Hawbaker, J. v. Nottingham Village
This text of 2025 Pa. Super. 138 (Hawbaker, J. v. Nottingham Village) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
J-E04002-24 2025 PA Super 138
ANN MARIE SWATT, PERSONAL : IN THE SUPERIOR COURT OF REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : Appellant : : v. : : NOTTINGHAM VILLAGE; : NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; : LEEDS HEALTHCARE SERVICES, : INC.; SYNERGY GRANDVIEW : PHARMACY, LLC; AND FREDERICK : KESSLER : No. 1506 MDA 2021
Appeal from the Order Entered October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00830
JANICE HAWBAKER, ESQ., : IN THE SUPERIOR COURT OF EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : v. : : NOTTINGHAM VILLAGE; : NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; AND : LEEDS HEALTHCARE SERVICES, INC. : : APPEAL OF: ANN MARIE SWATT, : PERSONAL REPRESENTATIVE OF THE : ESTATE OF MADLYN BLUSIUS : No. 1507 MDA 2021
Appeal from the Order Dated October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00005 J-E04002-24
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED: JULY 2, 2025
I. Introduction
In this survival action, Ann Marie Swatt, as Personal Representative of
her Aunt Madlyn Blusius’ Estate, appeals from the order granting summary
judgment in favor of the Defendants on her claims for malpractice and breach
of contract. We granted en banc review in this case and Poteat v. Asteak,
729 EDA 2023, 2024 WL 2813104 (Pa. Super. 2024), to determine whether
the gist-of-the-action doctrine allows trial courts to convert contract claims
into tort claims. See Superior Court Order, 7/2/24, at 2. As we explain, it
does not. Thus, we partially reverse the grant of summary judgment.
II. Factual Background
In 2006, Madlyn1 resided in an assisted-living center. She was “in really
good shape.” Deposition of Ann Marie Swatt, 7/24/19, at 45. Unfortunately,
Madlyn fell, fractured her hip, injured her right knee, and had to undergo
reconstructive surgery.
Thereafter, on July 20, 2006, Madlyn’s sister, Elizabeth Swatt, moved
Madlyn into a nursing-care facility in Northumberland County. Leeds Health
Care Services, Inc. owned and ran the nursing home, known as Nottingham
Village. Madlyn’s admission was “for rehabilitation, to learn how to walk again ____________________________________________
1 We refer to Elizabeth Swatt, Ann Marie Swatt, and Madlyn Blusius by their
first names; we refer to Elizabeth and Ann Marie collectively as “the Swatts.”
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after a hip fall,” and to heal her knee. Id. at 21. Elizabeth, signing as the
“Responsible Party” for Madlyn, executed a written contract with the Nursing
Home, the “Nottingham Village Nursing Center, Admission Agreement:
Nursing Care.” Ann Marie’s Opposition to Nursing Home’s Motion for Summary
Judgment, Ex. A (“Contract”).2
Under the Contract, the Nursing Home agreed to give a “room, meals,
housekeeping services, use of walker or wheelchair when medically necessary,
nursing care, linen and bedding, and such other personal services as may be
required for the health, safety, welfare, good grooming and well-being of”
Madlyn. Id. Madlyn’s rights as the resident were “primarily for services, with
a contractual right of occupancy.” Id.
The Swatts visited Madlyn several times a month during the five-and-
half years that Madlyn lived there. Deposition of Ann Marie Swatt, 7/24/19,
at 16-17. Madlyn often complained to them that she disliked the Nursing
Home and wanted to return to the assisted-living center, because “the people
were nasty, and they didn’t care for her.” Id. at 130.
In her deposition, Ann Marie identified several deficiencies in Madlyn’s
care. These problems included an absence of orderlies and nurses during the
Swatts’ visits, a failure by the Nursing Home to feed and provide water to ____________________________________________
2 The contract of record is unpaginated, and Ann Marie omitted at least one
page of it from Exhibit A. The bottom of the third page ends in the middle of Section 11, and the next page begins in the middle of subsection 12(d). Hence, the contract’s page numbers after the missing page or pages are unknown. Therefore, we will not provide page citations for this document.
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Madlyn, damage to Madlyn’s teeth and gums, the appearance of new bruises
and sores, failure to address pain in Madlyn’s knee, lack of improvement or
rehabilitation, soiled bed linens, and overmedication. Ann Marie complained
and asked to speak with a nurse, but no one called her back.
These incidents occurred “a little bit at a time” while Madlyn resided in
the Nursing Home. Id. at 49-50. Because of the Nursing Home’s inaction and
negligence, Madlyn “suffered dearly” and had “out of control” pain. Id. at 75.
This caused “loss of her ability to be able to perform activities of daily living,
loss of her ability to walk, and her death.” Id. at 105. On January 5, 2012,
Madlyn’s kidneys failed, and she died in the Nursing Home, at the age of 91.
See id. at 41, 76.
III. Procedural History
These consolidated appeals, concerning Madlyn’s death, have a lengthy
and convoluted procedural history. In fact, multiple plaintiffs attempted to
sue the Nursing Home and its Pharmacy, and they received three different
docket numbers from the Prothonotary of Northumberland County. One of
those cases was dismissed at preliminary objections, and it is not a subject of
this appeal.3
The first of the other two dockets began when the Executrix of Madlyn’s
Will, Janice M. Hawbaker, Esq., filed a praecipe for writ of summons. Seven ____________________________________________
3 See Elizabeth Jane Swatt & Ann Marie Swatt v. Nottingham Village,
CV-2014-25 (C.C.P. Northumberland) (dismissing complaint with prejudice upon preliminary objections, because the Swatts were not Madlyn’s immediate family members; therefore, they lacked capacity to sue for wrongful death).
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weeks after Madlyn’s death, Attorney Hawbaker raised an Estate for Madlyn
in Franklin County and received letters testamentary. See In re Estate of
Blusius, Register of Wills’ 3/21/12 Short Certificate, 2012-0054 (C.C.P.
Franklin 2012). As Executrix, Attorney Hawbaker hired J. McDowell Sharpe,
Esq. to sue the Nursing Home.
