Breach of contract or professional negligence…who cares? Often a dissatisfied former client may raise a malpractice claim under claims of breach of contract and professional negligence. Both claims may rest on similar, if not the same, set of facts. Historically, the gist of the action doctrine would bar a plaintiff from recasting an ordinary tort claim into a breach of contract claim. This distinction can be key in Pennsylvania, and elsewhere, where the statute of limitations is only two years for tort but four years for contract.

On July 13, 2026, the Pennsylvania Supreme Court agreed to consider the issue. Specifically, the court will review whether the gist of the action doctrine bars a plaintiff from suing an attorney for breach of contract, rather than legal malpractice, based on the attorney’s alleged violation of an implied duty of care under their contract for legal services.

In 2014, in Bruno v. Erie Insurance, the Pennsylvania Supreme Court decided that the gist of the action doctrine bars a plaintiff from recasting a negligence claim as a breach of contract claim. The doctrine bars tort claims that: (1) arise solely from a contract between the parties; (2) where the duties allegedly breached were created and grounded in the contract itself; (3) where the liability stems from a contract; and (4) where the tort claim essentially duplicates a breach of contract claim or the success of which is wholly dependent on the terms of the contract.

To determine whether a claim is truly one in tort or for breach of contract, Pennsylvania courts consistently look to “the nature of the duty alleged to have been breached.” Courts regard a claim to be in tort if the claim involves the defendant’s violation of “a broader social duty owed to all individuals,” that is, a duty “imposed by the law of torts and, hence, exist[ent] regardless of [any] contract.” If the duty breached was one created by a specific term of the contract between the parties – i.e., “a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract” – courts regard the claim as one for breach of contract. Id. Last year, however, the PA Superior Court limited Bruno’s reach in Poteat v. Asteak.

In Poteat, that court held that, notwithstanding the gist of the action doctrine, an attorney’s implied duty to represent a client in a manner that comports with professional standards alone may satisfy the duty element of a claim for breach of contract.

The PA Supreme Court recently granted a Petition for Allowance of Appeal of Poteat to decide the following issues: