gist of the action doctrine in Pennsylvania

2025“Fraud must be averred with particularity by the following elements: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused.” Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992) (emphasis added). - 50 - J-E04002-24 Two years later, this Court adopted the gist-of-the-action doctrine from federal cases in eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10 (Pa. Super. 2002).

2025Pa. 1978), the following quote: Although they derive from a common origin, distinct differences between civil actions for tort and contract breach have developed (Footnote Continued Next Page) - 51 - J-E04002-24 The gist-of-the-action doctrine, as eToll adopted it, “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” eToll, 811 A.2d at 14 .

2023See Hart, 884 A.2d at 341 (concluding that appellant’s fraud claims are barred under the gist of the action doctrine because they are wholly dependent on the terms of the contract, which is the main cause of action).

2015Alternatively, Lee raises a demurrer to Ferraro’s claim for tortious interference with contractual relationship under the gist of the action doctrine. “[T]he “gist of the action” doctrine[...] operates to preclude a plaintiff from re-casting ordinary breach of contract claims into tort claims.” Hart v. Arnold, 884 A.2d 316, 339 (Pa. Super. 2005).

2023The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; and 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim. ____________________________________________ 2 Ziegler does not raise any argument relating to his breach of contract claim. -7- J-S39007-22 Reardon v. Allegheny C

2018As explained in Reardon v. Allegheny College, 926 A.2d 477 (Pa. Super. 2007), appeal denied, 947 A.2d 738 (Pa. 2008): The gist of the action doctrine acts to foreclose tort claims: 1) arising solely from the contractual relationship between the parties; 2) when the alleged duties breached were grounded in the contract itself; 3) where any liability stems from the contract; [or] 4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim.

2026As discussed supra, our Supreme Court in Bruno, supra, explained that the gist of the action doctrine “provides that an alleged tort claim against a party to a contract, based on the party’s actions undertaken in the course of carrying out a contractual agreement, is barred when the gist [(i.e., “the ground of a legal action” or “the act of the offending party, by means of which the injury is inflicted”)] or gravamen [(i.e., “the substantial point [] of a claim, grievance, or complaint”)] of the cause of action stated in the complaint, although sounding in tort, is, in actuality, a claim again

2026As discussed supra, our Supreme Court in Bruno, supra, explained that the gist of the action doctrine “provides that an alleged tort claim against a party to a contract, based on the party’s actions undertaken in the course of carrying out a contractual agreement, is barred when the gist [(i.e., “the ground of a legal action” or “the act of the offending party, by means of which the injury is inflicted”)] or gravamen [(i.e., “the substantial point [] of a claim, grievance, or complaint”)] of the cause of action stated in the complaint, although sounding in tort, is, in actuality, a claim again

2026Because our Supreme Court has not denounced the gist of the action doctrine in Pennsylvania jurisprudence, we are required to examine its applicability to the case sub judice. -9- J-A06008-26 Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010), appeal denied, 14 A.3d 829 (Pa. 2010).

2024The gist of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into tort claims.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010).

2016See Knight v. Springfield Hyundai, 81 A.3d 940, 951 (Pa.Super.2013) (declining to apply the gist of the action doctrine in part because the “alleged representations by [a]ppellees occurred prior [to] the signing of any contract”); Bohler-Uddeholm Am., Inc. v. *472 Ellwood Group, Inc., 247 F.3d 79, 104 (3rd Cir.Pa.2001) (concluding that the breach of fiduciary duty claim was not barred by the gist of the action doctrine), 11 cert. denied, 534 U.S. 1162 , 122 S.Ct. 1173 , 152 L.Ed.2d 116 (2002); see also generally Reading Radio, 833 A.2d at 211 (finding breach of fiduciary duty of loyalty, inten

2013“However, claims for breach of fiduciary duty and breach of contract can coexist if the fiduciary duty is based on duties imposed as a matter of social policy and if the fiduciary duty is not based on a contractual agreement between the parties.” Id. (emphasis added) (minority partners’ claims for breach of fiduciary duty against majority partner for scheduling its own development projects before those of the partnership were not barred by the gist of the action doctrine, because claim was based on social policy, and alleged misconduct was not covered by any express term of the partnership agr

2022DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402 , 413 (Pa. Super. 2012) (cleaned up). - 55 - J-A08008-22 with [Appellants’] property interests does not stem from any contract[,]” and they assert that “the gist of the action doctrine can have no application when all of [Appellants’] claims are for statutory damages under the UCC.” Appellants’ Brief at 41 (citation omitted); Appellants’ Reply Brief at 11.