Nearly two years after Madlyn’s death, on January 2, 2014, Attorney
Sharpe filed a praecipe for the prothonotary to issue a writ of summons to the
Nursing Home. He named Attorney Hawbaker, as “Executrix of the Estate of
Madlyn Blusius,” as the plaintiff. Hawbaker v. Nottingham Village,
Praecipe for Summons at 1, CV-2014-5 (C.C.P. Northumberland 2014).4 On
March 21, 2014, the Nursing Home had the prothonotary issue a rule for
Attorney Hawbaker to file a complaint.
While that rule was pending, a dispute arose in the Orphans’ Court of
Franklin County between Attorney Hawbaker and the Swatts over who should
administer Madlyn’s estate. The orphans’ court ruled that Attorney Hawbaker
had a “conflicting interest or . . . situation where [her] functioning as a
fiduciary for a temporary period may not be in the best interests of the estate”
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J-E04002-24 2025 PA Super 138
ANN MARIE SWATT, PERSONAL : IN THE SUPERIOR COURT OF REPRESENTATIVE OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : Appellant : : v. : : NOTTINGHAM VILLAGE; : NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; : LEEDS HEALTHCARE SERVICES, : INC.; SYNERGY GRANDVIEW : PHARMACY, LLC; AND FREDERICK : KESSLER : No. 1506 MDA 2021
Appeal from the Order Entered October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00830
JANICE HAWBAKER, ESQ., : IN THE SUPERIOR COURT OF EXECUTRIX OF THE ESTATE OF : PENNSYLVANIA MADLYN BLUSIUS : : v. : : NOTTINGHAM VILLAGE; : NOTTINGHAM MANAGEMENT, LLC; : NOTTINGHAM VILLAGE RETIREMENT : CENTER, LLC; NOTTINGHAM VILLAGE : HEALTHCARE SERVICES, INC.; AND : LEEDS HEALTHCARE SERVICES, INC. : : APPEAL OF: ANN MARIE SWATT, : PERSONAL REPRESENTATIVE OF THE : ESTATE OF MADLYN BLUSIUS : No. 1507 MDA 2021
Appeal from the Order Dated October 12, 2021 In the Court of Common Pleas of Northumberland County Civil Division at No(s): CV-2014-00005 J-E04002-24
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION BY KUNSELMAN, J.: FILED: JULY 2, 2025
I. Introduction
In this survival action, Ann Marie Swatt, as Personal Representative of
her Aunt Madlyn Blusius’ Estate, appeals from the order granting summary
judgment in favor of the Defendants on her claims for malpractice and breach
of contract. We granted en banc review in this case and Poteat v. Asteak,
729 EDA 2023, 2024 WL 2813104 (Pa. Super. 2024), to determine whether
the gist-of-the-action doctrine allows trial courts to convert contract claims
into tort claims. See Superior Court Order, 7/2/24, at 2. As we explain, it
does not. Thus, we partially reverse the grant of summary judgment.
II. Factual Background
In 2006, Madlyn1 resided in an assisted-living center. She was “in really
good shape.” Deposition of Ann Marie Swatt, 7/24/19, at 45. Unfortunately,
Madlyn fell, fractured her hip, injured her right knee, and had to undergo
reconstructive surgery.
Thereafter, on July 20, 2006, Madlyn’s sister, Elizabeth Swatt, moved
Madlyn into a nursing-care facility in Northumberland County. Leeds Health
Care Services, Inc. owned and ran the nursing home, known as Nottingham
Village. Madlyn’s admission was “for rehabilitation, to learn how to walk again ____________________________________________
1 We refer to Elizabeth Swatt, Ann Marie Swatt, and Madlyn Blusius by their
first names; we refer to Elizabeth and Ann Marie collectively as “the Swatts.”
-2- J-E04002-24
after a hip fall,” and to heal her knee. Id. at 21. Elizabeth, signing as the
“Responsible Party” for Madlyn, executed a written contract with the Nursing
Home, the “Nottingham Village Nursing Center, Admission Agreement:
Nursing Care.” Ann Marie’s Opposition to Nursing Home’s Motion for Summary
Judgment, Ex. A (“Contract”).2
Under the Contract, the Nursing Home agreed to give a “room, meals,
housekeeping services, use of walker or wheelchair when medically necessary,
nursing care, linen and bedding, and such other personal services as may be
required for the health, safety, welfare, good grooming and well-being of”
Madlyn. Id. Madlyn’s rights as the resident were “primarily for services, with
a contractual right of occupancy.” Id.
The Swatts visited Madlyn several times a month during the five-and-
half years that Madlyn lived there. Deposition of Ann Marie Swatt, 7/24/19,
at 16-17. Madlyn often complained to them that she disliked the Nursing
Home and wanted to return to the assisted-living center, because “the people
were nasty, and they didn’t care for her.” Id. at 130.
In her deposition, Ann Marie identified several deficiencies in Madlyn’s
care. These problems included an absence of orderlies and nurses during the
Swatts’ visits, a failure by the Nursing Home to feed and provide water to ____________________________________________
2 The contract of record is unpaginated, and Ann Marie omitted at least one
page of it from Exhibit A. The bottom of the third page ends in the middle of Section 11, and the next page begins in the middle of subsection 12(d). Hence, the contract’s page numbers after the missing page or pages are unknown. Therefore, we will not provide page citations for this document.
-3- J-E04002-24
Madlyn, damage to Madlyn’s teeth and gums, the appearance of new bruises
and sores, failure to address pain in Madlyn’s knee, lack of improvement or
rehabilitation, soiled bed linens, and overmedication. Ann Marie complained
and asked to speak with a nurse, but no one called her back.
These incidents occurred “a little bit at a time” while Madlyn resided in
the Nursing Home. Id. at 49-50. Because of the Nursing Home’s inaction and
negligence, Madlyn “suffered dearly” and had “out of control” pain. Id. at 75.
This caused “loss of her ability to be able to perform activities of daily living,
loss of her ability to walk, and her death.” Id. at 105. On January 5, 2012,
Madlyn’s kidneys failed, and she died in the Nursing Home, at the age of 91.
See id. at 41, 76.
