Poteat, A. v. Asteak, G.

J-E04001-24

2025 PA Super 277

ANTOINE POTEAT : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

:

v. :

:

:

GARY ASTEAK AND NINO V. TINARI : No. 729 EDA 2023

Appeal from the Order Entered February 7, 2023

In the Court of Common Pleas of Lehigh County

Civil Division at No: 2022-C-02045

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

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

DISSENTING OPINION BY STABILE, J.: FILED DECEMBER 11, 2025

I respectfully dissent. The Appellant, Antoine Poteat, has asserted

actions for breach of contract against his attorneys, Appellees, Gary Asteak

and Nino V. Tinari, based solely upon their implied obligation to provide legal

services in a manner consistent with the profession at large. I conclude, like

the trial court, that Appellant’s breach of contract claims were properly

dismissed upon preliminary objections for legal insufficiency, as the claims

sound only in tort and not in contract.1

The Majority holds the trial court committed error on two grounds in

dismissing with prejudice Appellant’s complaint for breach of contract. First,

deferring, as it must, to our recent decision in Swatt v. Nottingham, -- A.3d.

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1 The grounds for my dissent here are similar to those given in my dissent in

the related case of Swatt v. Nottingham, -- A.3d. --, 2025 WL 1821998 (Pa.

Super. filed July 2, 2025) (en banc).

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--, 2025 WL 1821998 (Pa. Super. filed July 2, 2025) (en banc), the Majority

finds it was error to apply the gist of the action doctrine to dismiss Appellant’s

claims. In doing so, the Majority, like the en banc panel in Swatt, again

departs from almost 200 years of controlling precedent that distinguishes

between causes of action in contract and tort based upon the breach of duty

alleged.

Second and relatedly, the Majority holds that an implied duty alone may

sustain both an action for breach of contract and one sounding in tort. In my

view, this too is in error because it ignores our Supreme Court’s holding in

Bruno v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014), which reaffirmed and

explained the difference between the respective duties that will support breach

of contract and tort actions, making clear that an action in contract will only

lie for the breach of an express contractual obligation.

A. The Facts of the Present Case

Ultimately, the dispositive issue before us is one of legal sufficiency –

whether the implied duty to represent a client in a manner that comports with

professional standards, alone, may satisfy the duty element of a claim for

breach of a contract for legal services.

In his complaint, Appellant asserted one count, styled as a breach of

contract claim, against both Appellees. Appellant alleges the parties executed

retainer agreements in which Appellant paid each Appellee $7,500 to

represent him in a criminal case. Appellant’s complaint did not allege the

breach of any express promise(s) under the agreements, but rather, only the

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breach2 of Appellees’ implied obligation to provide “legal services in a manner

consistent with the profession at large.” Complaint, 9/19/2022, at paras. 20,

27. Appellant argues that this implied duty was breached due to Appellees’

failure to have all of Appellant’s credit for time served applied to his sentence

and to seek dismissal of the case based on speedy trial grounds.

Appellant argues that his breach of contract claim was legally sufficient

under our Supreme Court’s decision in Bailey v. Tucker, 621 A.2d 108, 115

(Pa. 1993), and this Court’s decision in Gorski v. Smith, 812 A.2d 683 (Pa.

Super. 2002),3 which he interprets as holding that a breach of contract action

does not have to be founded on the breach of an express contractual duty.

Appellant asserts that he was entitled to cast a tort claim as a breach of

contract action, giving him the benefit of a doubled statute of limitations

period. See Complaint, 9/19/2022, at para. 22 (“[A] plaintiff can always

pursue their [malpractice] case under a contract theory and enjoy the longer

four year statute of limitations, at first glance effectively rendering the two

year negligence statute [of limitations] obsolete.”). 4

____________________________________________

2 Appellant did not attach any written agreements to his complaint.

3 Appellant did not have the benefit of our recent decision in Swatt at the

time he briefed and argued his case to this Court.

4 The limitations period for negligence claims is two years; the limitations

period for breach of contract claims is four years. See 42 Pa.C.S.A. §§ 5524-

5525. “The purpose of these limitations periods is to expedite litigation and

thus discourage delay and the presentation of stale claims which may greatly

prejudice the defense of such claims. In light of the important purpose served

(Footnote Continued Next Page)

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The damages sought by Appellant go beyond the retainer amount of

$7,500 paid to each Appellee. He asserts in his complaint that, “[a]s a direct

and proximate result of the misconduct described herein, [he] has suffered

damages including but not limited to economic and non-economic damages in

an amount to be fully determined at trial[.]” Id., at para. 33. He also sought

“consequential damages relating to the defective services described herein

which led to incarceration from September 21, 2015 to July 9, 2019.” Id.

Finally, Appellant demanded “compensatory damages” flowing from the

conduct of Appellees, as well as “punitive damages[.]” Id., at para. 17.

Appellees filed preliminary objections in the nature of a demurrer,

contending that Appellant’s breach of contract claim was legally insufficient as

pleaded because no facts had been alleged that Appellees ever breached a

specific contractual term. See Preliminary Objections, 1/6/2022, at paras.

30-36. Appellees argued further that Appellant’s claim should be construed

as one sounding in tort, see id., at paras. 37-51, and then barred under the

two-year statute of limitations period for such an action. See id., at paras.

52-59.5

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by limitations periods, this Court has held that statutes of limitation are to be

strictly construed.” Gustine v. Uniontown Assocs., Ltd. v. Anthony Crane

Rental, Inc., L.P., 842 A.2d 334, 346 (Pa. 2004).

5 With respect to Appellant’s claim for punitive damages, Appellees stated

that it should be stricken with prejudice because, as a matter of law, such

damages are not available to remedy a breach of a contractual duty. See

Preliminary Objections, 1/6/2022, at paras. 60-70. And again, consistent with

(Footnote Continued Next Page)

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The trial court sustained Appellees’ preliminary objections and dismissed

Appellant’s complaint with prejudice. See Trial Court Order, 2/7/2023, at

para. 4. In relevant part, the trial court ruled that construing Appellant’s

breach of contract claim as a negligence claim would be unavailing because

the applicable statute of limitations period already had run. See id., at para.

2. The preliminary objection in the nature of a motion to strike the punitive

damages claim was also sustained. Id., at 3.

