an overall examination of the pleadings in

the action and . . . determine whether, prior to trial, judgment should be

entered in the action.” 6 PA. STANDARD PRACTICE 2d. §31:1 at 73-74 (1994

ed.) (emphasis added). When a motion for judgment on the pleadings is

before the trial court, it “shall enter such judgment or order as shall be proper

on the pleadings.” Pa.R.C.P. 1034(b). Thus, the “ruling on the motion for

judgment on the pleadings can be a final judgment in favor of either the

plaintiff or the defendant.” 6 PA. STANDARD PRACTICE 2d. §31:38 at 124.

Here, Elizabeth had one claim remaining against the Pharmacy when the

Pharmacy moved for judgment on the pleadings. The trial court granted the

motion and stated, “any and all claims asserted against [the Pharmacy] are

DISMISSED with prejudice.” Trial Court Order, 4/8/16, at 2. Thus, the trial

court entered final judgment as between Elizabeth and the Pharmacy on April

8, 2016. The Pharmacy was released from the case at that point.

Elizabeth’s motion for a declaration of “finality” was her attempt to

appeal the order granting judgment on the pleadings immediately. She tried

to take an interlocutory appeal by permission. Despite her unresolved motion,

the order dismissing the Pharmacy became appealable when the trial court

later entered summary judgment in favor of the Nursing Home. At that time,

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the judgment-on-the-pleadings order also became final, by operation of law.

In fact, Elizabeth acknowledged her understanding that the trial court’s entry

of judgment on the pleadings released the Pharmacy from the action.

Elizabeth said, “allowing [the Pharmacy] to remain apart from this action until

resolution of [her] claims against the remaining [Nursing Home] would allow

for the degradation of potential witnesses memories, the potential destruction

of files, and foreknowledge of [Elizabeth’s] trial strategies by [the Pharmacy].”

Elizabeth’s Motion for Reconsideration or, Alternatively, for Finality at 17.

Clearly, the motion for reconsideration belies Ann Marie’s claim that the

trial court’s failure to declare finality kept the Pharmacy in the case. Elizabeth

sought a declaration of finality, because she knew that, without an immediate

appeal to this Court, the Pharmacy would no longer be a party to the litigation.

In her notice of appeal, however, Ann Marie omitted the Pharmacy and the

order granting it judgment on the pleadings.

Thus, we dismiss Ann Marie’s first issue as waived.

C. Statute of Limitations of Malpractice Claims

In her second issue, Ann Marie contends the trial court erred by ruling

that the statute of limitations barred her survival action. She claims this issue

“primarily involves application of Pennsylvania Rule of [Civil] Procedure 126

and the likelihood of administrative/clerical error.” Ann Marie’s Substituted

Brief at 25. Ann Marie believes we should apply Rule 126 and, in the pursuit

of substantial justice, overlook the fact that Attorney Kilgus filed the complaint

in Swatt after the statute of limitations for personal-injury claims expired.

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Ann Marie alleges Attorney Kilgus made a clerical error when filing the

original complaint that commenced the Swatt action. See id. at 31-33. She

asserts that Elizabeth, Attorney Kilgus, the Nursing Home, and the trial court

all intended for Elizabeth’s complaint to be docketed in Hawbaker by May 14,

2014. But, because Attorney Kilgus neglected to write the Hawbaker docket

number on the original complaint, the Prothonotary of Northumberland County

erroneously assigned a new docket number to the complaint and mistakenly

bifurcated the Hawbaker action and the Swatt action. Ann Marie states,

“whether this qualifies as a ‘breakdown in operations,’ a ‘clerical error,’ or

even a filing error on [Attorney Kilgus’] part, this cannot and should not be

seized upon by the defense as a means by which to dismiss and defeat what

may very well be a meritorious case.” Id. at 25-26.

In addition to Rule 126, Ann Marie also claims the Nursing Home waived

the statute-of-limitations defense under Rule of Civil Procedure 1030, and that

the Nursing Home is estopped from asserting the defense. See id. at 29-30;

see also Ann Marie’s Original Brief at 42-45. To support her estoppel claim,

Ann Marie alleges the Nursing Home consented to Attorney Hawbaker’s motion

to enlarge the time to file a complaint in Hawbaker. Ann Marie further argues

that the trial court failed to address her waiver and estoppel issues in either

of its opinions.

Whether a party is entitled to summary judgment is a pure question of

law; our standard of review is de novo. See Pyeritz v. Commonwealth, 32

A.3d 687, 692 (Pa. 2011). We view all facts and draw all reasonable

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inferences therefrom in a light most favorable to the non-moving party. See

Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007).

Initially, we address Ann Marie’s claims of waiver based on Rule 1030,

estoppel, and liberal construction under Rule 126. She correctly contends that

the trial court omitted these issues from its two opinions. However, Ann Marie

caused this omission by failing to raise any of those theories below. See Ann

Marie’s Opposition to Nursing Home’s Motion for Summary Judgment (making

no claim of waiver, estoppel, or Rule 126 in reply to the statute-of-limitations

defense) and Ann Marie’s Response to Nursing Home’s Surresponse for

Summary Judgment . . . (accord).9

“As a general matter. . . issues not raised in lower courts are waived for

purposes of appellate review, and they cannot be raised for the first time on

appeal.” Trigg, 229 A.3d at 269 (citing Pa.R.A.P. 302(a)).

Indeed, “issue preservation is foundational to proper appellate review.”

Id. This procedural prerequisite to appellate review “ensures that trial judges

have the opportunity to consider a potential appellate issue and correct any

error at the first available opportunity.” Id. “It also promotes the orderly and

efficient use of judicial resources, ensures fundamental fairness to the parties,

and accounts for the expense attendant to appellate litigation.” Id.

A review of Ann Marie’s filings in response to the Nursing Home’s motion

for summary judgment reveals that she failed to mention Rule of Civil

____________________________________________

9 Our scope and standard of review for waiver are the same as in Section

IV(B), supra, and we incorporate them here by reference.

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Procedure 1030, waiver thereunder, or the doctrine of estoppel. Similarly,

neither of Ann Marie’s responses to the summary-judgment motion referred

to Rule of Civil Procedure 126. She did not argue that the trial court should

liberally construe the rules for commencing an action, substituting parties, or

placing docket numbers on filings.

Thus, Ann Marie failed to preserve any claim of waiver under Rule 1030,

estoppel, or liberal construction under Rule 126 for our appellate review. We

dismiss those theories as waived. See Pa.R.A.P. 302(a).

That said, Ann Marie renews her claim to the trial court that the statute

of limitations does not bar her survival claims, because Hawbaker and Swatt

are one action. She says the trial court, in Hawbaker, granted Attorney

Hawbaker, as Executrix of the Estate of Madlyn Blusius, “a deadline of May

14, 2014 ‘to file a complaint in this matter.’” Ann Marie’s Substituted Brief

at 39 (quoting T.C.O., 4/16/14, at 1) (emphasis by Ann Marie). She contends

that this order is “evidence of the [Nursing Home’s] agreement/understanding

that the May 13, 2014 complaint was the next procedural step within the

‘matter’ timely-filed at [Hawbaker].” Id. at 40. Ann Marie believes, because

everyone expected Elizabeth to file her complaint in the Hawbaker docket,

she must have done so.

Summary judgment is appropriate if “the record clearly demonstrates

that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law.” Summers v. Certainteed Corp.,

997 A.2d 1152, 1159 (Pa. 2010). Furthermore, a “plaintiff cannot survive

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summary judgment when mere speculation would be required for the jury to

find in [her] favor.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa.

Super. 2014). The party opposing summary judgment must come forward

with some evidence to “demonstrate that there is a genuine issue for trial and

may not rest on averments in [her] pleadings.” Davis v. Resources for

Human Development, Inc., 770 A.2d 353, 357 (Pa. Super. 2001).