III. Procedural History
These consolidated appeals, concerning Madlyn’s death, have a lengthy
and convoluted procedural history. In fact, multiple plaintiffs attempted to
sue the Nursing Home and its Pharmacy, and they received three different
docket numbers from the Prothonotary of Northumberland County. One of
those cases was dismissed at preliminary objections, and it is not a subject of
this appeal.3
The first of the other two dockets began when the Executrix of Madlyn’s
Will, Janice M. Hawbaker, Esq., filed a praecipe for writ of summons. Seven ____________________________________________
3 See Elizabeth Jane Swatt & Ann Marie Swatt v. Nottingham Village,
CV-2014-25 (C.C.P. Northumberland) (dismissing complaint with prejudice upon preliminary objections, because the Swatts were not Madlyn’s immediate family members; therefore, they lacked capacity to sue for wrongful death).
-4- J-E04002-24
weeks after Madlyn’s death, Attorney Hawbaker raised an Estate for Madlyn
in Franklin County and received letters testamentary. See In re Estate of
Blusius, Register of Wills’ 3/21/12 Short Certificate, 2012-0054 (C.C.P.
Franklin 2012). As Executrix, Attorney Hawbaker hired J. McDowell Sharpe,
Esq. to sue the Nursing Home.
Nearly two years after Madlyn’s death, on January 2, 2014, Attorney
Sharpe filed a praecipe for the prothonotary to issue a writ of summons to the
Nursing Home. He named Attorney Hawbaker, as “Executrix of the Estate of
Madlyn Blusius,” as the plaintiff. Hawbaker v. Nottingham Village,
Praecipe for Summons at 1, CV-2014-5 (C.C.P. Northumberland 2014).4 On
March 21, 2014, the Nursing Home had the prothonotary issue a rule for
Attorney Hawbaker to file a complaint.
While that rule was pending, a dispute arose in the Orphans’ Court of
Franklin County between Attorney Hawbaker and the Swatts over who should
administer Madlyn’s estate. The orphans’ court ruled that Attorney Hawbaker
had a “conflicting interest or . . . situation where [her] functioning as a
fiduciary for a temporary period may not be in the best interests of the estate”
to pursue the Northumberland County litigation. 20 Pa.C.S.A. § 4301.
____________________________________________
4 The praecipe also named as Defendants the Nursing Home’s corporate entities: Nottingham Village; Nottingham Village, Inc.; Nottingham Village Retirement Center; Nottingham Village Retirement Center, LLC; Nottingham Village Retirement Center Associates; Nottingham Health Care Services, Inc.; and Leeds Health Care Services, Inc.
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The orphans’ court appointed Elizabeth “as Administratrix pro tem of the
Estate of Madlyn M. Blusius for the sole purpose of pursuing any . . . causes
of action against [the Nursing Home] or skilled-care providers who provided
services to [Madlyn] between January 1, 2004 to the date of her death.”
Estate of Blusius, Orphans’ Court Order, 4/11/14, at 1, 46-OC-2013 (C.C.P.
Franklin 2014). However, the court allowed Attorney Hawbaker to remain as
Executrix of the Estate and directed her to cooperate with Elizabeth “in her
capacity as Administratrix pro tem.” Id. The court permitted Elizabeth to
enter a contingent-fee agreement with new counsel, Mary C. Kilgus, Esq., and
to retain any proceeds from the Nursing Home lawsuit, after paying the
inheritance taxes back to the estate. Finally, the Orphans’ Court of Franklin
County ordered Elizabeth to provide a copy of its order “to the Prothonotary
of Northumberland County with a directive to the prothonotary to docket the
order at CV-2014-005.” Id. at 3.
Four days later, on April 15, 2014, counsel for Attorney Hawbaker filed
a Motion to Enlarge Time to File Complaint in Northumberland County. The
motion explained, “Estate proceedings have been contentious and . . . the
Orphans’ Court of [Franklin County] held a status conference, at which an
Administratrix pro tem was appointed to represent the estate in this matter.”
Hawbaker, Motion to Enlarge Time to File Complaint at 2. Attorney Hawbaker
requested more time “to allow for the appointment of Administratrix pro tem
and for her to engage counsel to file a complaint.” Id. Furthermore, “counsel
for the defendants graciously concurred in this request.” Id.
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The motions judge in Northumberland County signed the proposed order
accompanying the motion. The order stated, “Plaintiff Janice M. Hawbaker,
Executrix of the Estate of Madlyn M. Blusius . . . has until May 14, 2014 to file
a complaint in this matter.” T.C.O., 4/16/14, at 1 (emphasis added).
The following week, on April 22, 2014, Attorney Kilgus, Elizabeth’s new
attorney, had her paralegal file the Franklin County order at the
Northumberland County Hawbaker docket. However, Attorney Kilgus did not
enter her appearance or substitute Elizabeth as plaintiff in Hawbaker.
Instead, a few weeks later, on May 13, 2014, Attorney Kilgus filed a
complaint without a docket number. Additionally, the complaint’s caption
made no mention of Madlyn’s estate or Elizabeth’s role as Administratrix pro
tem. The filing also added two new defendants, Synergy Health Systems and
Frederick Kessler (the Nursing Home’s Executive Director).
Attorney Kilgus captioned the complaint as follows:
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ELIZABETH JANE SWATT : IN THE COURT OF COMMON PLAINTIFF : PLEAS OF NORTHUMBERLAND : COUNTY, PENNSYLVANIA : vs. : NO. : NOTTINGHAM VILLAGE, : NOTTINGHAM VILLAGE, INC., : CIVIL ACTION – LAW NOTTINGHAM VILLAGE : RETIREMENT CENTER, LLC, : NOTTINGHAM VILLAGE : MEDICAL MALPRACTICE HEALTHCARE SERVICES, INC.: LEEDS HEALTHCARE : SERVICES, INC., SYNERGY : HEALTH SYSTEMS, And : FREDERICK KESSLER, : DEFENDANTS :
Swatt v. Nottingham Village, Complaint at 1. Thus, the complaint identified
Elizabeth as Plaintiff, in her personal capacity, and the prothonotary wrote
a new docket number on the complaint: i.e., “CV-2014-830.”
Attorney Kilgus paid the filing fee for a new action and had the Sheriff
of Northumberland County serve the complaint on the Nursing Home and
Frederick Kessler. The sheriff also attempted, but failed, to serve it on
Synergy Health Systems.