2022DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 413 (Pa. Super. 2012) (cleaned up). - 55 - J-A08008-22 with [Appellants’] property interests does not stem from any contract[,]” and they assert that “the gist of the action doctrine can have no application when all of [Appellants’] claims are for statutory damages under the UCC.” Appellants’ Brief at 41 (citation omitted); Appellants’ Reply Brief at 11.

2026Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 1212 (Pa. Super. 2010) (citations, quotation marks, and emphasis omitted).

2017Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 1212 (Pa. Super. 2010) (citation and quotation marks omitted; emphasis in original).

2025See Dittman v. UPMC, 196 A.3d 1036 , 1057 n.4 (Pa. 2018) (Saylor, J., concurring and dissenting) (“The gist of the action doctrine serves as a means by which courts categorize claims to maintain the distinction ____________________________________________ 1 The Majority has commendably tracked down when and how “the gist of the action” haphazardly came to be referred to as a “doctrine” about 26 years ago, in Sunquest Info Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651 (W.D.

2025See Dittman v. UPMC, 196 A.3d 1036 , 1057 n.4 (Pa. 2018) (Saylor, J., concurring and dissenting) (“The gist of the action doctrine serves as a means by which courts categorize claims to maintain the distinction ____________________________________________ 1 The Majority has commendably tracked down when and how “the gist of the action” haphazardly came to be referred to as a “doctrine” about 26 years ago, in Sunquest Info Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651 (W.D.

2025See Pittsburgh Construction Co, v. 26 Griffith, 834 A.2d 572 ( Pa. Super. 2003) ( holding that the plaintiff could not interject a claim for tortious conversion into an action that is decidedly contractual). 5.

2018See Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581-582 (Pa. Super. 2003).

2024Cf. Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923, 931 (Pa. Super. 2013) (finding waiver of a gist of the action argument where the appellant failed to raise the issue “at trial or in post-trial motions”) (emphasis added); Knight v. Springfield Hyundai, 81 A.3d 940, 944 (Pa. Super. 2013) (appellee raising the gist of the action doctrine in preliminary objections). - 17 - J-A03021-23 the parties.

2016See Knight v. Springfield Hyundai, 81 A.3d 940, 951 (Pa.Super.2013) (declining to apply the gist of the action doctrine in part because the “alleged representations by [a]ppellees occurred prior [to] the signing of any contract”); Bohler-Uddeholm Am., Inc. v. *472 Ellwood Group, Inc., 247 F.3d 79, 104 (3rd Cir.Pa.2001) (concluding that the breach of fiduciary duty claim was not barred by the gist of the action doctrine), 11 cert. denied, 534 U.S. 1162 , 122 S.Ct. 1173 , 152 L.Ed.2d 116 (2002); see also generally Reading Radio, 833 A.2d at 211 (finding breach of fiduciary duty of loyalty, inten

2025See Dittman v. UPMC, 196 A.3d 1036 , 1057 n.4 (Pa. 2018) (Saylor, J., concurring and dissenting) (“The gist of the action doctrine serves as a means by which courts categorize claims to maintain the distinction ____________________________________________ 1 The Majority has commendably tracked down when and how “the gist of the action” haphazardly came to be referred to as a “doctrine” about 26 years ago, in Sunquest Info Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651 (W.D.

2025See Dittman v. UPMC, 196 A.3d 1036 , 1057 n.4 (Pa. 2018) (Saylor, J., concurring and dissenting) (“The gist of the action doctrine serves as a means by which courts categorize claims to maintain the distinction ____________________________________________ 1 The Majority has commendably tracked down when and how “the gist of the action” haphazardly came to be referred to as a “doctrine” about 26 years ago, in Sunquest Info Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651 (W.D.

2023The Johnsons next claim that the trial court abused its discretion in applying the gist of the action doctrine and barring their product liability claims.4 “Implied warranties are implied by law to protect buyers from loss where goods purchased are below commercial standards.” Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 357 (Pa. Super. 2015).

2023The Johnsons next claim that the trial court abused its discretion in applying the gist of the action doctrine and barring their product liability claims.4 “Implied warranties are implied by law to protect buyers from loss where goods purchased are below commercial standards.” Barton v. Lowe’s Home Centers, Inc., 124 A.3d 349, 357 (Pa. Super. 2015).

2020Kelly Sys., Inc. v. Leonard S. Fiore, Inc., 198 A.3d 1087, 1092-93 (Pa. Super. 2018), citing Bruno v. Erie Ins.