In its opinion, the trial court explained that Appellant failed to assert a

legally sufficient cause of action for breach of contract based on the facts

alleged in his complaint. See Trial Court Opinion, 2/7/2023, at 4-7. The crux

of the trial court’s reasoning was that Appellant had pointed to no “specific

contractual term that was breached[.]” Id., at 5. Although Appellant had

cited Bailey and Gorski for the proposition that no such express contractual

term is needed for a viable breach of contract action, the trial court rejected

those authorities as inapposite. See id., at 5-6.

The trial court, instead, quoted our Supreme Court’s opinion in Bruno

to explain why Appellant’s contract claim sounded in tort rather than contract:

If the facts of a particular claim establish that the duty breached

is one 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 — then the claim is to be viewed as one for breach of

____________________________________________

Appellees’ alternative position, any tort claim of professional negligence would

be barred by the statute of limitations, further precluding punitive damages.

See id.

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contract. If, however, the facts establish that the claim

involves the defendant's violation of a broader social duty

owed to all individuals, which is imposed by the law of torts

and, hence, exists regardless of the contract, then it must

be regarded as a tort.

****

Consequently, a negligence claim based on the actions of a

contracting party in performing contractual obligations is

not viewed as an action on the underlying contract itself,

since it is not founded on the breach of any of the specific

executory promises which comprise the contract. Instead,

the contract is regarded merely as the vehicle, or mechanism,

which established the relationship between the parties, during

which the tort of negligence was committed.

Trial Court Opinion, 2/7/2023, at 4 (quoting Bruno, 106 A.3d at 68-70

(emphases added)).

Further, the trial court cited a string of decisions – unpublished

memorandum by this Court, and federal cases applying Pennsylvania law –

which declined to apply the principal cases relied upon by Appellant:

Although Bruno did not deal with legal malpractice

specifically, post-Bruno the majority of Pennsylvania

federal courts (as well as in several non-precedential

state cases) are finding that Gorski's broad

interpretation is no longer correct. See, e.g., N.Y.

Central Mutual Ins. Co. v. Edelstein, 637 F. App'x

70 (3d Cir. 2016) (applying Bruno's "specific

executory promise" language and declining to read

Bailey's "implied promise" dicta as binding); Brenco

Oil, Inc. v. Blaney, 2017 WL 6367893 (E.D. Pa.

2017) (finding that Edelstein and Bruno foreclose

Gorski's broad reasoning and that a breach of

contract claim requires an allegation of breach of a

specific executory promise). Further, courts generally

agree that the gist of the action may bar contract

claims if the true nature of the duty breached is in

tort. See, e.g., Johnstone v. Raffaele, No. 2581

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EDA 2019, 2020 WL 6375863 (Pa. Super. Ct. Oct. 30,

2020) (affirming a preliminary objection to a breach

of contract claim where the gist of the action against

an attorney for negligent preparation of documents

and "overall exercise of care" was in tort); Seidner v.

Finkelman, No. 716 EDA 2017, 2018 WL 4178147

(Pa. Super. Ct. Aug. 31, 2018) (applying the gist of

action doctrine and concluding a breach of contract

claim could not be sustained where allegations that an

attorney failed to exercise ordinary skill and

knowledge in excluding insurance as marital assets

sounded in tort).

Although not supplying concrete precedent, the non-

precedential decisions clearly show a trend of

incorporating Bruno and rejecting Gorski's

reasoning, and trial courts have cited the non-

precedential opinions as persuasive.

Lindner v. Wyrick, 2021 WL 5363324, at * 4 (W.D. Pa. June 30,

2021).

Id., at 5-6 (some internal citations omitted).

Relying on these authorities, the trial court reasoned that Appellant had

only alleged facts that would support a claim of “professional negligence,” a

cause of action that sounds in tort. See id., at 6. It followed, then, that

Appellant had not alleged facts that could support a viable breach of contract

claim against Appellees, “as [the complaint] did not allege a breach of a

specific duty imposed by the contract.” Id., at 6-7. Thus, the trial court

sustained Appellees’ preliminary objections and dismissed the entirety of

Appellant’s complaint with prejudice. See id., at 7.

Appellant timely filed a motion for reconsideration, arguing that the trial

court erred in finding Bailey and Gorski to be inapplicable. He again

contended that under those cases, a party may breach a contract “by failing

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to perform legal representation services consistent with those expected with

the profession at large.” Appellant’s Motion for Reconsideration, 3/7/2023, at

para. 24. The motion was denied, and Appellant timely appealed.

Appellant now ostensibly raises three issues, but his claims may be

reduced to a single ground – that the trial court erred as a matter of law by

ruling that “the gist of the action doctrine barred a Breach of Contract/Legal

Malpractice [claim] against [a] criminal attorney with a contract.” Appellant’s

Brief, at 6 (suggested answers and unnecessary capitalization omitted). 6

The Majority, citing Swatt, has found in favor of Appellant, holding that

the trial court erred when it applied the gist of the action doctrine 7 to convert

Appellant’s breach of contract claim into a tort claim, thereby extinguishing

the assumpsit action. See Majority Op. at 5. The Majority reasons that the

gist of the action doctrine does not bar the assumpsit action because Appellant

sufficiently alleged that Appellees “breached the retainer agreement by failing

to provide competent legal services[.]” Id. (Emphasis added).

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6 In sustaining Appellees’ preliminary objections in the nature of a demurrer,

the trial court found that Appellant’s complaint was legally insufficient

pursuant to Pa.R.Civ.P. 1028(a)(4). The question of whether a complaint is

legally insufficient under that provision involves a pure question of law, subject

to a de novo standard of review. See Catanzaro v. Pennell, 238 A.3d 504,

507 (Pa. Super. 2020).

7 The trial court’s discussion of the “gist of the action” is part and parcel of its

analysis of the legal sufficiency of Appellant’s pleading. “The gist of the action

doctrine serves as a means by which courts categorize claims to maintain the

distinction between theories of breach of contract and tort.” See Dittman v.

UPMC, 196 A.3d 1036, 1057 n.4 (Pa. 2018) (Saylor, J., concurring and

dissenting).

