Superior Court Holds that Gist of the Action Doctrine Does Not Bar Breach of Contract Claims Sounding in Professional Negligence

A trial court’s grant of preliminary objections in a breach of contract action brought against the plaintiff’s former attorneys was reversed after the Pennsylvania Superior Court, sitting en banc, determined that the trial court erred (1) in applying the gist of the action doctrine and (2) in determining that the plaintiff was required to identify a specific provision in the retainer agreement that imposed a duty on the attorney defendants.

The plaintiff had been convicted of a crime and sentenced to five to ten years’ incarceration, which was overturned because the defendants had provided the plaintiff with ineffective assistance of counsel. The plaintiff then sued the defendants for breach of contract for failing to provide competent legal services, without identifying a specific provision of the agreements that the defendants allegedly breached. Importantly, the plaintiff could not bring a professional negligence claim as the statute of limitations had expired. The trial court granted the defendants’ preliminary objections because the gist of the action doctrine bars breach of contract claims that actually sound in negligence.

The Superior Court reversed, holding that, per its recent en banc decision in Swatt v. Nottingham Village, the gist of the action doctrine does not bar breach of contract claims that also sound in negligence. Furthermore, extending Swatt’s holding, it held that contracts for legal services contain an implied provision to provide competent legal services.

Accordingly, legal professional liability plaintiffs may now take advantage of the four-year statute of limitations for breach of contract claims­—they are not limited to the two-year statute of limitations for negligence.