2020Kelly Sys., Inc. v. Leonard S. Fiore, Inc., 198 A.3d 1087, 1092-93 (Pa. Super. 2018), citing Bruno v. Erie Ins.

2013THI’s Claims for Breach of Fiduciary Duty and Breach of the Implied Covenant of Good Faith and Fair Dealing “A breach of fiduciary duty claim is barred by the gist of the action doctrine if the fiduciary duty alleged is grounded in contract obligations.” Alpart v. General Land Partners, Inc., 574 F. Supp. 2d 491, 499 (E.D.

2013“A breach of fiduciary duty claim is barred by the gist of the action doctrine if the fiduciary duty alleged is grounded in contract obligations.” Alpart v. General Land Partners, Inc., 574 F. Supp. 2d 491, 499 (E.D.

2007Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479 , 854 A.2d 425, 433 (2004) (affirming a trial court’s decision to dismiss purportedly quasitortious claims brought under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et. seq. on alternate grounds without expressly stating as much and noting that the trial court relied on the gist of the action doctrine in originally dismissing said claims); Hart v. Arnold, 884 A.2d 316, 339 (Pa.Super.2005) (affirming the dismissal of a fraud in the performance claim as collateral to the main cause of action alleging breach of con

2007Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479 , 854 A.2d 425, 433 (2004) (affirming a trial court’s decision to dismiss purportedly quasitortious claims brought under the Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et. seq. on alternate grounds without expressly stating as much and noting that the trial court relied on the gist of the action doctrine in originally dismissing said claims); Hart v. Arnold, 884 A.2d 316, 339 (Pa.Super.2005) (affirming the dismissal of a fraud in the performance claim as collateral to the main cause of action alleging breach of con

2014See Brunos’ Brief at 16-18 (comparing Bash v. Bell Tel, 411 Pa.Super. 347 , 601 A.2d 825 (1992) (viewing critical difference between tort and contract actions as dependent on whether duty breached was imposed by the agreement of the parties, or imposed by law as a matter of social policy, and holding that customer’s negligence claim against telephone company for failing to print advertisement in yellow pages directory for which customer had contracted was properly dismissed under the gist of the action doctrine, as the duty allegedly breached was a private contractual one), and eToll Inc. v. E

2014See Brunos’ Brief at 16-18 (comparing Bash v. Bell Tel, 411 Pa.Super. 347 , 601 A.2d 825 (1992) (viewing critical difference between tort and contract actions as dependent on whether duty breached was imposed by the agreement of the parties, or imposed by law as a matter of social policy, and holding that customer’s negligence claim against telephone company for failing to print advertisement in yellow pages directory for which customer had contracted was properly dismissed under the gist of the action doctrine, as the duty allegedly breached was a private contractual one), and eToll Inc. v. E

2026Balmer & Co. v. Frank Crystal & Co., Inc., 148 A.3d 454, 468 (Pa. Super. 2016).

2017Balmer & Co. v. Frank Crystal & Co., Inc., 148 A.3d 454, 468 (Pa. Super. 2016), appeal denied, No. 725 MAL 2016, 169 A.3d 9 , 2017 WL 1015542 (Pa. Mar. 14, 2017).

2026Thus, “the nature of the duty alleged to have been breached, as established by the underlying averments supporting the claim in a plaintiff’s - 10 - J-A06008-26 complaint[ is] the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract.” Id. at 68 ; see also Swatt, 342 A.3d at 51 (stating, “Bruno re-calibrated the gist-of-the-action doctrine as a test based on the duty that the defendant allegedly breached”); Spiritrust, 314 A.3d at 908 (stating, “courts must focus on how the plaintiff’s pleadings described the defendant’s legal duties”);

2024Accordingly, the trial court committed no errors of law, and Aberra’s argument merits no relief.9 ____________________________________________ 9 Aberra cites Patel v. Kandola Real Estate, LP, 271 A.3d 421, 431 (Pa. 2021), in which this Court affirmed the trial court’s grant of summary judgment in favor of two co-defendants, and concluded that claims for tortious interference and conversion stemmed from contractual obligations and were therefore barred by the gist of the action doctrine.

2025“Fraud must be averred with particularity by the following elements: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused.” Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992) (emphasis added). - 50 - J-E04002-24 Two years later, this Court adopted the gist-of-the-action doctrine from federal cases in eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10 (Pa. Super. 2002).