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Our Supreme Court’s Bruno opinion is dismissed by the Majority on the

ground that it did not discuss the enforceability of an implicit duty undertaken

by a party to a contract. Id., at 6. Bailey and Gorski instead were deemed

controlling by the Majority because they promote the policy-driven rule 8 that

when attorneys undertake a contractual duty to provide competent legal

services, clients have the right to enforce such a duty, even when an

agreement does not explicitly include such language. See id., at 7.

B. Bruno and the Gist of the Action Doctrine

In Bruno, our Supreme Court granted allocator to consider, in part:

whether a negligence claim brought against an insurer by its

insured – for alleged statements made by the insurer’s adjuster,

and an engineer the insurer had retained, that mold which the

insureds discovered while performing home renovations was

harmless and that they should continue their renovations – 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, their homeowners’ policy[.]

Bruno, 106 A.3d at 50.

The Court held that “the insureds’ negligence claim was not barred by

the gist of the action doctrine, as the claim was based on an alleged breach

of a social duty imposed by the law of torts, and not a breach of duty created

by the underlying contract of insurance.” Id., at 50-51. To reach this

conclusion, the Court discussed in depth how and why the gist of the action

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8 It is precisely because the duty alleged arises out of public policy, as will be

discussed infra, and not from an express contractual undertaking, that the

duty alleged to have been breached relates only to tort and not to a contract.

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doctrine bars a party from bringing a tort claim for what is, in actuality, a

claim for breach of contract. See generally id., at 60-70.

The Court began its analysis by reviewing the long history of gist of the

action cases in Pennsylvania. Those decisions were, in turn, guided by legal

principles derived from the English common law, which for hundreds of years,

“recognized no distinction between actions in tort and actions in contract,” id.

at 61, an abandoned position now apparently revived by the Majority in this

case and in Swatt.

As discussed in Bruno, the early English approach proved unworkable.

Once it became clear that assumpsit would lie for any breach of contract, but

that in some situations there still might be a remedy in tort, the English courts

“began to be beset with problems” as they attempted to distinguish tort and

contract actions for jurisdictional purposes and to determine available

damages. Id. Eventually, the English Parliament was compelled to solve

those problems by implementing a formal division between actions founded in

tort and contract. English courts thereafter had to examine the character of

each action to classify it appropriately. Id. American courts followed suit by

assessing the substance, or “the gist,” of each cause of action. Id.

The Bruno Court summarized the “seminal” Pennsylvania decisions on

the subject, many of which dated back to the 1800’s. See id., at 61-67. The

first of those opinions was Zell v. Arnold, 2 Pen. & W. 292, 294 (Pa. 1830).

There, the plaintiff contracted with the defendant to build a clover mill and to

dig a trench in the bed of a stream running across the plaintiff’s land. The

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trench was meant to divert the stream to the mill and make the stream level

with a dam. The defendant built the mill and dug the trench, but failed to do

so in a manner that made the mill functional.

The plaintiff brought suit, asserting that the defendant’s work was done

pursuant to a contract, and that the defendant had “negligently, carelessly,

and unskillfully, graded the race and water cars and built the mills so

inaccurately and for want of due care and skill, that it deprived the plaintiff of

the use of the improvements and the land.” Bruno, 106 A.3d at 62 (quoting

Zell, 2 Pen. & W., at 294). The plaintiff was awarded damages by the jury

and costs by the court, but the latter award was not permitted in contract

actions. See id.

On appeal, the Zell Court had to determine whether the trial court had

jurisdiction by assessing “the nature of the suit.” Id. In that analysis, the

existence of a contract was not dispositive, as the substance of the plaintiff’s

claim related to whether the defendant had performed contractual obligations

in a negligent or careless manner, and not whether the defendant had simply

failed to perform contractually required tasks at all. See id.

The Zell Court adopted the principle that an action does not sound in

contract (assumpsit) simply because the plaintiff accrued damages resulting

from the defendant’s performance of contractual duties. See id. at 62-63.

Instead, the gist of the action had to be established by the nature of the duty

breached, as alleged in the pleadings. See id. “[H]ence, actions arising

directly from an alleged breach of a contractual duty are regarded as being in

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contract, whereas those based upon an alleged breach of a party’s separate

‘collateral’ duty to perform a contractual obligation with skill and diligence

were to be considered as being in tort.” Id. at 63.

Zell was followed eight years later by McCahan v. Hirst, 7 Watts 175,

1838 WL 3224 (Pa. 1838), which clarified Zell’s holding. McCahan

established that whenever a plaintiff has alleged a defendant’s complete

failure to perform contractual duties (a nonfeasance), the action sounds in

contract; conversely, if the allegations concern a defendant’s negligent breach

of a duty which exists independently of the contract (a misfeasance), then the

action must sound in tort. See Bruno, 106 A.3d at 63 (citing McCahan, 1838

WL 3224, at *3).

In McCahan, the plaintiff alleged that a bailment contract required the

defendant to store cloverseed delivered by the plaintiff. The defendant lost

the cloverseed while it was in his custody, and the plaintiff asserted that the

defendant had negligently stored his property, entitling him to tort remedies.

The McCahan Court held that the plaintiff’s allegation of negligent storage did

not sound in tort because, in substance, the claim was the breach of a specific

contractual duty to store the plaintiff’s property. See id. The action was one

in contract, not in tort. See id.

Similarly, in Cook v. Haggarty, 36 Pa. 67, 1859 WL 8877 (Pa. 1859),

the Court again reaffirmed that an action must be classified by the nature of

the duty alleged to have been breached. In Cook, a contract required the

defendant to “safely keep, pasture, and specially care for, and attend to”

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plaintiff’s horses.” Bruno, 106 A.3d at 105 (quoting Cook, 1859 WL 8877 at

*1). The horses were injured while in the defendant’s care, and the plaintiff

asserted a tort claim, alleging that the damages resulted from the defendant

“carelessly, negligently and improperly” caring for the horses. Id. (quoting

Cook, 1859 WL 8877 at *3). Although the plaintiff had framed the action as

a tort, the Cook Court held that the defendant was permitted to raise

contractual defenses because the duty allegedly breached was exactly the

same as the duty expressly described in the parties’ contract. See id.

(quoting Cook, 1859 WL 8877 at *3).