In Pennsylvania, there is a two-year statute of limitations to bring claims

for personal injuries. “[A]ctions and proceedings must be commenced within

two years,” if brought “to recover damages for injury to person or property

. . . sounding in trespass . . . .” 42 Pa.C.S.A. § 5524(7). Additionally, the

Supreme Court of Pennsylvania held that “a survival action in a medical-

professional-liability case resulting in death accrues at the time of death, not

at the time of decedent’s injury.” Dubose v. Quinlan, 173 A.3d 634, 647

(Pa. 2017). Hence, a survival-action plaintiff has two years from the date of

the decedent’s death to commence an action for personal injuries.

Madlyn died on January 5, 2012. Thus, any survival action following her

death needed to be commenced by January 6, 2014.

A plaintiff commences a civil action “by filing with the prothonotary: (1)

a praecipe for a writ of summons, or (2) a complaint.” Pa.R.C.P. 1007. Once

the plaintiff files a praecipe for a writ of summons or a complaint, the action

has “been ‘commenced,’ [and] the statute of limitations . . . has been tolled.”

Salay v. Braun, 235 A.2d 368, 371 (Pa. 1967).

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Attorney Hawbaker filed her praecipe for writ of summons against the

Nursing Home on January 2, 2014. Hence, she commenced her lawsuit within

two years of Madlyn’s death. The statute of limitations would not bar

personal-injury claims in Hawbaker. By contrast, Elizabeth filed her original

complaint on May 13, 2014, over two years and four months after Madlyn’s

death. Elizabeth’s complaint in Swatt was untimely to bring tort claims.

As a result, Ann Marie can only maintain her malpractice counts, if the

complaint that Elizabeth filed on May 13, 2014 is part of Hawbaker. The

record reveals that the trial court correctly deemed that the two actions were

separate proceedings, as a matter of law. Elizabeth’s May 13, 2014 complaint

was not a continuation of Hawbaker, to which the prothonotary mistakenly

assigned a new docket number.

If Attorney Kilgus intended for Elizabeth’s complaint to be a continuation

of Hawbaker, there were several steps she needed to take to establish the

continuity of a single action. First, she needed to enter her appearance in

Hawbaker. See Pa.R.C.P. 1012. Then, she needed to file a statement of

material facts to substitute Elizabeth for Attorney Hawbaker as the named

representative of the estate/plaintiff in Hawbaker. See Pa.R.C.P. 2352(a).

Attorney Kilgus did neither of those things.

Instead, the indisputable evidence shows that Attorney Kilgus captioned

the complaint to bring an action in Elizabeth’s personal capacity, rather than

as the Administratrix pro tem of the Estate of Madlyn Blusius. The caption of

the complaint did not include the words “estate” or “representative” in the

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identity of the named “Plaintiff.” Similarly, Attorney Kilgus added new

defendants to the complaint who were not named in Attorney Hawbaker’s

praecipe for writ of summons. Thus, three of the parties in Swatt were not

parties to the Hawbaker action.

Also, Attorney Kilgus left the line for the docket number of Elizabeth’s

complaint blank. “Every pleading shall contain a caption setting forth the

name of the court, the number of the action and the name of the pleading.”

Pa.R.C.P. 1018 (emphasis added). By not including the Hawbaker docket

number on the May 13, 2014 complaint, Attorney Kilgus undoubtedly indicated

to the prothonotary an intent to commence a new action.

Additionally, Attorney Kilgus paid a new-action filing fee. The Swatt

docket undoubtedly proves there was a “5/13/2014 Filing” and the fee for

“Commencement of Any Civil Action Paid . . . $116.00.” Docket Entries at 1.

Lastly, Attorney Kilgus had the sheriff serve the May 13, 2014 complaint

on the defendants as original service of process. See Pa.R.C.P. 400(a). The

sheriff had already served original process to the Nursing Home in Hawbaker,

so this step was redundant if Attorney Kilgus intended to continue Hawbaker.

Unsurprisingly, the prothonotary did not write the Hawbaker docket

number on the May 13, 2014 complaint. Nothing about Elizabeth’s complaint

or Attorney Kilgus’ actions hinted that the complaint related to Hawbaker, or

that she wanted to file it as a continuation of Hawbaker.

Moreover, there is no evidence of record reflecting that the prothonotary

stopped Attorney Kilgus from filing the complaint in Hawbaker. And, even

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if, the prothonotary refused to file the complaint in the Hawbaker docket due

to the lack of a docket number on it, there is no explanation as to why Attorney

Kilgus did not then simply write the Hawbaker docket number on the

complaint and reoffer it for filing.

The only logical conclusion from the documents of record is that

Attorney Kilgus intended to file the complaint as a new action and to create

the Swatt docket. Even viewing the documents of record in the light most

favorable to Ann Marie, no reasonable juror could find that Attorney Kilgus did

anything other than commence a new civil action, on behalf of a new plaintiff,

who was unrelated to the Hawbaker case. The May 13, 2014 complaint

commenced a new civil action, as a matter of law.

It was not until Attorney Kilgus filed an Amended Complaint, on June

30, 2014, that she indicated that Elizabeth was suing as the personal

representative of Madlyn’s estate. And even then, she still failed to identify

Elizabeth by the title that the Orphans’ Court of Franklin County bestowed on

her – “Administratrix pro tem for the Estate of Madlyn Blusius.” Moreover,

Attorney Kilgus neglected to move for consolidation of Swatt with Hawbaker

or, alternatively, to have them deemed to be one action.

The Amended Complaints do not change our conclusion. Although

Attorney Kilgus attempted to correct the name of the proper plaintiff when

she filed the Amended Complaint, she did so without the consent of the

adverse parties or an order granting leave of court, as required under Rule of

Civil Procedure 1033. The Rule provides, in relevant part, “A party, either by

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filed consent of the adverse party or by leave of court, may at any time change

the form of action, add a person as a party, correct the name of a party, or

otherwise amend the pleading.” Pa.R.C.P. 1033(a).

Further, Ann Marie fails to recognize that the May 13, 2014 complaint

was filed in Elizabeth’s personal capacity, instead of as the Personal

Representative of the estate. Therefore, she does not contend that any of the

Amended Complaints, by merely replacing the named plaintiff, corrected

Attorney Kilgus’ initial filing error. See Ann Maries’ Substituted Brief at 28-

48 (making no mention of the fact that the Swatt case was initiated by the

wrong party in interest).

The named representative in a survival action for an estate matters. “It

is settled law that a decedent’s estate cannot be a party to litigation unless a

personal representative exists.” Prevish v. Northwestern Medical Center

Oil City Campus, 692 A.2d 192, 200 (Pa. Super. 1997) (en banc), affirmed,

717 A.2d 1023 (Pa. 1998). “Stated differently, all actions that survive a

decedent must be brought by or against the personal representative of the

decedent’s estate.” Id. (emphasis added).

Thus, “the Estate,” to which Ann Marie continually refers to as “the

Plaintiff” in Swatt is a legal and factual misnomer. An action on behalf of an

estate may only be brought by the personal representative of the estate, when

acting in that capacity, and such capacity must be disclosed in the initial

pleading. See Pa.R.C.P. 2002(b)(1).

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Here, Attorney Kilgus did not disclose that she was filing Elizabeth’s suit

in Elizabeth’s capacity as personal representative of the Estate of Madelyn

Blusius, when she filed the initial pleading in Swatt, i.e., the May 13, 2014

complaint.10 Hence, the trial court correctly ruled that Ann Marie’s six counts

for medical malpractice against the Nursing Home were untimely. The court

properly granted summary judgment to the Nursing Home under the statute

of limitations on the tort claims.

We dismiss Ann Marie’s second issue as meritless.

