Johnstone v. Raffaele, 2020 WL 6375863, unpublished memorandum (Pa. Super. Oct. 30, 2020)

Breach of contract claim barred under the gist of the action doctrine where alleged conduct pertained to manner in which duties of representation performed and not a breach of a specific contractual promise.

The Pennsylvania Superior Court, in an unpublished opinion, continued the recent trend of Pennsylvania case law barring breach of contract claims that actually sound in tort pursuant to the gist of the action doctrine. In affirming the trial court, the Superior Court found that the plaintiff’s legal malpractice claim arose from the communications between the attorney and the client, the advice given to the client, and the manner in which the attorney performed his duties. Notably, the plaintiff did not allege that the attorney defendant failed to follow a specific instruction or failed to perform a promise contained in the engagement agreement. Because the plaintiff’s allegations sounded in negligence, rather than breach of contract, the gist of the action was in tort, and the breach of contract claim was barred. Application of the gist of the action doctrine in this way can have significant impact on the statute of limitations applicable to an action as a breach of contract action is subject to a four-year statute of limitations, while a negligence action must be brought within two years of the alleged breach of duty.


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