A consistent result was reached In Krum v. Anthony, 8 A. 598, 600

(Pa. 1887), where the Court found that the mere existence of a contract

between the parties did not make the action a claim in assumpsit, as the

alleged damages resulted from the defendants’ negligence in creating a

dangerous condition. The plaintiff in that case had contracted with the

defendants to maintain a fence between their two properties. The defendants

then neglected to maintain the fence and even removed a portion of it which

bordered a quarry.

After the plaintiff’s horse wandered onto the defendants’ property and

fell into the quarry, the plaintiff sought to recover the value of the horse,

asserting that the defendants had breached their contract through their

negligence. The defendants argued that the plaintiff had been contributorily

negligent, and the plaintiff countered that such defenses were not available in

a breach of contract action. The Krum Court held that the existence of the

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contract to maintain fencing did not make the case an action in contract

because the extent of the parties’ respective negligence, and not the

defendants’ failure to maintain a contractually required fence, was “the very

gist of the action.” Bruno, 106 A.3d at 64 (citing Krum, 8 A., at 600).

In Horney v. Nixon, 61 A. 1088, 1089 (Pa. 1905), the Court applied

the gist of the action to preclude a tort claim for relief rooted in the defendants’

non-performance of contractual terms. In that case, the plaintiff sought tort

damages for the defendants’ failure to supply the plaintiff with specific theater

seats, causing plaintiff to suffer “indignity and humiliation.” Bruno, 106 A.3d

at 65 (citing Horney, 61 A. at 1089). The Horney Court held that the

defendants had only undertaken a purely contractual duty to furnish the

plaintiff with specific theater seats, so the plaintiff was only entitled to

contractual damages, precluding relief in tort. See id. (citing Horney, 61 A.

at 1089).

The Horney Court also established the “corollary principle” that “a claim

may be brought against a party for actions taken in performance of contractual

duties, if those actions constitute a breach of a general duty of care created

by law and owed to all the public.” Id. For example, unlike the implied social

obligation for a “common carrier” to serve the public, the duty of a ticket seller

is simply to provide the particular ticket paid for by the holder of the ticket:

It may be stated as an abstract proposition that, where the duty

of a common carrier to a passenger is not one which is implied by

law by reason of the relation of the parties, but depends solely

upon the fact that it has been expressly stipulated for, the remedy

is in contract and not in tort; but where the duty is implied by law

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by reason of the relation of the parties, or where the passenger

sustains an injury by reason of the breach of a duty which the

railroad owes to the public in general, the remedy is in tort. When

the gist of the action is a breach of duty, and not of

contract, and the contract is not alleged as the cause of

action, and when from the facts alleged the law raises the

duty by reason of the calling of the defendant, as in the

case of innkeepers and common carriers, and the breach of

duty is solely counted upon, the rules applying to actions

[in tort] determine the rights of the parties.

Horney, 61 A. at 1089 (internal quotes and citations omitted, emphasis

added).

Our Supreme Court adhered to this same approach in Reitmeyer v.

Sprecher, 243 A.2d 395 (Pa. 1968), wherein the Court recognized a plaintiff’s

right to assert a tort action based upon a breach of the defendant’s duty owed

to the public at large, despite that the conduct at issue arose after the

defendant failed to fulfill a contractual promise.

In Reitmeyer, a landlord promised a tenant during lease negotiations

that a porch would be repaired once the tenant took possession. The porch

was not promptly repaired, and the tenant sought tort damages after she was

injured by a collapse of the porch. On review, our Supreme Court held that

the claim sounded in tort because the landlord’s negligence was the gist of the

action, as the general duty to make the premises safe for tenants existed

independently of the contractual promise to make repairs. See Bruno, 106

A.3d at 65-66 (citing Reitmeyer, 243 A.3d at 398); see also Evans v. Otis

Elevator Co., 168 A. 2d 573, 574 (Pa. 1961) (“It is not the contract per se

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which creates the duty; it is the law which imposes the duty because of the

nature of the undertaking in the contract.”).

This litany of historical precedent distinguishing contract and tort actions

was critical to the holding of Bruno. As the Bruno Court stated,

[T]he fundamental principles comprising the gist of the action

doctrine have long been an integral part of our Court’s

jurisprudence and have, at least in two cases - Horney and

Reitmeyer – been employed by our Court for purposes of

determining whether a plaintiff may, as a matter of law, bring an

action in tort for a defendant’s alleged negligent acts committed

during the existence of their contractual relationship.

****

The general governing principle which can be derived from our

prior cases is that our Court has consistently regarded the nature

of the duty alleged to have been breached, as established by the

underlying averments supporting the claim in a plaintiff’s

complaint, to be the critical determinative factor in determining

whether the claim is truly one in tort, or for breach of contract

. . . . If the facts of a particular claim establish that the duty

breached is one 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 obliged to do but for

the existence of the contract – then the claim is to be

viewed as one for breach of contract. If, however, the facts

established that the claim involves the defendant’s

violation of a broader social duty owed to all individuals,

which is imposed by the law of torts and, hence, exists

regardless of the contract, then it must be regarded as a

tort.

Bruno, 106 A.3d at 68 (footnote and citations omitted, emphasis added).

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Respectfully, I find it hard to fathom how the Majority here, and this

Court’s majority in Swatt,9 can declare that “contract claims never were, and

are not, subject to the gist-of-the-action doctrine.” Majority Op. at 4 (quoting

Swatt, --- A.3d.---, 2025 WL 1821998, *55 (Pa. Super. filed July 2, 2025)).

The history of the gist of the action doctrine, spanning hundreds of years,

shows that the entire point of it is to distinguish between contract and tort

claims. See generally Bruno, 106 A.3d at 68-69.

The Swatt majority tried to distance its opinion from Bruno by framing

the latter decision as only concerning whether a tort claim could exist when

the parties had a contract, and not whether plaintiffs had to elect a remedy

any time the same conduct amounts to a breach of both a contractual and

general duty. By that same token, both the Swatt majority and the Majority

hold here that the gist of the action doctrine does not allow a trial court to

“convert” a nominal breach of contract claim into a tort claim. See Majority

Op. at 4 (citing Swatt, --- A.3d.---, 2025 WL 1821998, *55). None of our

history regarding the gist of an action supports the Swatt notion that a party

does not have to elect between a contract and tort claim when a contract

exists, but may assert both causes of action even where it is the same duty

alleged to have been breached.