D. The Gist-of-the-Action Doctrine & Contract Claims

Lastly, Ann Marie challenges the trial court’s application of the gist-of-

the-action doctrine to her contract claims. The trial court concluded that the

contract claims were tort claims in disguise. It therefore applied the two-year

statute of limitations to the contract claims and dismissed them as untimely.11

According to Ann Marie, “a litigant may proceed in both trespass and

assumpsit in the same action . . . .” Ann Marie’s Substituted Brief at 53. Given

that “the duties and measure of damages in this case are different as between

[her] negligence and contract claims, it was error for the [trial] court to bar

the contract claims under the gist-of-the-action doctrine.” Id. She contends

that the “doctrine operates to foreclose tort claims arising solely from the

____________________________________________

10 The praecipe for writ of summons filed in Hawbaker, supra, was not a

pleading. See Pa.R.C.P. 1017.

11 This issue also arises from a grant of summary judgment to the Nursing

Home. Thus, our scope and standard of review are the same as Section IV(C),

supra, and we reincorporate them here by reference.

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contractual relationship between the parties when the alleged duties breached

were grounded in the contract itself . . . .” Id. at 53-54. Thus, Ann Marie

argues that the trial court erroneously applied the doctrine backwards to bar

contract claims, rather than tort claims.

The Nursing Home responds that the gist-of-the-action doctrine bars

contract claims, as well as tort claims. It primarily relies on Bruno v. Erie

Insurance Co., 106 A.3d 48 (Pa. 2014), to contend that the essence of Ann

Marie’s “allegations . . . is not that a specific, contractual, executory promise

was breached, but rather that [the Nursing Home] acted in a negligent manner

in the performance of [its] duties; therefore, the gist of [Ann Marie’s] cause

of action is clearly negligence.” Id. at 37. The Nursing Home then offers a

string of post-Bruno decisions from the federal courts, which applied Bruno

in the same manner as the trial court in this case.

Reliance upon the gist-of-the-action doctrine and Bruno to convert Ann

Marie’s contract claims into tort claims is misplaced. The Bruno Court did not

decide whether the gist-of-the-action doctrine applies to contract claims. As

will become evident through our review of the history of the overlap between

tort and contract claims, a plaintiff’s choice of remedy (either in tort or in

contract) is not necessarily binary. We acknowledge that some non-

precedential decisions of this Court and federal cases have applied Bruno in

the manner that the Nursing Home urges. Those decisions were incorrect.

The history of the common law and advent of the rules of civil procedure

indicate that a plaintiff may bring contract claims, in addition to tort claims,

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for the same unlawful conduct by a defendant. In fact, over the centuries,

English and American courts have continually eased the rules of procedure

and pleading to allow parties to develop all possible claims and defenses in

the alternative. Created by a federal district court in 1999, the gist-of-the-

action doctrine was an anomaly and inadvertent step backwards. Today, this

appeal presents us with the opportunity to correct the error of applying the

“doctrine” to dismiss contract claims, and we do so.

1. The Ancient Common-Law Writs & Forms of Action

In Medieval England, the filing of a lawsuit required a writ from the King

that authorized a specific trial court to hear the case. A plaintiff had to choose

among various types of writs and the “form of action” that the chosen writ

authorized. There were many different forms of action available, and each

presented would-be plaintiffs with “a choice between methods of procedure

adapted to cases of different kinds.” Maitland, THE FORMS OF ACTION AT COMMON

LAW: A COURSE OF LECTURES at 2 (Cambridge U.P., 1965).

Each form of action was a “procedural pigeon-hole” with its own rules of

substantive law and precedents. Id. at 4. A plaintiff, with multiple causes of

action, might “find that his case [would] fit some two or three of these pigeon-

holes.” Id. The plaintiff had to choose one writ out of the many available,

and that choice was irrevocable.

Also, the common-law-pleading system insisted that courts decide only

a single issue of fact or law in each case. While this “produced administrative

effectiveness with a vengeance, too often [it] did so at the expense of

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substantive justice.” Fleming James, Jr., The Objective and Function of the

Complaint: Common Law – Codes – Federal Rules, 14 Vand. L. Rev. 899, 903

(1961). “[N]o one can forecast with certainty what the proof will bring forth

in the way of facts, or of issues, or of the possible attitude towards facts and

law that the tribunal may take . . . .” Id. Many cases “present two or more

issues . . . which must all be resolved if full justice is to be done.” Id. Thus,

common-law procedure, which limited a plaintiff’s causes of action and issues,

was “bound to cause many a miscarriage of justice.” Id.

Because the writs procedurally and precedentially pigeon-holed the law,

treatises and law-school “subjects” adopted those classifications; when “there

are, of course, no such distinct compartments in the law.” William L. Prosser,

The Borderland of Tort and Contract, SELECTED TOPICS ON THE LAW OF TORTS at

380 (1953). Unlike countries on a map, “the fields of liability and doctrine

interlock; everywhere there are borderlands and penumbras, and cases which

cut across the arbitrary boundary lines of division, or staddle them . . . .” Id.

In “one such borderland . . . the fields of tort and contract meet and are

interwoven.” Id. (emphasis added).

In fact, prior to the 1500s, there was no separate writ of (and, therefore,

no action to enforce) oral contracts. As a result, it was impossible for

commoners (who could not read, much less draft, sign, and seal a written

contract) to sue a smith, barber, surgeon, bailee, or common carrier for

breaching oral promises. However, if such professionals physically or

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economically harmed their customers by negligently performing their work,

courts allowed an action for trespass on the case to lie. See id.

As years passed and new factual scenarios emerged, the clerks of

chancery gradually issued new writs, which, in turn, established new forms of

action in the courts. One new writ, that emerged in the early 1500s, was the

writ of assumpsit. This writ became “exclusively a contract action; and with

it came the enforcement of executory promises, the necessity of

consideration, and finally the contract implied in fact.” Id. at 384.

The emergence of assumpsit created the substantive dilemma that we

now face in this appeal – namely, whether contract and tort actions may be

maintained simultaneously. Under common-law procedure, they could not,

because the court of chancery would only issue one writ per plaintiff. Although

there was a writ of trespass and a writ of assumpsit, there was no writ of

trespass and assumpsit. So, plaintiffs simply chose the writ they thought best

fit their case.

Plaintiffs often elected “the old tort action on the case in any contract

situation in which it had been recognized.” Prosser at 384. “Once it was clear

that assumpsit would lie for any breach of contract, but that in certain

situations there might still be a remedy in tort, the English courts began to be

beset with problems.” Id. at 385-86. As Dean Prosser highlighted, the

question was whether the plaintiff could still bring a trespass action, even

though assumpsit would clearly lie. In other words, “when was a breach of

contract also a tort?” Id. at 387. (emphasis added).

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To answer that question, courts looked to see if the “gist of the action”

conformed with the form of action that the plaintiff brought. Critically, “gist

of the action” was a legal term of art during the common-law-pleading era.

The foremost treatise on common-law pleading from the mid-1800s teaches

that the word “gist” was originally synonymous with “ground.” Stephen, ON

PRINCIPLES OF PLEADING IN CIVIL ACTIONS § 59, at 103 (2d. U.S. Ed, Chicago

Press, 1901).12 Additionally, in the 1800s, there were important

“distinction[s] between the ‘right of action,’ the ‘cause of action,’ the ‘ground

of action,’ and the ‘subject of action.’” Id.

Stephen defines the “ground of the action” as “the act of the offending

party, by means of which the injury is inflicted.” Id. at 105. “It is the unlawful

conduct, or conduct which might . . . be lawful, but which is rendered unlawful

by the character of the intent or object of the act . . . .” Id. Thus, the

defendant’s intent “constitutes an important element of the gist of the action.”