Thereafter, on May 29, 2014, in Hawbaker, the Nursing Home filed a
praecipe for a judgment of non pros against Attorney Hawbaker for failing to
file a complaint. The Nursing Home’s lawyer attached a certificate of service,
indicating that he had sent a copy of the praecipe to Attorney Sharpe, because
Attorney Sharpe never withdrew his appearance as counsel of record in that
action.
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However, once the prothonotary entered the judgment of non pros, the
prothonotary never served the judgment on Attorney Hawbaker or her
counsel. See Ann Marie’s Notice of Appeal in Hawbaker, CV-2014-5, Ex. C
at 2. There was no entry in the “Service Information” column of the docket
sheet, and the “Comment” column did not reference the fact or the date of
service of the judgment of non pros upon anyone. In the “Comment” for the
entry of judgment, the prothonotary only wrote, “Dated: 5/30/2014 Amount:
$17.00 (cash) For: Nottingham Village (Defendant).” Id.
Next, the Nursing Home filed preliminary objections to the complaint in
Swatt. On June 30, 2014, Attorney Kilgus filed an Amended Complaint on
behalf of Elizabeth and replaced Elizabeth (in her personal capacity) as Plaintiff
with “Elizabeth Jane Swatt, Personal Representative for the Estate of Madlyn
Blusius, Deceased.” See Amended Complaint at 1. The Amended Complaint
also named “Synergy Grandview Pharmacy, LLC” as a defendant, in place of
“Synergy Health Systems.” Id. Additionally, Attorney Kilgus filed a document
to withdraw the appearance of Attorney Sharpe in the Swatt matter, even
though Attorney Sharpe was never counsel of record in that action.5
There were several more rounds of pleadings that resulted in Elizabeth
filing the operative complaint in Swatt. According to the operative complaint,
Elizabeth brought “a medical-malpractice action, a survival action, and a
5 In fact, Attorney Sharpe remains counsel of record for Janice Hawbaker, as
Executrix of the Estate of Madlyn Blusius, the named plaintiff in Hawbaker v. Nottingham Village, CV-2014-5 (C.C.P. Northumberland).
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breach-of-contract action involving the avoidable death of Madlyn . . . .” Third
Amended Complaint at 1. Elizabeth raised multiple counts in tort and contract.
The Pharmacy filed preliminary objections, which the trial court partially
granted. The court dismissed Elizabeth’s contract claim against the Pharmacy,
because it ruled that she could not bring such a claim under the gist-of-the-
action doctrine. See Trial Court Order, 5/14/15, at 1-2.
Then, the Pharmacy sought judgment on the pleadings. It argued that
the two-year statute of limitations barred Elizabeth’s malpractice claim.
Before the trial court disposed of that motion, on September 9, 2015,
Attorney Kilgus withdrew as counsel for Elizabeth. The court stayed the action
while Elizabeth searched for a new lawyer. On November 23, 2015, Matthew
A. Thomsen, Esq. entered his appearance for Elizabeth.
Following briefing and oral argument, on April 8, 2016, the trial court
granted the Pharmacy’s motion for judgment on the pleadings. It ruled that
Eizabeth sued the Pharmacy on May 13, 2014, more than two years after
Madlyn’s death. Six weeks later, Elizabeth moved for reconsideration or, in
the alternative, for a determination of finality. The trial court never ruled upon
that motion.
Five years of discovery ensued, and Elizabeth changed attorneys three
times. Also, due to Elizabeth’s increasing age and declining health, the
Orphans’ Court of Franklin County in Estate of Blusius replaced Elizabeth as
Administratrix pro tem with her daughter, Ann Marie. Thereafter, on February
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24, 2020, Ann Marie, as Personal Representative of the Estate of Madlyn
Blusius, substituted as the Plaintiff in Swatt.
On June 23, 2020, the Nursing Home moved for summary judgment in
Swatt. It contended Ann Marie “failed to satisfy the elements of [her] causes
of action, but has brought survival claims that are barred by the applicable
statute of limitations, and has brought a contract action in an attempt to
shoehorn [Ann Marie’s] time-barred negligence cause of action into a breach-
of-contract claim.” Motion for Summary Judgment at 5.
Ann Marie filed a response opposing the motion and attached six exhibits
as her evidence. These included her deposition and the Contract with the
Nursing Home. Ann Marie simultaneously filed a motion to correct the filing
date in Swatt, nunc pro tunc. She sought to relate the complaint in Swatt
back to January 2, 2014, the filing date of the Praecipe for Writ of Summons
in Hawbaker.
Another year passed, and, on September 30, 2021, Timothy Grant
Wojton, Esq. entered his appearance for Ann Marie. Two weeks later, the trial
court issued an Opinion and Order granting summary judgment to the Nursing
Home. It held that the two-year statute of limitations for tort claims barred
Ann Marie’s counts for malpractice. The court also ruled that the gist-of-the-
action doctrine prevented her from suing for breach of contract. See Trial
Court Opinion, 10/12/21, at 3-5.
Ann Marie timely appealed from the order granting summary judgment
in Swatt. In addition, Ann Marie filed a notice of appeal in Hawbaker from
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the summary-judgment order in Swatt, even though no one had moved for
summary judgment in Hawbaker.6
Upon review of Ann Marie’s docketing statement and notice of appeal
filed in Hawbaker, this Court issued her a rule to show cause why we should
not quash the appeal in Hawbaker, 1507 MDA 2021. We observed that Ann
Marie’s notice of appeal stated that she appealed from the order granting
summary judgment entered in Swatt, but that order was not entered on the
docket of Hawbaker. Our order suggested that the appeal in Hawbaker
could not lie from the summary-judgment order entered on the Swatt docket.
Additionally, this Court indicated that the last entry in Hawbaker was
the entry of judgment of non pros and that no one had petitioned to open or
strike that judgment. We said, “Any appeal related to a judgment of non pros
lies not from the judgment itself, but from the denial of a petition to open or
strike.” Show Cause Order, 3/17/22, at 1 (quoting Bartolomeo v. Marshall,
69 A.3d 610, 613-14 (Pa. Super. 2013); citing Pa.R.Civ.P. 3051, Comment).
Ann Marie replied to the rule and argued for the continued viability of
her appeal in Hawbaker, docketed at 1507 MDA 2021, or, alternatively, to
have it consolidated with her appeal in Swatt, docketed at 1506 MDA 2021. ____________________________________________
6 When Ann Marie filed her notice of appeal in Hawbaker, supra, she attempted to change the caption of the named plaintiff to herself, without moving to substitute herself in that role. We have restored the caption in that appeal to its original (and current) plaintiff. Although Attorney Kilgus filed the order from Franklin County with the Prothonotary of Northumberland County, nothing in that order directed substitution of Elizabeth for Attorney Hawbaker. While Ann Marie moved to substitute herself in Swatt, she did not do so in Hawbaker.