____________________________________________

9 Swatt was a 5-4 en banc decision by this Court.

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The Majority’s attempt to distinguish Bruno appears to rely on a plain

misreading of our law, as Bruno cannot be reconciled with the instant

Majority’s interpretation of that opinion. Like in Bruno and the present

matter, Zell and Reitmeyer were cases where the attempt to convert tort

actions into contract claims was rejected by our Supreme Court. Krum was

a case where the Court affirmed that the action only sounded in tort despite

there being a contract between the parties. Although contracts existed in

these cases, the gist of those actions sounded in tort based upon the duty

breached. The Majority and Swatt attempt to undue this well-established

precedent to permit breach of contract and tort claims to coexist where the

alleged duty breaches arises from tort, and the contract merely serves to

establish the relationship between the parties during the time the tort was

committed.

Therefore, it is error for the Majority here and in Swatt to hold that the

doctrine cannot apply to require dismissal of tort actions that are improperly

cast as breach of contract claims.10 Bruno unequivocally preserves the gist

____________________________________________

10 The Swatt majority admirably attempted to unearth the historical

underpinnings of the doctrine in English law. But regrettably, the Swatt

majority missed, or failed to reconcile, that point in history when English

courts were compelled to distinguish between contract and tort actions; an

approach mirrored by our American court system. See Bruno, 160 A.3d at

61.

The Swatt majority mistakenly stated that the gist of the action “doctrine”

was created by a federal district court in 1999, and that it was an inadvertent

(Footnote Continued Next Page)

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of the action doctrine as a method of distinguishing contract claims from tort

claims, and vice versa. Accordingly, I once again must voice my dissent to

the position taken by the majority in Swatt, and to the current Majority, that

the gist of the action doctrine cannot be used to bar breach of contract claims.

C. The Majority Misreads Bailey and Gorski

The second error the Majority assigns to the trial court is that it

improperly relied on Bruno in ruling that a viable breach of contract action

requires the breach of a specific executory promise. See Majority Op., at 6.

The Majority reasons that Bruno does not concern the enforceability of an

implicit duty that a defendant undertakes in a contract, or more specifically

here, the implied duty to provide competent legal services. Id. This part of

the Majority’s decision rests entirely on its misinterpretation of a single

____________________________________________

departure from centuries of English and American courts which had allowed

parties to develop claims and defenses in the alternative. The Swatt majority

believed the case presented an opportunity for this Court to clarify that the

doctrine may not be used to dismiss breach of contract claims. If there were

any truth to the Swatt majority’s notion, it was dispelled by Bruno, which

held that the gist of the action doctrine must be applied in Pennsylvania to

distinguish whether a claim properly sounds in tort or assumpsit.

In my dissent to the majority Swatt opinion, I express my view as to why

some of the English cases relied upon by the majority did not support its

holding. Regardless of any perceived vacillation in historical precedent by

Swatt, the fact remains, our Supreme Court’s most recent and controlling

pronouncement on the gist of the action doctrine was expressed in Bruno.

The duties that may support a contract or tort claim are different, and it is the

nature of the duty that defines that difference, and hence, the cause of action.

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decision of our Supreme Court, Bailey, which this Court ostensibly followed

in Gorski.

In Bailey, our Supreme Court considered two consolidated cases in

which the plaintiffs were former criminal defendants who were suing their

attorneys for malpractice under theories of both negligence and breach of

contract. See Bailey, 621 A.2d at 110-12. The attorneys who served as the

plaintiffs’ criminal counsel sought dismissal pursuant to the statutes of

limitation; they also argued generally that criminal defense attorneys should

be immune from malpractice claims on social policy grounds. See id.

The Court found partial merit in the argument that the practice of

criminal law should expose attorneys to less liability than those practicing civil

law. The request for immunity was rejected, but the Court set forth different

sets of elements for negligent malpractice in the context of criminal and civil

law. The Court stated that, to “bring a trespass action against a criminal

defense attorney, . . . the plaintiff . . . must establish . . . [r]eckless or wanton

disregard of the defendant’s interest on the part of the attorney.” Id., at 115.

This differed from the standard given for negligence in a civil malpractice

action: “The failure of the attorney to exercise ordinary skill and knowledge[.]”

Id., at 112.

It was in that context that the Bailey Court then briefly discussed the

elements of a breach of contract (assumpsit) malpractice action:

ACTIONS IN ASSUMPSIT

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We now turn our attention to the second type of malpractice issue:

an assumpsit claim based on breach of the attorney-client

agreement. This claim is a contract claim and the attorney's

liability in this regard will be based on terms of that

contract. Thus, if an attorney agrees to provide his or her

best efforts and fails to do so an action will accrue. Of course

an attorney who agrees for a fee to represent a client is by

implication agreeing to provide that client with professional

services consistent with those expected of the profession at large.

Thus, this cause of action proceeds along the lines of all

established contract claims. It does not require a

determination by an appellate court of ineffective assistance of

counsel, nor does the client need to prove innocence. However, in

anticipation of potential problems it is necessary to comment on

the aspect of recoverable damages in such an action; quite simply,

such damages will be limited to the amount actually paid

for the services plus statutory interest. Our reasons for

imposing this limitation are the same as those discussed above;

to allow consequential damages in such a situation will engender

the same problems as those we sought to limit above [in the

discussion of actions in trespass for negligent malpractice].

Bailey, 621 A.2d at 115 (emphases added).

The present Majority selectively reads the above portion of Bailey,

quoting only the part that states, “if an attorney agrees to provide his or her

best efforts and fails to do so, an action will accrue. Of course, an attorney

who agrees for a fee to represent a client is by implication agreeing to

provide that client with professional services consistent with those

expected of the profession at large.” Majority Op., at 7. (Emphasis added

by the Majority). The Majority omits, or ignores, the prefatory language

emphasized by the Bailey Court that “[t]his claim is a contract claim and the

attorney's liability in this regard will be based on terms of that contract.

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Thus, if an attorney agrees to provide his or her best efforts and fails to do

so an action will accrue.” Bailey, 621 A.2d at 115 (Emphasis added).

