[Update, September 21, 2013: More than five years after the below post, the Pennsylvania Supreme Court has granted allocatur on a “gist of the action” case. Read more at Tort Talk. The question presented, reformed slightly by me for clarity, is:

Does the “gist of the action” doctrine bar recovery on the Brunos’ negligence claim against Erie Insurance Company where their claim was not based on the underlying insurance contract but instead upon independent, affirmative, and gratuitous acts of the Insurer and its expert when they summarily and without analysis or testing told Mr. Bruno that the mold infestation in the home was not dangerous and described the dangers of mold as a media exaggeration?”

I don’t know the underlying facts, but I’m assuming the plaintiff ended up physically injured. If that’s the case, then I would most certainly hope the Pennsylvania Supreme Court finds the ‘gist of the action’ doctrine does not preclude the plaintiff’s negligence claim. To hold otherwise would be to allow insurers to mislead insureds about health risks, without consequence.]

So sayeth 3si Sec. Sys. v. Protek, 2008 U.S. Dist. LEXIS 56283 (E.D. Pa. July 23, 2008), more routine commercial litigation:

The gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, Inc. v. Elias/Savion Adver., 811 A.2d 10, 14 (Pa. Super. Ct. 2002) citing Bash v. Bell Tel. Co., 601 A.2d 825, 829 (Pa. Super. Ct. 1992). The difference between a cause of action for tort and breach of contract is that “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, 601 A.2d at 829. A breach of contract may give rise to a tort claim only when defendant’s wrongful conduct is the gist of the action, and the contract is collateral. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 582 (Pa. Super. Ct. 2003) citing Bash, 601 A.2d at 829)

To successfully prove a negligence claim a plaintiff must demonstrate the following elements: (1) a duty of care was owed by defendant; (2) defendant breached this duty; and (3) the breach resulted in injury. McCandless v. Edwards, 908 A.2d 900, 904 (Pa. Super. Ct. 2006) (citations omitted). Because Defendant’s obligation to provide Plaintiff with FlexPac batteries arose from the contract and not from a general duty of care, Plaintiff’s negligence claim should be barred by the gist of the action doctrine.

In Factory Market v. Schuller Intl, defendant guaranteed plaintiff it would install a watertight roof. 987 F. Supp. 387, 388 (E.D. Pa. Jan. 9, 1997). Defendant promised to pay for any repairs needed to maintain the roof in a watertight condition. Id. at 389. From the onset “the roof was plagued with leaking problems,” which defendant attempted to fix on a number of occasions. Id. Upon various unsuccessful  attempts by defendant to repair the roof, plaintiff brought suit against defendant alleging breach of contract, negligence, and fraud. Id. at 391. The court held that plaintiff’s negligence claim sounded more in contract than in tort. Id. at 394. Plaintiff merely alleged that defendant’s repairs were negligently performed, and as a result the roof was not watertight despite defendant’s guarantee. Id. at 394-95. The court ruled that defendant did not owe plaintiff a duty of care; rather defendant’s obligation to repair the faulty roof was imposed by way of the contract, and without the contract plaintiff “simply would not have [had] a claim.” Id. at 395. Therefore, the court barred plaintiff’s negligence claim. Id.

(emphasis added).

Without fail, defendants raise the “gist of the action” doctrine in every single breach of contract case that also includes other claims. It doesn’t matter if the other claim is unjust enrichment, tortious interference, fraud, defamation, professional malpractice, or any other entirely appropriate claim that can rest alongside a breach of contract. If there’s a contract, and there’s another claim, the preliminary objections / 12(b)(6) are inevitable.

And it’s usually wrong.

The doctrine is simple: the “gist of the action” doctrine precludes negligence claims where, under the facts alleged, the defendant has no duty to the plaintiff except for those created by contract. The “gist” is contractual — there are no duties between the parties except for those created by the contract.

A reminder: everyone has a duty not to defraud others. Everyone has a duty not to tortious interfere in others’ business. Everyone has a duty not to defame others. If someone defrauded you, that’s wrong; you don’t need to first have a signed and sealed Agreement Not To Defraud Me.

Ergo, there’s really only one instance in which, at the complaint stage, the “gist of the action” doctrine applies: where a complaint alleges breach of contract and negligence based solely upon that contract. That a plaintiff cannot do.

Fraud and breach of contract? That’s fine — indeed, they’re usually entirely appropriate forms of alternative relief which a plaintiff should allege if they have the factual basis.

But if you’re alleging negligence, there must be an independent duty outside from the contract itself.

 

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