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She contended that Swatt and the other matter that the Swatts jointly
commenced on January 6, 2012 (which the trial court dismissed at preliminary
objections) were continuations of Hawbaker. Ann Marie claimed that the
Prothonotary of Northumberland County erroneously severed them into three
separate lawsuits by assigning each filing its own docket number. In her view,
all three lawsuits were one action by the Estate of Madlyn Blusius.
This Court withdrew its rule to show cause and deferred the question of
appellate jurisdiction to the merits panel. We also consolidated the appeals
in Swatt and Hawbaker.
Regarding Swatt, a panel of this Court, composed of President Judge
Lazarus, Judge Bowes, and former-Justice Stevens, unanimously affirmed the
trial court’s grant of summary judgment on the malpractice claims, but it
reversed as to the contract claims. Also, regarding Hawbaker, a majority of
the panel, i.e., President Judge Lazarus and former-Justice Stevens, quashed
Elizabeth’s appeal as untimely. However, Judge Bowes wrote separately to
explain that, in her opinion, the Hawbaker appeal should be quashed as
premature.
Ann Marie petitioned for rehearing before this Court en banc, which we
granted and withdrew the panel decisions.
IV. Analysis
Ann Marie raises three appellate issues which we have reordered for
ease of disposition as follows:
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1. Did the trial court err or abuse its discretion in dismissing [the] Pharmacy from the suit due to . . . the statute of limitations . . . ?
2. Did the trial court err or abuse its discretion in ruling that [Ann Marie’s] survival action [against the Nursing Home] was time barred under the statute of limitations . . . ?
3. Did the trial court err or abuse its discretion when it ruled that the gist-of-the-action doctrine bars [Ann Marie’s] breach-of-contract claim . . . ?
Ann Marie’s Substituted Brief at 4. Before addressing those claims, first we
consider our appellate jurisdiction over Hawbaker, 1507 MDA 2021.
A. Appellate Jurisdiction over Hawbaker Case
As this Court observed in its show-cause order, Ann Marie purports to
appeal the Hawbaker case from an order that the trial court did not enter on
the Hawbaker docket. Thus, she seeks to lift Hawbaker up to this Court by
the boot straps of Swatt. We ask whether this is jurisdictionally permissible,
given that the trial court did not enter an appealable order in Hawbaker.
The “appealability of an order goes to the appellate court’s jurisdiction.”
Williams v. Williams, 385 A.2d 422, 423 (Pa. Super. 1978) (en banc). “The
question of an appellate court’s jurisdiction to consider any particular case
may properly be raised sua sponte.” Commonwealth v. Giffin, 595 A.2d
101, 103 (Pa. Super. 1991). This presents “a question of law; the appellate
standard of review is de novo, and the scope of review is plenary.” Crespo
v. Hughes, 292 A.3d 612, 615 (Pa. Super. 2023).
An order does not become “appealable until it has been entered upon
the appropriate docket in the trial court.” Pa.R.A.P. 301(a)(1) (emphasis
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added). Here, the order granting summary judgment to the Nursing Home in
Swatt was entered upon the appropriate docket in the trial court – i.e., the
Swatt docket, CV-2014-830. At that moment, it became an appealable order
in that case.
However, the trial court never entered the summary-judgment order on
the Hawbaker docket, CV-2014-5.7 Nor should it have done so, because the
parties in Swatt differ from the parties in Hawbaker, and a complaint was
never filed in Hawbaker. Further, the Nursing Home did not file a motion for
summary judgment in Hawbaker.
Regarding the differing parties, no one substituted Elizabeth or Ann
Marie as the named Plaintiff in Hawbaker. Thus, Attorney Hawbaker remains
plaintiff of record in Hawbaker. Ann Marie remains a stranger to that action.
Accordingly, she lacks standing to appeal Hawbaker to this Court. Further,
because there is no appealable order in Hawbaker, we have no appellate
jurisdiction over that case.
7 Moreover, even if the trial court had entered its order granting summary judgment on the Hawbaker docket, we would still lack appellate jurisdiction over Hawbaker. Generally speaking, “an appeal may be taken as of right from any final order of a . . . trial court.” Pa.R.A.P. 341(a). A final order is one that “disposes of all claims and of all parties . . . .” Pa.R.A.P. 341(b).
The summary-judgment order disposed of all claims by Elizabeth against the Nursing Home, but it disposed of none of the claims of Attorney Hawbaker against anyone. So, the order granting summary judgment would not meet the definition of a final order even if filed on the Hawbaker docket. At that docket number, the order would dispose of no claims and no parties. Without a final order we would have no jurisdiction over Hawbaker regardless.
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Importantly, the prothonotary’s entry of judgment of non pros for failure
to file a complaint does not alter our finding that no final order exists in
Hawbaker. As mentioned, Hawbaker’s docket entries reveal that the
prothonotary never served notice of the entry of judgment of non pros on
Attorney Hawbaker or her counsel, Attorney Sharpe.
Under Pennsylvania Rules of Civil Procedure 108, an order is officially
entered on “the day on which the clerk makes the notation in the docket that
notice of entry of the order has been given as required by Pa.R.Civ.P. 236(b).”
Pa.R.A.P. 108(b). Rule 236 imposes mandatory duties on the prothonotary in
entering judgments. “The prothonotary shall immediately give written notice
of the entry of . . . . any . . . order or judgment to each party’s attorney of
record or, if unrepresented, to each party. The notice shall include a copy of
the order or judgment.” Pa.R.C.P. 236(a)(2) (emphasis added). In addition,
the “prothonotary shall note in the docket the giving of the notice and, when
a judgment by confession is entered, the mailing of the required notice and
documents.” Pa.R.C.P. 236(b) (emphasis added).