The Bailey Court indeed referred to an express promise by the attorney

to provide his or her best efforts. It was only after stating that basic principle

that the Court then remarked further, “[o]f course an attorney who agrees for

a fee to represent a client is by implication agreeing to provide that client with

professional services consistent with those expected of the profession at

large.” Id. The Court did not hold that this implied obligation, alone, would

be enough to sustain a breach of contract claim. It merely observed that an

attorney takes on an implied duty of professionalism when engaged by a client

to provide legal services. Had the Court intended to overrule all of its prior

precedent, it would have discussed the established law requiring the breach

of an express contractual undertaking to sustain a breach of contract, and

then clarified why that precedent was no longer viable. Indeed, it would have

been most unusual for the Court to off-handedly abrogate established law in

a single sentence that had nothing to do with the ultimate holding of the case.

The evident focus of the holding in Bailey was not on explicating the

difference between tort and contract claims arising out of legal malpractice.

The plaintiffs’ respective malpractice claims were all filed beyond both the

applicable two-year limitations period for negligence claims, as well as the

period for breach of an oral contract (four years) and a written contract (six

years). On that sole basis, the complaints were barred as untimely. See id.,

at 116-17. The Bailey Court’s reference to an implied duty in contracts for

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legal services was completely divorced from its holding, making that portion

of the opinion non-binding dictum.11

In the Bailey Court’s own terms, there was nothing novel about its

description of implied duties for a breach of contract claim. Thus, the Bailey

Court’s allusion to an attorney’s implied duty only underscored an already

existing proposition that there is a difference between an attorney’s failure “to

follow specific instructions . . . [in] a specific provision of the contract” and an

attorney’s failure “to exercise the appropriate standard of care.” Storm v.

Golden, 538 A.2d 61, 66 (Pa. Super. 1988). The former conduct would sound

in contract, while only the latter conduct would sound in tort. See id.

Regardless, to the extent Bailey would permit any legal malpractice tort

claim to be cast as a breach of contract claim due solely to an implied covenant

of professional competence, such a holding would have later been overturned

by Bruno. Our Supreme Court held there that the breach of a contractual

duty must flow from counsel’s deficient performance of an express term

agreed upon by the parties. See Bruno, 106 A.3d at 68-70.

____________________________________________

11 The Bailey Court did not further detail the nature of the contractual duties

that the plaintiffs alleged were breached. Since the elements of a breach of

contract for legal services had no bearing on the holding of the case, the

Court’s definition of the implied contractual duty was dictum, with no

controlling effect. See Commonwealth v. Romero, 183 A.3d 364, 400 n.18

(Pa. 2018) (defining “obiter dictum” as a “judicial comment made while

delivering a judicial opinion, but one that is unnecessary to the decision in the

case and therefore not precedential (although it may be considered

persuasive.”). Subsequent “repetition does not elevate assertion that are

otherwise dictum into binding precedent.” Kane v. State Farm Fire and

Cas. Co., 841 A.2d 1038, 1048 (Pa. Super. 2003).

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Many of our recent decisions post-Bailey (of which the Majority makes

no mention and of which Swatt overrules), have, in line with Bruno, declined

to find a breach of contract to be sufficiently pleaded where the attorney’s

asserted duty is an implied promise to provide services consistent with those

expected of the profession at large. See e.g., Corliss v. Lee A. Ciccarelli,

PC, No. 891 EDA 2021 (Pa. Super. filed January 4, 2022) (unpublished

memorandum) (emphases added, internal citations omitted); see also

Outerlimits Tech., No. 169 EDA 2023, at *14-16 (holding that “action in

assumpsit was unavailable” in legal malpractice action because Appellant had

alleged the breach of counsel’s “failure to exercise the requisite level of skill

and knowledge,” but not the breach of a specific contractual provision or

promise).

The federal courts, too, when applying Pennsylvania law, have

consistently declined to accept that the duty element of a claim for breach of

a contract for legal services may be derived solely from an implied obligation

to perform at a minimum level of skill expected of an attorney. See e.g.,

Simons, 587 F.Supp. 3d. at 221-22 (dismissing breach of contract claim

because plaintiff did not indicate that he gave counsel “any specific

instructions” that counsel “failed to follow”); Edelstein, 637 F. Appx. at 73

(quoting Bruno, 106 A.3d at 70) (A legal malpractice “claim sounds in

negligence unless it is alleged that the party breached one of the specific

executory promises which comprise the contract.”); In re Tronox Incorp.,

616 B.R. 280, 289-90 (Bankr. S.D. N.Y. February 21, 2020); Edwards v.

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Thorpe, 876 F.Supp. 693, 694 (E.D. Pa. 1995) (“When a plaintiff’s cause of

action is based on an attorney’s failure to exercise due care, it will sound in

contract only if the attorney fails to follow the client’s specific instructions or,

by her negligence, breaches a specific provision of the contract.”); see also

Juday v. Sadaka, No. 19-1643, at *5-6 (E.D. Pa. August 30, 2019)

(unpublished decision); Lindner, 2021 WL 5363324, at * 4 (citing cases).

As for Gorski, I find the case to neither be controlling nor persuasive.

When presiding en banc, prior three-judge panel decisions of this Court may

be considered non-binding. See McGrath v. Bur. Of Prof’l. and Occup.

Affairs, State Bd. Of Nursing, 173 A.3d 656, 661 n.7 (Pa. 2017) (“[A]n en

banc panel of an intermediate court is authorized to overrule a three-judge

panel decision of the same court.”).

Further, the reasoning of Gorski conflicts with our Supreme Court’s

holding in Bruno, as well as the long-held distinctions between tort and

breach of contract actions that have been recognized in countless cases,

including Bailey, the very opinion that Gorski supposedly follows. See e.g.,

Guy v. Liederbach, 459 A. 2d 744, 752 (Pa. 1983) (stating “that the causes

of action in trespass and assumpsit are distinct,” and holding that contract

actions for legal malpractice are not viable when predicated on “negligence

criteria”).