2025“Fraud must be averred with particularity by the following elements: 1) a misrepresentation; 2) a fraudulent utterance of it; 3) the maker’s intent that the recipient be induced thereby to act; 4) the recipient’s justifiable reliance on the misrepresentation; and 5) damage to the recipient proximately caused.” Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. 1992) (emphasis added). - 50 - J-E04002-24 Two years later, this Court adopted the gist-of-the-action doctrine from federal cases in eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10 (Pa. Super. 2002).

2025See Strausser v. PRAMCO, III, 944 A.2d 761, 767-68 (Pa. Super. 2008) (fraud claim properly dismissed under gist of the action doctrine where alleged fraud directly related to duty arising from underlying contractual rights as defined by loan agreement and -9- J-S36003-24 mortgage, and all claims could be resolved only through determination of those contractual rights).

2011Under this conceptual analysis, “[t]ort 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.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa. Super. 2010) (quoting eToll, supra); Busy Bee, Inc., supra. The gist of the action doctrine acts to foreclose tort claims: (1) arising solely from the contractual relationship between the parties; (2) when the alleged duties breached were grounded in the contract itself; (3) where any liability stems from the

2025In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004), the gist of the action doctrine was not mentioned at all.

2025In Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004), the gist of the action doctrine was not mentioned at all.

2024Cf. Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923, 931 (Pa. Super. 2013) (finding waiver of a gist of the action argument where the appellant failed to raise the issue “at trial or in post-trial motions”) (emphasis added); Knight v. Springfield Hyundai, 81 A.3d 940, 944 (Pa. Super. 2013) (appellee raising the gist of the action doctrine in preliminary objections). - 17 - J-A03021-23 the parties.

2013“The gist of the action doctrine bars a plaintiff from re-casting ordinary breach of contract claims into tort claims.” Empire Trucking Co., Inc. v. Reading Anthracite Coal Co., 71 A.3d 923 , 931 n. 2 (Pa.Super.2013) (citation omitted).

2023Indeed, our Court has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party, see, e.g., Bloomsburg Mills v. Sordoni, 401 Pa. 358 , 164 A.2d 201 (1960) (finding evidence sufficient for jury to have concluded architect was negligent in failing to exercise reasonable care in performance of duties imposed by design contract), or to a third person, see, e.g., Evans [v. Otis Elevator Co., 403 Pa. 13, 18 , 168 A.2d 573, 575 (1961)] (elevator repair company liable f

2023Indeed, our Court has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party, see, e.g., Bloomsburg Mills v. Sordoni, 401 Pa. 358 , 164 A.2d 201 (1960) (finding evidence sufficient for jury to have concluded architect was negligent in failing to exercise reasonable care in performance of duties imposed by design contract), or to a third person, see, e.g., Evans [v. Otis Elevator Co., 403 Pa. 13, 18 , 168 A.2d 573, 575 (1961)] (elevator repair company liable f

2023In Bruno, our Supreme Court examined the gist of the action doctrine and noted: [O]ur prior decisions in Zell [v. Arnold, 2 Pen. & W. 292 , 1830 WL 3261 (Pa. 1830)] and Krum [v. Anthony, 115 Pa. 431 , 8 A. 598, 600 (1887)] underscore that the mere existence of a contract between two parties does not, ipso facto, classify a claim by a contracting party for injury or loss suffered as the result of actions of the other party in performing the contract as one for breach of contract.

2023In Bruno, our Supreme Court examined the gist of the action doctrine and noted: [O]ur prior decisions in Zell [v. Arnold, 2 Pen. & W. 292 , 1830 WL 3261 (Pa. 1830)] and Krum [v. Anthony, 115 Pa. 431 , 8 A. 598, 600 (1887)] underscore that the mere existence of a contract between two parties does not, ipso facto, classify a claim by a contracting party for injury or loss suffered as the result of actions of the other party in performing the contract as one for breach of contract.

2023The gist of the action doctrine “maintain[s] the conceptual distinction between breach of contract claims and tort claims[.]” McShea v. City of Philadelphia, 606 Pa. 88, 96 , 995 A.2d 334 , 339 (2010) (quoting eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.Super. 2002)). “[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.” Bruno, supra at 103 , 106 A.3d at 63 .

2023The gist of the action doctrine “maintain[s] the conceptual distinction between breach of contract claims and tort claims[.]” McShea v. City of Philadelphia, 606 Pa. 88, 96 , 995 A.2d 334 , 339 (2010) (quoting eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa.Super. 2002)). “[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.” Bruno, supra at 103 , 106 A.3d at 63 .