Id. n.4. (citing Morgan v. Andrews, 64 N.W. 869, 871 (Mich. 1895)). In

____________________________________________

12 The success of Stephen’s treatise led to the publication of a second edition

in 1827. Parliament abolished common-law pleading soon thereafter. In this

country, however, common-law pleading remained in effect, and Stephen’s

second edition was a staple of the American bar. That edition is now a Rosetta

Stone for deciphering pleadings and procedural decisions prior to the rules of

civil procedure.

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short, the ground/gist of the action was the defendant’s unlawful act upon

which the plaintiff’s cause (or causes of action) would lie.13

Indeed, the Supreme Court of Pennsylvania used the phrases as

synonyms in one of the earliest decisions containing the phrase “gist of the

action.” See Griffith v. Ogle, 1806 WL 1009, at *3 (Pa. 1806) (stating, “The

old writ of conspiracy charges a conspiracy in the defendants; and that

conspiracy is the ground of the action. In the present action, likewise, the

conspiracy is the gist of the action, although it may be necessary to show

some act in execution of it.”) (original emphasis removed; emphasis added).

Furthermore, “the cause of action” meant only the injury (or injuries)

that a plaintiff suffered from a defendant’s unlawful conduct. “Cause of action”

was frequently “confused with the unlawful conduct which gives rise to the

injury, [i.e.,] the ground of the action; but the cause of the action designate[d]

the nature of the injury . . . .” Stephen § 59 at 104. Therefore, a single

ground/gist of the action might produce multiple injuries, that is, multiple

____________________________________________

13 See THE OXFORD ENGLISH DICTIONARY, The Etymology of “Gist,” available at

https://www.oed.com/dictionary/gist_n3?tl=true&tab=etymology (last

visited 2/13/2025) (citing Kelvey’s Rep. at 1502-3 (1688) (explaining that

“gist” descended from Latin “jacere,” meaning “to lie down,” through the Old

French, “giser,” meaning “to lie.”)). Thus, the ancient legal saying was “(cest)

action gist,” meaning “(this) action lies.” Id. The O.E.D. still lists the original,

legal meaning of “gist” as the primary definition: “The real ground or point

(of an action, indictment, etc.).” Id., first definition of “gist,” available at

https://www.oed.com/dictionary/gist_n3?tl=true&tab=meaning_and_use

(last visited 2/13/2025) (emphasis added). “Gist” did not acquire its modern,

colloquial meaning of “substance or pith of a matter, the essence or main

part,” until approximately 1820. Id.

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causes of action. See id. at 105. Together, the “ground/gist of the action”

and “cause of action” were known as the “subject of the action,” a phrase

“almost as comprehensive as the word ‘transaction,’ . . . .” Id.

In determining whether the cause of action would lie in trespass, the

Court of King’s Bench said, “if a party undertakes to perform work and

proceeds on the employment, he makes himself liable for any misfeasance in

the course of the work; but if undertakes and does not [do] the work, no

action [in trespass] will lie against him for the nonfeasance.” Elsee v.

Gatward, 101 Eng. Rep. 82 (K.B. 1793). If the unlawful conduct was

“nonfeasance” (no performance of a contract), the plaintiff’s only remedy was

in assumpsit. By contrast, if the act was “misfeasance” (negligent/defective

performance of the contract), the remedy would lie in assumpsit but “may

also be a matter of tort.” Prosser at 388 (emphasis added).

Thus, 250 years ago, English courts recognized that, if a party to a

contract committed an unlawful act, the other party could always sue in

assumpsit. But the plaintiff might also sue in trespass, if the unlawful act was

also a tort. When someone negligently performed a contract, “the older tort

remedy carried over, wherever it was established, as an alternative to an

action on the contract.” Id. at 402 (emphasis added). For example, “a

common carrier remained liable in tort, as well as in contract, for negligent

injury to a passenger, for loss of his baggage, for carrying him past his station

or putting him off at the wrong one, for ejecting him from the train, or even

for insulting him.” Id. at 402-03 (emphasis added).

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In certain cases, the plaintiff could elect whether to file in trespass or in

assumpsit. The courts honored the plaintiff’s elected remedy, even if

defendants contended that another form of action was more appropriate.

2. The Plaintiff’s Election between Tort and Contract at Common Law

In the landmark case of Brown v. Boorman, 8 Eng. Rep. 1003 (H.L.

1844), England’s highest tribunal recognized that a plaintiff could sue in either

trespass or assumpsit for the negligent performance of a contract. The House

of Lords held that there is an implied duty in all contracts to perform the

contract with reasonable care and skill.

There, the Boormans contracted with Brown, an oil broker, to deliver

three shipments of oil to a customer in London. Brown agreed to collect the

purchase price prior to each delivery. The customer went bankrupt, so Brown

gave the last shipment to another person on credit. The Boormans never

received the purchase price for that shipment.

The Boormans obtained a writ of trespass upon the case against Brown.

They alleged that once Brown accepted their contract, he had a duty, “to use

all reasonable care and diligence” to receive the purchase price before handing

over the oil. Id. at 1004. They claimed Brown negligently performed that

duty and cost them their profits. Brown pleaded not guilty, and the jury ruled

for the Boormans.

Brown moved in arrest of judgment claiming the Boormans could not

sue him in tort for negligently performing the contract. The trial court agreed

and entered judgment, as a matter of law, for Brown.

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The Boormans appealed. The intermediate appellate court held that one

unlawful act (i.e., one gist of the action) can produce multiple causes of action.

Chief Justice Tindal, speaking for a unanimous court, said:

There is a large class of cases in which the foundation of the

action springs out of privity of contract between the parties, but

in which, nevertheless, the remedy for the breach or non-

performance is indifferently either assumpsit or case upon tort.

Such actions are against attorneys, surgeons, and other

professional men, for want of competent skill or proper care in the

service they undertake to render; actions against common

carriers, against shipowners on bills of lading, against bailees of

different descriptions; and numerous other instances occur in

which the action is brought in tort or contract, at the election of

the plaintiff.

Id. at 1007 (emphasis added). Thus, it did not matter which writ (trespass

or assumpsit) the Boormans used, because Brown’s negligent performance of

the contract was simultaneously a tort and a breach of contract. Thus, the

appellate court reversed and reinstated the jury verdict for the Boormans.

The House of Lords granted Brown’s petition for allowance of appeal.

Brown conceded that, when there is a contract and “also a general duty, the

plaintiff may have his election as to the form of action” between trespass and

assumpsit. Id. at 1007. However, in his case, he claimed the Boormans

“cannot have that election where the supposed duty is [only based on] the

. . . agreement of the parties. In such a case, the cause of action is a contract

and nothing else . . . .” Id. Further, Brown argued that, for the Boormans to

maintain an action in assumpsit, they needed to plead and prove which

express terms of the contract Brown breached.

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The House disagreed and held that the Boormans did not need to allege

and prove breach of an express term of the contract for assumpsit to lie.

Instead, the House concluded that service contracts include an implied term

that contractors will act with skill and care when fulfilling their obligations.

Hence, by alleging and proving negligence by Brown the tort action, the

Boormans simultaneously alleged and proved his breach of the implied term

in the contract.

Lord Campbell said, “it is immaterial . . . whether the count is framed in

tort or in contract.” Id. at 1018. “Wherever there is a contract, and

something to be done in the course of the employment . . . if there is a breach

of a duty in the course of that employment, the plaintiff may either recover in

tort or in contract.” Id. at 1018-19.

Significantly, this became the American rule. See Prosser at 407, n.

135-57 (collecting cases from American courts). Indeed, the Supreme Court

of Pennsylvania came to the same holding as Lord Campbell, in M’Call v.