If the prothonotary violates Rule 236, the judgment is not officially
entered.8 See, e.g., Mumma v. Boswell, Tintner, Piccola & Wickersham,
937 A.2d 459, 464 (Pa. Super. 2007) (holding that the trial court erred in
refusing to strike non pros judgments that were not properly entered because, ____________________________________________
8 We note that Ann Marie made a similar argument regarding the non-service
of the judgment of non pros when responding to the Nursing Home’s motion for summary judgment in Swatt. See Ann Marie’s Response to Nursing Home’s Surresponse for Summary Judgment . . . at 9-10.
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the docket entries demonstrated “that the prothonotary did not provide [the
plaintiff] with written notice of entry of the judgments and failed to note in the
docket the giving of such notice”). We have held that this “is a bright-line
rule, to be interpreted strictly,” even if the party “did indeed receive notice
. . . .” In re L.M., 923 A.2d 505, 509 (Pa. Super. 2007).
Because the judgment of non pros was never officially served on the
plaintiff of record in Hawbaker, that action remains pending in the original
jurisdiction of the trial court. Given that Ann Marie is not a party to
Hawbaker, and no final order was ever entered in Hawbaker, Ann Marie’s
appeal in Hawbaker is improper and premature. As a result, we quash her
appeal at 1507 MDA 2021 as premature and only address Ann Marie’s three
substantive issues as they pertain to her appeal in Swatt.
B. Waiver of Judgment on the Pleadings to Pharmacy
As her first appellate issue, Ann Marie challenges the grant of judgment
on the pleadings to the Pharmacy. However, the Pharmacy responds that Ann
Marie neglected to appeal the order granting it judgment on the pleadings or
even to name the Pharmacy in her notice of appeal. Thus, the Pharmacy,
which had to petition to intervene in this appeal (due to Ann Marie’s failure to
name it in her notice of appeal), contends that any argument Ann Marie has
against it is waived. See Pharmacy’s Substituted Brief at 14-23. We agree.
“The issue of waiver presents a question of law, and, as such, our
standard of review is de novo, and our scope of review is plenary.” Trigg v.
Children’s Hospital of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020).
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To perfect an appeal, the appellant must file a proper and timely notice
of appeal. A proper notice of appeal must include the orders that the appellant
intends to appeal and give notice to the appellees. See Pa.R.A.P. 904(a).
Here, Ann Marie neglected to include the order granting judgment on
the pleadings to the Pharmacy in her notice of appeal. That order became
final when the trial court disposed of the remaining claims and parties by
granting summary judgment to the Nursing Home. See, e.g., Weible v.
Allied Signal, Inc., 963 A.2d 521, 524–25 (Pa. Super. 2008) (permitting
appeal where the trial court order, declaring the case settled as to all
remaining parties, rendered prior grants of summary judgment to the non-
settling parties final for purposes of appeal). Accordingly, Ann Marie’s failure
to identify the order granting judgment on the pleadings to the Pharmacy and
to identify the Pharmacy as an appellee in her notice of appeal waives any
claims related to the Pharmacy. See Jordan v. Pennsylvania State
University, 276 A.3d 751, 761 (Pa. Super. 2022) (holding that an appellant’s
failure to appeal trial court’s order denying petition for relief from judgment
of non pros renders all claims related to that order waived).
The trial court’s failure to rule upon Ann Marie’s motion to reconsider its
grant of judgment on the pleadings or for a declaration of finality does not
convince us otherwise. In Ann Marie’s view, because the trial court did not
enter an order declaring the grant of judgment on the pleadings final, the
court never released the Pharmacy from the case. She cites no law for this
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position, and our research has revealed none. See Ann Marie’s Substituted
Brief at 49. The assertion is incorrect.
A motion for judgment on the pleadings “provides all parties the means
to make an early application for summary disposition of the case, giving the
trial court the opportunity to make an overall examination of the pleadings in
the action and . . . determine whether, prior to trial, judgment should be
entered in the action.” 6 PA. STANDARD PRACTICE 2d. §31:1 at 73-74 (1994
ed.) (emphasis added). When a motion for judgment on the pleadings is
before the trial court, it “shall enter such judgment or order as shall be proper
on the pleadings.” Pa.R.C.P. 1034(b). Thus, the “ruling on the motion for
judgment on the pleadings can be a final judgment in favor of either the
plaintiff or the defendant.” 6 PA. STANDARD PRACTICE 2d. §31:38 at 124.
Here, Elizabeth had one claim remaining against the Pharmacy when the
Pharmacy moved for judgment on the pleadings. The trial court granted the
motion and stated, “any and all claims asserted against [the Pharmacy] are
DISMISSED with prejudice.” Trial Court Order, 4/8/16, at 2. Thus, the trial
court entered final judgment as between Elizabeth and the Pharmacy on April
8, 2016. The Pharmacy was released from the case at that point.
Elizabeth’s motion for a declaration of “finality” was her attempt to
appeal the order granting judgment on the pleadings immediately. She tried
to take an interlocutory appeal by permission. Despite her unresolved motion,
the order dismissing the Pharmacy became appealable when the trial court
later entered summary judgment in favor of the Nursing Home. At that time,
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the judgment-on-the-pleadings order also became final, by operation of law.
In fact, Elizabeth acknowledged her understanding that the trial court’s entry
of judgment on the pleadings released the Pharmacy from the action.
Elizabeth said, “allowing [the Pharmacy] to remain apart from this action until
resolution of [her] claims against the remaining [Nursing Home] would allow
for the degradation of potential witnesses memories, the potential destruction
of files, and foreknowledge of [Elizabeth’s] trial strategies by [the Pharmacy].”
Elizabeth’s Motion for Reconsideration or, Alternatively, for Finality at 17.
Clearly, the motion for reconsideration belies Ann Marie’s claim that the
trial court’s failure to declare finality kept the Pharmacy in the case. Elizabeth
sought a declaration of finality, because she knew that, without an immediate
appeal to this Court, the Pharmacy would no longer be a party to the litigation.
In her notice of appeal, however, Ann Marie omitted the Pharmacy and the
order granting it judgment on the pleadings.
Thus, we dismiss Ann Marie’s first issue as waived.
