The Supreme Court of Pennsylvania recently granted review to opine on the continuing validity of the gist of the action doctrine, commonly employed by defendants to strike claims that seek to convert breach of contract claims into tort claims, and vice-versa. In Poteat v. Asteak, 350 A.3d 198 (Pa. Super. 2025) Antoine Poteat (Appellant) sued his attorneys (Appellees) for breach of their retainer agreement, alleging appellees failed to provide competent legal services that ultimately led to his conviction and criminal sentence. Appellees filed a preliminary objection to the Complaint, asserting that the Appellant’s claim sounded in tort, rather than contract, under the Gist-of-the-Action Doctrine and thus is barred by the statute of limitations. Specifically, the Appellees further argued that the complaint did not allege a specific executory promise in the retainer agreement, making the claim legally insufficient. The trail court granted the preliminary objection and dismissed the suit with prejudice.
But the Superior Court reversed. Sitting en banc, the Court reasoned that “the gist of the action doctrine does not allow a trial court to convert a breach of contract claim into a tort claim and then dismiss the claim based on the statute of limitations.” Building on a recent decision that narrowed the gist of the action doctrine in Swatt v. Nottingham Village, 342 A.3d. 23, 51 (Pa. Super. 2025). the Court explained that “contract claims never were, and are not now, subject to the gist-of-the-action-doctrine …[t]he doctrine does not extinguish contractual rights, simply because the defendant’s conduct may also be a tort.” Furthermore, the Superior Court found a line of cases instructive in support of public policy, stating that “when attorneys enter into a contract to provide legal services, they undertake a contractual duty to provide competent legal services and clients have the right to enforce such a duty. Even if the agreement does not explicitly include this language, it is a condition that both parties contemplate and should be a basis for a client to assert a breach of contract claim.” The court held that there is an implicit duty on attorneys who enter into contracts to perform legal services to do so in a competent manner. This implied duty alone can be enough to satisfy the duty element of a breach of contract claim for legal services.
Justice Stabile dissented. In doing so, the Justice noted that the decision, similarly to Swatt, “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.” Additionally, the dissent points to Bruno v. Erie Ins. Co., 630 A.3d 48 (Pa. 2014), explaining that although Bruno allowed for both causes of action to go forward where the tort is committed in the process of preforming a contractual duty, it did not diminish the gist of the action doctrine where the sole duty breached is one stemming from a contract.
On July 13, 2026, the Supreme Court of Pennsylvania granted an allowance of appeal from the Superior Court to address the following questions: 1) “Does the Gist[-]of[-]the[-]Action Doctrine apply to contract claims and prohibit a plaintiff from recasting a claim of negligence as a breach of contract, when a plaintiff does not allege a breach of a specific term of the contract?” 2) Does an implied duty to represent a client in a manner that comports with professional standards exist in all written agreements to perform legal services for a client, and if that duty alone may satisfy the duty element of a claim for breach of a contract for legal services without a breach of a specific executory promise in the agreement? Poteat, A. v. Asteak, G. of: Asteak, G (Pa. 2026) (order dated July. 13, 2026). The decision has potential to reconcile the inconsistent authority on the gist of the action doctrine over the year and clarify the remaining vitality, or lack thereof.
The Poteat decision can be found here.
For additional questions, please contact Jack Abdalla, Esq. and/or Glen Shikunov, Esq.
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