Forsyth, 4 Watts & Serg. 179 (Pa. 1842). There, the plaintiff was riding in a

stagecoach that several people jointly owned, including William M’Call and

Abraham Horbach. The stagecoach wrecked and injured the plaintiff. He

obtained a writ of trespass to recover damages. However, the sheriff only

served M’Call and Horbach.

As in Brown, M’Call and Horbach contended the plaintiff needed to sue

in assumpsit, because their duty arose from their contract to provide

transportation. They argued that the plaintiff’s tort claim was really a contract

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claim. The trial court disagreed and submitted the tort claim to the jury. It

returned a verdict for the plaintiff, and the defendants appealed.

The Supreme Court affirmed. It held, when the common law imposes a

duty on the defendant and the defendant contracts with the plaintiff for the

same service as the common-law duty, negligent performance of the contract

creates two causes of action. The High Court said, “the true rule is, that [(1)]

an action solely on the custom is an action of tort; [(2)] the plaintiff has his

choice of remedies, either to bring assumpsit or [trespass on the] case; and

[(3)] when one or other form of action is adopted, it must be governed by its

own rules.” M’Call, 4 Watts & Serg. at 180 (citing Brotherton at al., 7 Eng.

Rep. 343; Ansell v. Waterhouse, 18 Eng. Rep. 227; Bank of Orange v.

Brown, 3 Wend. 158 (N.Y. 1829); and Zell v. Arnold, 2 Pen. & W. 292 (Pa.

1830) (“Zell I”)). Thus, the verdict in tort was affirmed, despite the fact that

the plaintiff could have alternatively sued in contact.

A few years later, in Smith v. Seward, 3 Pa. 342 (1846), the Supreme

Court explained that “it has long been established that the plaintiff may

declare in [trespass on the] case or assumpsit at his election . . . .” Id. at

345. (emphasis added). When either action lies, “the plaintiff may certainly

waive the contract and go for a tort.” Id.

Next, the Supreme Court expressly adopted Brown, supra. In

Wingate v. Mechanics’ Bank, 10 Pa. 104 (1848), a Pennsylvania bank

agreed to collect funds on behalf of its customers, which the customers had

previously deposited in two Mississippi banks. For various reasons, the bank

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failed to collect the funds and failed to inform the customers of that fact. The

Mississippi statute of limitations on the customers’ debts expired.

Eventually, the customers sued the Pennsylvania bank in assumpsit.

The jury found that the bank breached its contract.

The bank appealed and argued that the customers did not plead or prove

which specific terms of the contract it breached. The Supreme Court framed

the issue, in part, as whether the bank breached the contract by negligently

performing it. See id. at 108. The Court turned to the principles of agency

law and Brown to ascertain the scope of the bank’s contractual obligations.

The Wingate Court said, under Brown, “The law implies a promise

from brokers, bankers, or agents, and attorneys, that they will . . . exercise

competent skill and proper care in the service they undertake to perform; in

which, if they fail, an action lies [in contract] to recover damages for the

breach of their implied promise.” Id. at 108 (emphasis in original).14 Thus,

the Supreme Court read an implied term into contracts that service providers

will perform their contracts competently. The Court therefore affirmed the

jury verdict in favor of the customers.

Fifty years later, the Supreme Court extended the implied promise from

Brown and Wingate to laborers. In Zell v. Dunkle, 27 A. 38 (Pa. 1893)

____________________________________________

14 In fact, Wingate relied on Chief Justice Tindal’s opinion in the appellate

court, rather than the decision from the House of Lords. See id., (citing

Boorman v. Brown, 3 Q.B. (Ad. & E. N. S.) 511 (Exch. C. 1842), affirmed

sub nom. Brown v. Boorman, 8 Eng. Rep. 1003 (H.L. 1844)). The opinion

of Chief Justice Tindal aligned with the opinion of Lord Campbell. Thus, Lord

Campbell’s opinion on dual remedies reflects Pennsylvania law.

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(“Zell II”), the plaintiff contracted with the defendant to repair an engine and

boiler. While the goods were in the defendant’s workshop, a fire broke out

and destroyed the engine and boiler. The plaintiff sued in assumpsit.

The trial court granted a nonsuit on the basis that the plaintiff elected

the wrong form of action. According to the trial court, the plaintiff could only

sue in trespass, because the plaintiff alleged that the defendant negligently

stored the engine and boiler. The plaintiff appealed.

The Supreme Court said, “If there had been no previous contract

relation between the parties, damages occasioned by the negligence of the

defendants could have been recovered only in an action on the case,” i.e., in

tort. Id. (emphasis added). However, the parties had contracted, and the

engine and boiler came into the defendant’s control pursuant to the terms of

that contract. Therefore, the High Court read the implied promise from

Wingate and Brown into the repair contract, a promise “implied from the

nature of the express contract . . . to do what, in good faith and common

fairness, ought to be done for the protection of their customer’s goods.” Id.

When “a duty arises out of an implied undertaking to do an act requiring

skill or fidelity, an action of assumpsit will lie to enforce the duty, or an action

on the case for the tort involved in the breach of duty may be sustained.” Id.

at 39 (citing Reeside v. Reeside, 49 Pa. 322 (1865)). If the defendant does

not perfectly perform the contract:

he is liable on his contract, whether the cause of his failure be

his negligence, his fraud, or his crime, for his contract is broken

in either case. But if the cause of his failure be his own fraud or

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felony, he may, at the election of his customer, be proceeded

against for his tort, in any appropriate form of action ex delicto.

Id. (emphasis added). Thus, the Supreme Court held that the plaintiff could

sue in assumpsit for the defendant’s negligence, but it still upheld the nonsuit

due to insufficient proof of the alleged negligence.

These early cases demonstrate that, by the 20th century, a person could

sue a service provider for negligently performing a contract in either tort or

assumpsit.15 See Prosser at 402-10 n. 104-157 (collecting cases regarding

service providers). In such cases, “the plaintiff is entitled to sue either in

contract or in tort, because the defendant’s act is an unlawful interference

with the right of the plaintiff, which is created by agreement between them,

and also with a right which is created by law.” Burdick, THE LAW OF TORTS at

16 (1906) (emphasis added). In other words, one unlawful act (one “gist of

the action”) inflicts two, distinct legal harms (two “causes of action”).

However, courts established that plaintiffs could not recoup a windfall

by recovering twice. This Court said, a plaintiff “cannot bring two separate

suits for one cause of action and carry both suits to final judgments.” Burt v.

N. Philadelphia Trust Co., 45 Pa. Super. 320, 324 (1911). In Burt, a

plaintiff won a case against a bank in assumpsit and then immediately re-sued

the bank in trespass for the same unlawful act. While it did not matter whether

____________________________________________

15 In 1964, the Supreme Court continued applying this rule and concluded that

a plaintiff could sue in assumpsit when an airline’s employees negligently

performed a contract for common carriage. See Griffith v. United Air Lines,

Inc., 203 A.2d 796 (Pa. 1964).

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the plaintiff sued the bank in assumpsit or tort, “none of the cases hold that

the bank is liable to the depositor in an action of tort and of assumpsit.” Id.

at 4 (emphasis added). We therefore vacated the plaintiff’s second judgment.

Additionally, the statute of limitations may limit a plaintiff’s recovery,

regardless of the form of action. In Jones v. Boggs & Buhl, Inc., 49 A.2d

379 (Pa. 1946), the plaintiffs (husband and wife) filed in assumpsit to recover

economic and personal-injury damages for breach of contract. The wife had

purchased a fur coat and developed a rash on her neck. The plaintiffs sued

the store. The store raised the two-year statute of limitations and claimed

the plaintiffs’ assumpsit action was untimely, because the couple sought to

recover for personal injury.