C. Statute of Limitations of Malpractice Claims
In her second issue, Ann Marie contends the trial court erred by ruling
that the statute of limitations barred her survival action. She claims this issue
“primarily involves application of Pennsylvania Rule of [Civil] Procedure 126
and the likelihood of administrative/clerical error.” Ann Marie’s Substituted
Brief at 25. Ann Marie believes we should apply Rule 126 and, in the pursuit
of substantial justice, overlook the fact that Attorney Kilgus filed the complaint
in Swatt after the statute of limitations for personal-injury claims expired.
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Ann Marie alleges Attorney Kilgus made a clerical error when filing the
original complaint that commenced the Swatt action. See id. at 31-33. She
asserts that Elizabeth, Attorney Kilgus, the Nursing Home, and the trial court
all intended for Elizabeth’s complaint to be docketed in Hawbaker by May 14,
2014. But, because Attorney Kilgus neglected to write the Hawbaker docket
number on the original complaint, the Prothonotary of Northumberland County
erroneously assigned a new docket number to the complaint and mistakenly
bifurcated the Hawbaker action and the Swatt action. Ann Marie states,
“whether this qualifies as a ‘breakdown in operations,’ a ‘clerical error,’ or
even a filing error on [Attorney Kilgus’] part, this cannot and should not be
seized upon by the defense as a means by which to dismiss and defeat what
may very well be a meritorious case.” Id. at 25-26.
In addition to Rule 126, Ann Marie also claims the Nursing Home waived
the statute-of-limitations defense under Rule of Civil Procedure 1030, and that
the Nursing Home is estopped from asserting the defense. See id. at 29-30;
see also Ann Marie’s Original Brief at 42-45. To support her estoppel claim,
Ann Marie alleges the Nursing Home consented to Attorney Hawbaker’s motion
to enlarge the time to file a complaint in Hawbaker. Ann Marie further argues
that the trial court failed to address her waiver and estoppel issues in either
of its opinions.
Whether a party is entitled to summary judgment is a pure question of
law; our standard of review is de novo. See Pyeritz v. Commonwealth, 32
A.3d 687, 692 (Pa. 2011). We view all facts and draw all reasonable
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inferences therefrom in a light most favorable to the non-moving party. See
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007).
Initially, we address Ann Marie’s claims of waiver based on Rule 1030,
estoppel, and liberal construction under Rule 126. She correctly contends that
the trial court omitted these issues from its two opinions. However, Ann Marie
caused this omission by failing to raise any of those theories below. See Ann
Marie’s Opposition to Nursing Home’s Motion for Summary Judgment (making
no claim of waiver, estoppel, or Rule 126 in reply to the statute-of-limitations
defense) and Ann Marie’s Response to Nursing Home’s Surresponse for
Summary Judgment . . . (accord).9
“As a general matter. . . issues not raised in lower courts are waived for
purposes of appellate review, and they cannot be raised for the first time on
appeal.” Trigg, 229 A.3d at 269 (citing Pa.R.A.P. 302(a)).
Indeed, “issue preservation is foundational to proper appellate review.”
Id. This procedural prerequisite to appellate review “ensures that trial judges
have the opportunity to consider a potential appellate issue and correct any
error at the first available opportunity.” Id. “It also promotes the orderly and
efficient use of judicial resources, ensures fundamental fairness to the parties,
and accounts for the expense attendant to appellate litigation.” Id.
A review of Ann Marie’s filings in response to the Nursing Home’s motion
for summary judgment reveals that she failed to mention Rule of Civil ____________________________________________
9 Our scope and standard of review for waiver are the same as in Section IV(B), supra, and we incorporate them here by reference.
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Procedure 1030, waiver thereunder, or the doctrine of estoppel. Similarly,
neither of Ann Marie’s responses to the summary-judgment motion referred
to Rule of Civil Procedure 126. She did not argue that the trial court should
liberally construe the rules for commencing an action, substituting parties, or
placing docket numbers on filings.
Thus, Ann Marie failed to preserve any claim of waiver under Rule 1030,
estoppel, or liberal construction under Rule 126 for our appellate review. We
dismiss those theories as waived. See Pa.R.A.P. 302(a).
That said, Ann Marie renews her claim to the trial court that the statute
of limitations does not bar her survival claims, because Hawbaker and Swatt
are one action. She says the trial court, in Hawbaker, granted Attorney
Hawbaker, as Executrix of the Estate of Madlyn Blusius, “a deadline of May
14, 2014 ‘to file a complaint in this matter.’” Ann Marie’s Substituted Brief
at 39 (quoting T.C.O., 4/16/14, at 1) (emphasis by Ann Marie). She contends
that this order is “evidence of the [Nursing Home’s] agreement/understanding
that the May 13, 2014 complaint was the next procedural step within the
‘matter’ timely-filed at [Hawbaker].” Id. at 40. Ann Marie believes, because
everyone expected Elizabeth to file her complaint in the Hawbaker docket,
she must have done so.
Summary judgment is appropriate if “the record clearly demonstrates
that there is no genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Summers v. Certainteed Corp.,
997 A.2d 1152, 1159 (Pa. 2010). Furthermore, a “plaintiff cannot survive
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summary judgment when mere speculation would be required for the jury to
find in [her] favor.” Krauss v. Trane U.S. Inc., 104 A.3d 556, 568 (Pa.
Super. 2014). The party opposing summary judgment must come forward
with some evidence to “demonstrate that there is a genuine issue for trial and
may not rest on averments in [her] pleadings.” Davis v. Resources for
Human Development, Inc., 770 A.2d 353, 357 (Pa. Super. 2001).
In Pennsylvania, there is a two-year statute of limitations to bring claims
for personal injuries. “[A]ctions and proceedings must be commenced within
two years,” if brought “to recover damages for injury to person or property
. . . sounding in trespass . . . .” 42 Pa.C.S.A. § 5524(7). Additionally, the
Supreme Court of Pennsylvania held that “a survival action in a medical-
professional-liability case resulting in death accrues at the time of death, not
at the time of decedent’s injury.” Dubose v. Quinlan, 173 A.3d 634, 647
(Pa. 2017). Hence, a survival-action plaintiff has two years from the date of
the decedent’s death to commence an action for personal injuries.
Madlyn died on January 5, 2012. Thus, any survival action following her
death needed to be commenced by January 6, 2014.