In Gorski, a three-judge panel of this Court interpreted the implied duty

alluded to in Bailey as allowing a client to allege a breach of contract against

an attorney without having to identify an express contractual term that had

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been breached by counsel’s performance. See Gorski, 812 A.2d at 694

(“Hence, a breach of contract claim may properly be premised on an attorney’s

failure to fulfill his or her contractual duty to provide the agreed upon legal

services in a manner consistent with the profession at large.”). The panel’s

holding in Gorski was erroneous, as it was based on a misreading of Bailey.

As established above, the Bailey Court intended to maintain the distinction

between malpractice claims sounding in contract and tort, such that they

would each remain separate causes of action with mutually exclusive statutes

of limitations and available damages. See Bailey, 621 A.2d at 115-17.

The implied duty referred to in Bailey was not meant to signal a

reworking of contract law, or a conflation of contract and negligence concepts.

Recognizing (in dictum) that all retainer agreements impliedly require counsel

to perform at a professional standard is a far cry from holding (for the first

time in Pennsylvania’s history) that a breach of that implied duty alone is

cognizable in assumpsit. Had our Supreme Court intended for the law of

contract to subsume tort legal malpractice claims in that manner, it would

have said so. Even if the Gorski panel had properly construed Bailey (which

it did not), we would still have to find that our Supreme Court’s more recent

decision in Bruno has superseded its earlier Bailey opinion.12

____________________________________________

12Numerous federal courts have noted the incompatibility between Gorski

and our Supreme Court’s holding in Bruno. See e.g., New York C. Mut.

Ins. Co. v. Edelstein, 637 Fed. Appx. 70, 74 (3d Cir. 2016) (unpublished

decision); Tronox, 616 B.R., at 289. I agree with the federal courts that

Gorski is not good law.

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D. Implied Duties, Alone, Cannot Support an Action in Assumpsit

It bears repeating that the dispositive issue in the present case is

whether Appellant alleged sufficient facts in his complaint to sustain the legal

duty element of a breach of contract action where only an implied duty has

been alleged to have been breached.

“A complaint must, at minimum, set forth the facts upon which a cause

of action is based.” Burnside v. Abbot Lab., 505 A.2d 973, 980 (Pa. Super.

1985).13 “[E]very contract imposes on each party a duty of good faith and

fair dealing in its performance and its enforcement.” Kaplan v. Cablevision

of PA., Inc., 671 A.2d 716, 722 (Pa. Super. 1996) (en banc) (quoting

Restatement (Second) of Contracts, § 205(d)); see also Obermayer,

Rebmann, Maxwell & Hippel, LLP v. J.P. Mascaro & Sons, No. 1601 EDA

2021 (Pa. Super. filed April 18, 2022) (unpublished memorandum) (same).

We also have held that “[w]ith respect to a legal malpractice claim based

on breach of contract,” an agreement for legal services carries with it an

implied duty on the part of the attorney to represent the client in a manner

that comports with professional standards:

[T]he attorney’s liability must be assessed under the terms of the

contract. Thus, if the attorney agrees to provide . . . her best

efforts and fails to do so, an action in assumpsit [breach of

contract] will accrue. An attorney who agrees for a fee to

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13 “It is well-established that three elements are necessary to plead a cause

of action for breach of contract: (1) the existence of a contract, including its

essential terms, (2) breach of the contract; and (3) resultant damages.”

Meyer, Darragh, Buckler, Bebenek & Eck, P.L.L.C. v. Law Firm of

Malone Middleman, P.C., 137 A.3d 1247, 1258 (Pa. 2016)).

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represent a client is by implication agreeing to provide that client

with professional services consistent with those expected of the

profession at large.

Outerlimits Tech., LLC v. Cozen O’Connor, No. 169 EDA 2023 (Pa. Super.

filed December 8, 2023) (unpublished memorandum) (quoting Dougherty v.

Pepper Hamilton LLP, 133 A.3d 792, 796 (Pa. Super. 2016)).

Whether a breach of this implied duty alone may enable a claim to

sound in contract (assumpsit) is another matter entirely. As held in Bruno,

a breach of contract claim must be founded on the breach of “any of the

specific executory promises which comprise a contract.” 106 A.3d at 70

(emphasis added). “[I]f the facts of a particular claim establish that the duty

breached is one 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 – then the claim is to be

viewed as one for breach of contract.” Id., at 68. “[M]erely 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.”

Id., at 63.

By contrast, the negligent performance of a contract is founded on a

breach of a social duty “which is imposed by the law of torts and, hence, exists

regardless of the contract[.]” Id. at 68. Courts have recognized for many

years that a party to a contract may breach such a duty arising from the

establishment of a contractual relationship, but that the resulting cause of

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action sounds in tort (negligence) because it does not arise from a breach of

a duty created by the contract itself. See id. at 70 (citing Reitmeyer, 243

A.2d at 397 (holding that lessee could only sue landlord in tort for the

defective condition of the premises despite that the parties had executed a

lease and the landlord had promised to make the needed repairs)); see also

Zell, 2 Pen. & W. at 294 (explaining that where a claim is not based on “a

failure to perform” under the terms of the contract, but rather “a failure to

perform in a workmanly manner” under a duty implied by law, the action

sounds in tort, which is “collateral” to an action in assumpsit).

In the absence of a duty that arises from an express term of a contract,

a breach of contract claim is insufficient as a matter of law. This logically

follows from the premise that “[i]mplied duties cannot trump the express

provisions in the contract.” See John B. Conomos, Inc. v. Sun Co., Inc.

(R&M), 831 A.2d 696, 706 (Pa. Super. 2003). “Unequivocal contractual

terms hold a position superior to any implied by courts, leaving implied

covenants to serve as gap filler.” Id. (Emphasis added).

“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.” Bash v. Bell

Tel. Co., 601 A.2d 825, 829 (Pa. Super. 1992). Accordingly, where the law

imposes a duty or obligation on a party to a contract by implication, the

implied term cannot require something of the party which has “not [been]

explicitly contemplated by the contract.” Conomos, 831 A.2d at 706.

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By the same token, the common law “doctrine of necessary implication

. . . will imply an agreement by the parties to a contract to do and perform

those things” which would be necessary to carry out the purpose of the

contract. Palmieri v. Partridge, 853 A.2d 1076, 1079 (Pa. Super. 2004).

Such implied terms do “not create a separate duty of fairness and

reasonableness which can be independently breached.” Hanaway v.