The Supreme Court concluded that the statute of limitations “imposes

the period of limitation on the cause of action [i.e., the type of injury], instead

of Annexing it to the form of the action,” – e.g., trespass vs. assumpsit. Id.

at 381. Therefore, the statute operated to bar certain types of injuries – e.g.,

personal vs. economic. See id. at 380 (quoting the statute of limitations, that

lawsuits “brought to recover damages for injury wrongfully done to the

person . . . must be brought within two years.”) (emphasis added).16 As a

result, any damages for personal injury were untimely.

____________________________________________

16 In 1954, the legislature enacted the Uniform Commercial Code, 13 Pa.C.S.A.

§§ 2101–2725, and changed the statute of limitations for breach of a sale-of-

goods contract to four years, regardless of whether the plaintiff’s injuries were

economic or personal. See Gardiner v. Philadelphia Gas Works, 197 A.2d

(Footnote Continued Next Page)

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Nevertheless, the plaintiffs could still recover economic damages. The

wife’s testimony “would support a finding of a breach of contract entitling her

to nominal damages at least,”17 or “the jury may find from her evidence that

she should recover back the $22 paid [for] the coat on a credit-payment plan

. . . .” Id. Hence, the Supreme Court affirmed the grant of a nonsuit as to

the personal-injury claim, but it reversed as to the economic claims and

granted the plaintiffs a new trial.

3. The Rules of Procedure & Right to Plead in the Alternative

The early and mid-1900s saw American jurisdictions adopt rules of civil

procedure that ended the common-law-pleading system and its procedural

difficulties. Of particular concern for reformers was the common law’s

insistence on deciding a single issue in a lawsuit. The form of action took

second place to effectuating full justice between the parties.

____________________________________________

612, 612 (Pa. 1964). The disposition in Jones v. Boggs & Buhl, Inc., 49

A.2d 379 (Pa. 1946), barring the wife’s personal-injury claim no longer applies

to sales of goods. However, the Jones Court’s application of the non-UCC

statute of limitations to differing forms of remedy remained “sound rationale,

i.e., that the express language of the [general statute of limitations] should

not be avoided or circumvented . . . by allowing a party . . . to sue in one form

of action, assumpsit, instead of another, tort.” Id. at 613 (some punctuation

omitted).

17 At the time, Pennsylvania adhered to the common-law rule that, because

breach of contract originated from the intentional tort of deceit, every breach

of contract entitled the plaintiff to, at a minimum, nominal damages. See J.B.

Ames, The History of Assumpsit: Part I. – Express Assumpsit, 2 Harv. Law

Rev. 1 (1888).

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On January 1, 1947, the Pennsylvania Rules of Civil Procedure took

effect and replaced the common-law-writ system with a writ of summons or

the filing of a complaint. See 1947 Edition of the Pennsylvania Rule of Civil

Procedure, Rule 1007. The various forms of action of trespass and assumpsit

remained, and the plaintiff retained the right to elect between the two actions.

Additionally, the new rules allowed parties to plead their claims and

defenses in the alternative. See id., Rule 1020(c); see also Martin v.

Wilson, 92 A.2d 193, 195 (Pa. 1952) (“the [trial court held] it would have

been obviously inconsistent for the defendant to assert nonliability, because

the agreement was not in writing and at the same time aver that there was

no agreement at all. But the objection to such inconsistency in pleading has

now been overcome by Pa.R.C.P. 1020(c).”). The purpose of the Rules of Civil

Procedure was to increase the parties’ access to the courts and to elevate

substance over the common-law forms.

Furthermore, as late as 1982, courts still understood that “gist of the

action” meant the defendant’s unlawful conduct. In a case involving a lender’s

negligent performance of a mortgage, this Court said, “The action here . . .

was properly brought in assumpsit, though sounding in tort. The gist of the

action was defendant’s negligence and though it might have been brought in

trespass, the real issue was whether defendant was guilty of neglect in the

performance of its contract.” Mancine v. Concord-Liberty Savings & Loan

Assoc., 445 A.2d 744, 747 (Pa. Super. 1982) (quoting Siegel v. Struble

Bros., Inc., 28 A.2d 352, 354 (Pa. Super. 1942)). Thus, plaintiffs could still

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proceed in either form of action, when a single gist simultaneously breached

a duty of care and a contract.

Then, in 1983, the Supreme Court gave plaintiffs even greater flexibility

by eliminating the common-law forms of action in favor of one “civil action.”

“All claims heretofore asserted in assumpsit or trespass shall be asserted in

one form of action to be known as ‘civil action.’” 1983 Edition of the

Pennsylvania Rules of Civil Procedure, Rule 1001(b)(1); 13 Pa.B. 53 at 3999.

The rules from Brown and Wingate, decided in the 1840s, became a

part of the Rules of Civil Procedure, because a plaintiff could sue for negligent

performance of a contract in either tort or contract. The Rules simplified the

process by allowing plaintiffs to sue in both forms of action. “If a transaction

or occurrence gives rise to more than one cause of action heretofore

asserted in assumpsit and trespass, against the same person, including causes

of action in the alternative, they shall be joined in separate counts in the action

against any such person.” Pa.R.C.P. 1020(d) (emphasis added). That Rule

expressly authorizes plaintiffs to bring two counts for the same unlawful act.

In addition, the statutes of limitations still bar certain damages. For

example, in 1985, this Court said, in determining which limitation period “will

control, it is necessary to determine the nature of the damages sought to

be recovered.” Murray v. University of Pennsylvania Hospital, 490 A.2d

839, 842 (Pa. Super. 1985) (emphasis added). “If recovery is sought for the

cost of completing performance of the contract or remedying defects in

performance, the applicable statute of limitations [is four] years.” Id. (citing

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Jones, supra; Colvin v. Smith, 276 A.D. 9, 92 N.Y.S. 2d 794 (N.Y. App. 3rd

Div. 1949)). “If, however, the damages sought to be recovered are for

personal injuries, the two-year period of limitation is clearly applicable.” Id.

Therefore, in Murray, we barred a patient who suffered a failed tubal ligation

and her husband from asserting personal injuries under the two-year statute

of limitations. However, we allowed the couple to sue the wife’s doctor for

economic damages from the breach of contract, because they sued within four

years of the operation. See id. at 438 (citing RESTATEMENT SECOND OF

CONTRACTS §§ 347, 348 (1979)).18

4. The Emergence of “Gist-of-the-Action Doctrine”

Despite the long-standing right of plaintiffs to elect a remedy between

contract and tort, in 1999, the United States District Court for the Western

District of Pennsylvania radically departed from that tradition. In Sunquest

Info. Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651

(W.D. Pa. 1999), a plaintiff filed a complaint with multiple counts, including

breach of contract, fraud, and negligent misrepresentation.

The defendants filed a Federal Rule 12(b)(6) motion to dismiss the non-

contract claims. They argued that the “plaintiff’s misrepresentation claims

should be dismissed because this action fundamentally sounds in contract, not

____________________________________________

18 Although the Murray Court applied an earlier version of the statutes of

limitations, under the Statutory Construction Act, we apply the same

interpretation to the current version, because the legislature used

substantially similar language regarding the nature of the injury. See 1

Pa.C.S.A. 1922(4).

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in tort, and under Pennsylvania’s ‘gist-of-the-action’ doctrine, tort claims

cannot be maintained when they essentially duplicate an action for breach of

an underlying contract.” Sunquest, 40 F. Supp.2d at 651. It appears the

defendants coined the phrase “gist-of-the-action doctrine” and incorrectly

branded it as Pennsylvania law. Critically, they also used the wrong definition

of “gist,” i.e., the modern meaning of “essence” or “gravamen” of the plaintiff’s

action, instead of its historical, legal definition of a defendant’s unlawful act.

Regrettably, the Western District took the defense’s representations at

face value and presumed that there was, in fact, an established “gist-of-the-

action doctrine” in Pennsylvania. The court also adopted the defense’s modern

definition of “gist” and concluded that the “essence” of the lawsuit was breach

of contract. Therefore, it dismissed the fraud and negligent-misrepresentation

claims, as a matter of law, even though the plaintiff properly pleaded such

claims in its complaint. In dismissing the tort claims, the district court became

the first in history to adopt the phrase “gist-of-the-action doctrine.” See Alex

A. Tsiatsos, The Gist of the Action Doctrine: Lessons from Pennsylvania’s

Search for Cause of Action Essence, 119 W. Va. L. Rew. Online 1, 2 (2016).19

____________________________________________

19 See also BLACK’S LAW DICTIONARY (10th Ed. 2014) at 805 (indicating that

the entomological origin of “gist-of-the-action doctrine” is circa 2000 and

stating, “This term is most common in Pennsylvania but also appears in New

Jersey, Delaware, the Virgin Islands, and elsewhere”). Indeed, Tsiatsos

indicates in his article that the “doctrine” escaped across state lines thanks to

the Third Circuit’s precedents and jurisdiction to those states and the U.S.

Virgin Islands.

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By doing so, the district court resurrected the stringent, common-law-

writ system and forced plaintiffs to sue in either tort or contract. Further, it

eliminated the plaintiff’s right to elect the remedy, by relegating the plaintiff

to contract alone. Hence, Sunquest created a more restrictive process than

the common law and named it the “gist-of-the-action doctrine.”

Once a case such as Sunquest is “recorded for a precedent . . .

many an error, by the same example, will rush into the state.” William

Shakespeare, The Merchant of Venice, Act. IV, sc. 1, lines 228-230. Fifteen

years’ worth of error rushed into this Commonwealth following the decision in

Sunquest.

Pennsylvania trial courts soon began applying this new “doctrine” to

dismiss tort claims, but not contract claims, whenever plaintiffs alleged both

causes of action. The first court to do so in a published decision said, “the

misrepresentations on which plaintiffs depend are misrepresentations in the

course of performance, which, under Pennsylvania’s ‘gist of the action’

doctrine, are not actionable in fraud.” Foodarama Supermarkets Inc. v.

American Ins. Co., 43 Pa. D. & C.4th 467, 488 n.59 (C.C.P. Philadelphia

2000) (citing Sunquest).20

____________________________________________

20 Under Pennsylvania law, an intentional misrepresentation is the unlawful

conduct – the very gist of the action – for fraud. “Fraud must be averred with

particularity by the following elements: 1) a misrepresentation; 2) a

fraudulent utterance of it; 3) the maker’s intent that the recipient be induced

thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation;

and 5) damage to the recipient proximately caused.” Sevin v. Kelshaw, 611

A.2d 1232, 1236 (Pa. Super. 1992) (emphasis added).

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Two years later, this Court adopted the gist-of-the-action doctrine from

federal cases in eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10

(Pa. Super. 2002). There, a software developer sued its marketing company

for negligently performing an advertising contract. The marketing company

also falsified bills for work that its agents never performed, and the developer

paid those bills. Thus, the marketing company “stole money from [the

developer] under the guise of performing the contract.” Id. at 12.

The defendants moved for summary judgment on the tort claims, based

on the “gist-of-the-action doctrine.” The trial court agreed and dismissed the

tort claims. The developer appealed.

A panel of this Court adopted the doctrine and affirmed, even though

the panel acknowledged that the Supreme Court had never recognized such a

doctrine. Undeterred, the eToll Court said the doctrine “was recognized by

this Court for the first time in Bash v. Bell Telephone Co., 601 A.2d 825

(Pa. Super. 1992),”21 and barred the developer’s tort claims as sounding in

contract. Id. at 14.

____________________________________________

21 The panel’s reliance upon Bash v. Bell Telephone Co., 601 A.2d 825 (Pa.

Super. 1992) was misplaced. The Bash Court did not “recognize” the gist-of-

the-action doctrine in 1992. Instead, it quoted the same section of the Eastern

District’s 1977 case that Sunquest eventually relied upon when it created the

doctrine in 1999. See Bash, 601 A.2d at 355-56. Bash also drew from Iron

Mountain Security Storage Corp. v. American Specialty Foods, Inc.,

457 F. Supp. 1158 (E.D. Pa. 1978), the following quote:

Although they derive from a common origin, distinct differences

between civil actions for tort and contract breach have developed

(Footnote Continued Next Page)

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The gist-of-the-action doctrine, as eToll adopted it, “precludes plaintiffs

from re-casting ordinary breach of contract claims into tort claims.” eToll,

811 A.2d at 14. Based on four unpublished, federal decisions, eToll said, “the

doctrine bars tort claims: (1) arising solely from a contract between the

parties; (2) where the duties allegedly breached were created and grounded

____________________________________________

at common law. 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. To permit a promisee to sue his

promisor in tort for breaches of contract inter se would erode the

usual rules of contractual recovery and inject confusion into our

well-settled forms of actions.

Bash, 601 A.2d at 829 (quoting Iron Mountain, 457 F. Supp. at 1165)

(emphasis added) (some punctuation omitted).

Iron Mountain based its holding on the “distinct differences between

civil actions for tort and contract.” Id. In other words, the forms of action,

due to common-law writs, which compelled plaintiffs to “pigeon-hole” their

lawsuits into either an action for tort or an action for assumpsit. See THE

FORMS OF ACTION AT COMMON LAW: A COURSE OF LECTURES at 4 (Cambridge U.P.,

1965). Because separate forms of action for trespass and assumpsit still

existed in Pennsylvania at the time of Iron Mountain, the common-law

prohibition that “causes ex delicto and ex contractu cannot be joined in the

same action” still held sway. Baccini v. Montgomery, 46 Pa. D. & C.2d 219

(C.C.P. Del. 1969). Pennsylvania plaintiffs needed to make their election of

remedy at the outset of their case. Thus, the plaintiff in Iron Mountain could

not join assumpsit and trespass counts in a single lawsuit.

By the time of Bash, separate forms of action no longer existed. “The

procedural distinctions between the forms of action in assumpsit, trespass and

equity are abolished.” Pa.R.C.P. 1001, Note. Thus, the Supreme Court had

ended the pigeon-holing of plaintiffs’ complaints. The Rules of Civil Procedure

permitted all causes of action to be pleaded, even in the alternative, in one

civil action. Therefore, the concerns and the rationale of the Iron Mountain

Court for preserving “our well-settled forms of actions” no longer applied.

Iron Mountain, 457 F. Supp. at 1165.

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in the contract itself; (3) where the liability stems from a contract; or (4)

where the tort claim essentially duplicates a breach of contract claim or the

success of which is wholly dependent on the terms of a contract.” Id. at 19

(emphasis added) (some punctuation and citations omitted).

Like Sunquest, the eToll Court elected the contract claims for the

plaintiff and dismissed the tort claims. Notably, eToll never hinted, much less

held, that the gist-of-the-action doctrine applied in reverse, i.e., that it

prevented plaintiffs from bringing contract claims when the breach of contract

might also be a tort.

After eToll, this Court and other Pennsylvania courts began a quixotic

quest to distill the legal essence of plaintiffs’ lawsuits to determine whether

tort claims could proceed. Specifically, we stated that the “gist-of-the-action

doctrine precludes a party from raising tort claims where the essence of the

claim actually lies in a contract that governs the parties’ relationship.”

Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 718 (Pa. Super.

2005) (emphasis added). Similarly, BLACK’S LAW DICTIONARY (10th Ed. 2014)

explained, “The doctrine prevents plaintiffs from recasting contract claims as

tort claims.” Id. at 805. Under eToll and its progeny, we only applied the

gist-of-the-action doctrine to bar tort claims, not contract claims.

5. The Reformed Gist-of-the-Action Doctrine

In 2014, the Supreme Court granted allowance of appeal in Bruno v.