Parkesburg Group, LP, 168 A.3d 146, 157 (Pa. 2017) (quoting 13 Pa.C.S.A.

§ 1304 (cmt 1)); see also Glassmere Fuel Service, Inc. v. Clear, 900 A.2d

398, 403 (Pa. Super. 2006) (declining to interpret contract as containing an

implied or necessary obligation for defendant to provide specific financing

services, where “such an obligation [did] not appear on the face of the

Agreement itself . . . [or] contain any provisions which suggest that financing

was even contemplated by either party.”); Creeger Brick and Bldg. Supply

Inc. v. Mid-State Bank and Trust Co., 560 A.2d 151, 155 (Pa. Super. 1989)

(holding that breach of contract action was properly dismissed as legally

insufficient because plaintiff only asserted breach of an implied duty for a bank

to deal with a borrower in good faith, and no breach of the express contractual

terms were alleged).

The practical effect of these prevailing rules is that, whether or not an

implied duty is framed as one arising from the law of tort or contract, the

breach of such a duty does not give the non-breaching party an independent

cause of action in contract. Rather, a breach of an implied contractual duty,

or implied covenant or obligation, must be subsumed within a claim of breach

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of an express contractual term. See generally LSI Title Agency, Inc. v.

Eval. Servs., Inc., 951 A.2d 384, 391 (Pa. Super. 2008); see also Simons

v. Royer Cooper Cohen Braunfeld LLC, 587 F.Supp.3d 209 (E.D. Pa.

February 28, 2022).

To be sure, courts may consider an implied duty, or covenant, as part

of a contract, but they may only do so “to harmonize the reasonable

expectations of the parties with the intent of the contractors and the terms in

their contract.” Conomos, 831 A.2d at 707; see also Stamerro v.

Stamerro, 889 A.2d 1251, 1259 (Pa. Super. 2005) (same); Post v.

Anderson, No. 2183 EDA 2022 *11 (Pa. Super. filed July 19, 2023)

(unpublished memorandum) (same).

This is not to say that a breach of contract action may never arise, in

part, from an implied duty. It is just that an implied duty may only support a

breach of contract action when necessary to ascertain a party’s specific

contractual obligations. See generally Jamison v. Concepts Plus, Inc.,

552 A.2d 265, 269 (Pa. Super. 1988) (holding that parties’ implied duty to

perform contract with “reasonable measures” and “due diligence” were

relevant in breach of contract action insofar as the implied duties shed light

on what the contract specifically required of the parties); see also Somers

v. Somers, 613 A.2d 1211, 1215 (Pa. Super. 1992) (holding that a breach of

contract claim was sufficiently pleaded, and recognizing an implied obligation

for defendant to act in good faith and with due diligence in the performance

of an express contractual duty in an employment agreement to calculate

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plaintiff’s share in proceeds of the business); Goldstein v. Elk Lighting, Inc.,

2013 WL 790765 (M.D. Pa. March 4, 2013) (alleged breach of contract claim,

based in part on implied covenant of good faith and fair dealing, was sufficient

because the implied duty fleshed out prohibited conduct for a party performing

express contractual duty to pay a retirement benefit).

Accordingly, it is and has been firmly established in Pennsylvania law

that while there are implied obligations in every contract; it is equally evident

that a claim for breach of contract cannot be based solely upon an implied

obligation. The breach of an implied obligation is only relevant in a contract

action when needed to clarify the terms of an express contractual undertaking.

An implied obligation is a “gap filler” in a breach of contract action, to be used

as an interpretative tool when the express terms of a contract do not specify

how contractual duties are to be performed.

E. Appellant’s Claim is Rooted in Tort, not Contract

In the present case, Appellant’s complaint contained a single count

against both Appellees, nominally asserting a breach of their contracts for

legal services. Appellant did not attach any contract to his complaint, instead

alleging only that Appellees breached a contractual duty, implied by law, to

provide legal services in a manner consistent with professional standards.

See Complaint, 9/19/2022, at paras. 21, 27. It was alleged further that

Appellees “failed to adequately perform with regard[] to the applicable

standards of competence and diligence required in the field and profession of

law” when they failed to raise issues pertaining to Appellant’s right to a speedy

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trial and his right to credit for time served. Id., at paras. 28-29. Appellant

did not allege that these specific tasks were the subject of any express term

in the retainer agreements. See id.

Plainly, Appellant has failed to assert facts which would establish the

elements of a legal malpractice claim for breach of contract. 14 For such a

claim to be viable under the framework of Bruno and the long line of cases

that preceded it, the duty owed by Appellees would have to flow from an

express term in their contracts for legal services. See Bruno, 106 A.3d at 70

(requiring breach of contract action to be based on “specific executory

promises which comprise a contract.”); see also Meksin v. Glassman, No.

1174 EDA 2018 (Pa. Super. filed May 21, 2019) (unpublished memorandum)

(holding that trial court properly dismissed breach of contract malpractice

claim where “the allegations implicated [counsel’s] overall exercise of care

and professional judgment rather than compliance with the terms of his

agreement to provide legal services.”). Since no breach of any express

term(s) was mentioned in Appellant’s complaint, I would conclude that the

trial court correctly sustained Appellees’ preliminary objections in the nature

of a demurrer. The duty alleged to have been breached sounds only in tort.

In addition, while recognizing that Appellees had implied contractual duties, I

____________________________________________

14 It should not go unnoticed that, while not controlling under our case law to

distinguish contract from tort actions, some of the damages sought by

Appellant may only be recovered in tort. Appellant pled damages in the nature

of economic and non-economic damages, consequential damages relating to

the defective services that led to incarceration, compensatory damages, and

punitive damages.

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would stop short of easing the established pleading requirements of a breach

of contract claim, as the Majority does, by no longer requiring that an implied

duty must be pleaded in conjunction with the alleged breach of an express

contractual duty.

In sum, the trial court properly dismissed Appellant’s contract action.

The present Majority’s opinion, as well as the majority’s opinion Swatt,

impermissibly erases nearly 200 years of controlling precedent distinguishing

between contract and tort actions, and the role that implied conditions play in

each of those actions. Thus, I respectfully dissent.

President Judge Emeritus Panella and Judge King join the Dissenting

Opinion.

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