Erie Insurance Co., 106 A.3d 48 (Pa. 2014), to examine the gist-of-the-

action doctrine relative to a plaintiff’s tort claims. In Bruno, a husband and

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wife purchased insurance for a new home. A few months later, they informed

the insurance company there was mold in their basement. The company sent

an adjuster and engineer to investigate. Afterwards, they informed the Brunos

that the mold was harmless to humans. See Bruno, 106 A.3d at 51-53. The

Brunos relied on this advice, remained in the home, and became very ill from

black mold. They sued the insurance company and asserted only tort claims.

Like the oil broker in Brown nearly 175 years earlier, the insurance

company argued that the Brunos could not sue in tort, because the parties’

contract established the extent of the company’s duties. The trial court agreed

and dismissed the case. The Brunos appealed, and this Court affirmed.

The Supreme Court granted review of “whether a negligence claim

brought against an insurer by its insureds . . . was barred by the ‘gist-of-the-

action’ doctrine on the grounds that the true gist or gravamen of the action

was an alleged breach of the insurance contract . . . .” Bruno, 106 A.3d at

50 (emphasis added). The High Court held that the gist-of-the-action doctrine

did not bar the Brunos’ tort claims, even though the Brunos had a contract

with the insurance company. See id. at 71.

The Court “endorsed the principle that, merely because a cause of action

between two parties to a contract is based on the actions of the defendant

undertaken while performing his contractual duties, this fact, alone, does not

automatically characterize the action as one for breach of contract.” Bruno,

106 A.3d at 63. Bruno recalibrated the gist-of-the-action doctrine as a test

based on the duty that the defendant allegedly breached. The Supreme Court

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rejected the “essence” test that this Court announced in eToll.22 Therefore,

Bruno overruled the eToll “essence” test and any decisions between 2002

and 2014, which applied that test to compel plaintiffs to sue solely in contract.

Notably, Bruno did not review whether the choice between tort and

contract remedies is necessarily binary under the Rules of Civil Procedure.

Because the Brunos did not bring a breach-of-contract claim, that question

was not before the Justices. They only decided whether a tort claim could

exist when the parties had a contract.

Thus, Bruno did not reconsider the long-standing right of plaintiffs to

elect their remedy at common law, anytime one unlawful act breaches both a

contract and a general duty. The Bruno Court did not hear argument on or

consider the continued validity of cases such as M’Call, Smith, Brown,

Wingate and their progeny. Moreover, we decline to presume that the

Supreme Court abrogated that body of common law sub silentio. Those

precedents remain in effect and allow plaintiffs to elect the remedy they seek

to recover.

In short, contract claims never were, and are not now, subject to the

gist-of-the-action doctrine. Bruno did not state (and our research revealed

no binding authority) that the gist-of-the-action doctrine converts a plaintiff’s

____________________________________________

22 We note that the broader issue of whether the “gist-of-the-action doctrine”

ever actually existed or should continue to be a part of Pennsylvania law was

not before the High Court. Moreover, the Brunos began their argument by

conceding the existence of the doctrine and only argued the eToll “essence-

test” was unworkable. See Bruno v. Erie Insurance Co., 106 A.3d 48, 57-

58 (Pa. 2014).

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contract claims into tort claims. The doctrine does not extinguish contractual

rights, simply because the defendant’s conduct may also be a tort. Hence, we

hereby overrule any post-Bruno cases of this Court and our trial courts that

applied the gist-of-the-action doctrine as a binary choice of remedy to bar

contract claims.23

6. Ann Marie’s Contract Claims

Here, the trial court dismissed Ann Marie’s counts for breach of contract

under the gist-of-the-action doctrine, because the court ruled that those

counts were, in essence, tort claims masquerading as contract claims. Based

on our above discussion, the trial court erred.

Ann Marie’s contract claims were:

particular claims . . . that the duties breached were ones created

by the parties by the terms of their contract — i.e., a specific

promise to do something that a party would not ordinarily have

been obligated to do but for the existence of the contract — and

the claims are to be viewed as ones for breach of contract.

Bruno, 106 A.3d at 68 (cleaned up) (emphasis added).

____________________________________________

23 See, e.g., Johnstone v. Raffaele, 241 A.3d 479 (Pa. Super. 2020) (non-

precedential); Corliss v. Lee A. Ciccarelli, PC, 272 A.3d 457 (Pa. Super.

2022) (non-precedential); and Outerlimits Techs., LLC v. O’Connor, 311

A.3d 569 (Pa. Super. 2023) (non-precedential). In addition, we disapprove

of the decision in New York Cent. Mut. Ins. Co. v. Edelstein, 637 F. App’x

70 (3d Cir. 2016) (non-precedential), as wrongly decided. But see also,

Sibley v. Barr & McGogney, 260 A.3d 132, *2 (Pa. Super. 2021) (non-

precedential) (Stabile, J. correctly refusing to apply the gist-of-the-action

doctrine to bar a plaintiff’s contract claims and saying, “Under Pennsylvania

law, a client may bring both a contract action and a tort action against a

professional.”)

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She alleged the Nursing Home promised but failed to provide Madlyn

with a “room, meals, housekeeping services, use of walker or wheelchair when

medically necessary, nursing care, linen and bedding, and such other personal

services as may be required for the health, safety, welfare, good grooming

and well-being of” Madlyn. Ann Marie’s Opposition to Nursing Home’s Motion

for Summary Judgment, Ex. A (“Contract”). These are specific promises in

the Contract, i.e., contractual duties sufficient to maintain breach-of-contract

claims.

Ann Marie also averred that the Nursing Home negligently performed its

contractual duties to Madlyn. Thus, like the Boormans in Brown and the bank

customers in Wingate, her pleading effectively alleged that the Nursing Home

breached its implied promise to perform the Contract in a professionally skillful

and competent manner. See Brown and Wingate, supra. Ann Marie’s

contract claims may proceed to trial.

To the extent she seeks to recover economic damages (as opposed to

personal injuries), arising from the Nursing Home’s breach of contract, Ann

Marie’s final issue is meritorious. See Jones and Murray, supra (allowing

economic damages to proceed but barring damages for personal injuries under

that two-year statute of limitations).

V. Conclusion

In sum, we affirm the dismissal of all claims against the Pharmacy. Also,

the trial court correctly ruled that Hawbaker and Swatt are separate actions;

Hawbaker is not properly before us in this appeal. In Swatt, the trial court

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correctly dismissed Ann Marie’s claims for Madlyn’s personal injuries arising

from medical malpractice as untimely, because the two-year statute of

limitations bars them.

Finally, the trial court misapplied the gist-of-the-action doctrine to bar

Ann Marie’s contract claims. Since early common law, plaintiffs could freely

elect their remedy and sue in either contract or tort, when the facts supported

both forms of action. Today, the Rules of Civil Procedure allow a plaintiff to

plead both tort and contract claims in the same lawsuit.

After Bruno, Pennsylvania courts must review each claim individually

to determine whether the plaintiff has alleged or offered sufficient proof

(depending on the stage of the proceedings) that the defendant breached the

particular duty (tort or contractual) for each particular claim. If so, the

claim proceeds to trial. 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 an 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.

Order at 1506 MDA 2021 affirmed in part and reversed in part. Case

remanded for further proceedings consistent with this Opinion. Jurisdiction

relinquished.

Appeal at 1507 MDA 2021 quashed as premature.

P.J.E. Panella and Judges Dubow, Murray, Sullivan, and Beck join this

Opinion.

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P.J. Lazarus files a Concurring Opinion in which P.J.E. Panella and Judges

Dubow, Kunselman, Murray, Sullivan and Beck join.

Judge Stabile files a Concurring/Dissenting Opinion.

Judge King files a Concurring/Dissenting Opinion.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 07/02/2025

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