A plaintiff commences a civil action “by filing with the prothonotary: (1)
a praecipe for a writ of summons, or (2) a complaint.” Pa.R.C.P. 1007. Once
the plaintiff files a praecipe for a writ of summons or a complaint, the action
has “been ‘commenced,’ [and] the statute of limitations . . . has been tolled.”
Salay v. Braun, 235 A.2d 368, 371 (Pa. 1967).
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Attorney Hawbaker filed her praecipe for writ of summons against the
Nursing Home on January 2, 2014. Hence, she commenced her lawsuit within
two years of Madlyn’s death. The statute of limitations would not bar
personal-injury claims in Hawbaker. By contrast, Elizabeth filed her original
complaint on May 13, 2014, over two years and four months after Madlyn’s
death. Elizabeth’s complaint in Swatt was untimely to bring tort claims.
As a result, Ann Marie can only maintain her malpractice counts, if the
complaint that Elizabeth filed on May 13, 2014 is part of Hawbaker. The
record reveals that the trial court correctly deemed that the two actions were
separate proceedings, as a matter of law. Elizabeth’s May 13, 2014 complaint
was not a continuation of Hawbaker, to which the prothonotary mistakenly
assigned a new docket number.
If Attorney Kilgus intended for Elizabeth’s complaint to be a continuation
of Hawbaker, there were several steps she needed to take to establish the
continuity of a single action. First, she needed to enter her appearance in
Hawbaker. See Pa.R.C.P. 1012. Then, she needed to file a statement of
material facts to substitute Elizabeth for Attorney Hawbaker as the named
representative of the estate/plaintiff in Hawbaker. See Pa.R.C.P. 2352(a).
Attorney Kilgus did neither of those things.
Instead, the indisputable evidence shows that Attorney Kilgus captioned
the complaint to bring an action in Elizabeth’s personal capacity, rather than
as the Administratrix pro tem of the Estate of Madlyn Blusius. The caption of
the complaint did not include the words “estate” or “representative” in the
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identity of the named “Plaintiff.” Similarly, Attorney Kilgus added new
defendants to the complaint who were not named in Attorney Hawbaker’s
praecipe for writ of summons. Thus, three of the parties in Swatt were not
parties to the Hawbaker action.
Also, Attorney Kilgus left the line for the docket number of Elizabeth’s
complaint blank. “Every pleading shall contain a caption setting forth the
name of the court, the number of the action and the name of the pleading.”
Pa.R.C.P. 1018 (emphasis added). By not including the Hawbaker docket
number on the May 13, 2014 complaint, Attorney Kilgus undoubtedly indicated
to the prothonotary an intent to commence a new action.
Additionally, Attorney Kilgus paid a new-action filing fee. The Swatt
docket undoubtedly proves there was a “5/13/2014 Filing” and the fee for
“Commencement of Any Civil Action Paid . . . $116.00.” Docket Entries at 1.
Lastly, Attorney Kilgus had the sheriff serve the May 13, 2014 complaint
on the defendants as original service of process. See Pa.R.C.P. 400(a). The
sheriff had already served original process to the Nursing Home in Hawbaker,
so this step was redundant if Attorney Kilgus intended to continue Hawbaker.
Unsurprisingly, the prothonotary did not write the Hawbaker docket
number on the May 13, 2014 complaint. Nothing about Elizabeth’s complaint
or Attorney Kilgus’ actions hinted that the complaint related to Hawbaker, or
that she wanted to file it as a continuation of Hawbaker.
Moreover, there is no evidence of record reflecting that the prothonotary
stopped Attorney Kilgus from filing the complaint in Hawbaker. And, even
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if, the prothonotary refused to file the complaint in the Hawbaker docket due
to the lack of a docket number on it, there is no explanation as to why Attorney
Kilgus did not then simply write the Hawbaker docket number on the
complaint and reoffer it for filing.
The only logical conclusion from the documents of record is that
Attorney Kilgus intended to file the complaint as a new action and to create
the Swatt docket. Even viewing the documents of record in the light most
favorable to Ann Marie, no reasonable juror could find that Attorney Kilgus did
anything other than commence a new civil action, on behalf of a new plaintiff,
who was unrelated to the Hawbaker case. The May 13, 2014 complaint
commenced a new civil action, as a matter of law.
It was not until Attorney Kilgus filed an Amended Complaint, on June
30, 2014, that she indicated that Elizabeth was suing as the personal
representative of Madlyn’s estate. And even then, she still failed to identify
Elizabeth by the title that the Orphans’ Court of Franklin County bestowed on
her – “Administratrix pro tem for the Estate of Madlyn Blusius.” Moreover,
Attorney Kilgus neglected to move for consolidation of Swatt with Hawbaker
or, alternatively, to have them deemed to be one action.
The Amended Complaints do not change our conclusion. Although
Attorney Kilgus attempted to correct the name of the proper plaintiff when
she filed the Amended Complaint, she did so without the consent of the
adverse parties or an order granting leave of court, as required under Rule of
Civil Procedure 1033. The Rule provides, in relevant part, “A party, either by
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filed consent of the adverse party or by leave of court, may at any time change
the form of action, add a person as a party, correct the name of a party, or
otherwise amend the pleading.” Pa.R.C.P. 1033(a).
Further, Ann Marie fails to recognize that the May 13, 2014 complaint
was filed in Elizabeth’s personal capacity, instead of as the Personal
Representative of the estate. Therefore, she does not contend that any of the
Amended Complaints, by merely replacing the named plaintiff, corrected
Attorney Kilgus’ initial filing error. See Ann Maries’ Substituted Brief at 28-
48 (making no mention of the fact that the Swatt case was initiated by the
wrong party in interest).
The named representative in a survival action for an estate matters. “It
is settled law that a decedent’s estate cannot be a party to litigation unless a
personal representative exists.” Prevish v. Northwestern Medical Center
Oil City Campus, 692 A.2d 192, 200 (Pa. Super. 1997) (en banc), affirmed,
717 A.2d 1023 (Pa. 1998). “Stated differently, all actions that survive a
decedent must be brought by or against the personal representative of the
decedent’s estate.” Id. (emphasis added).
Thus, “the Estate,” to which Ann Marie continually refers to as “the
Plaintiff” in Swatt is a legal and factual misnomer. An action on behalf of an
estate may only be brought by the personal representative of the estate, when
acting in that capacity, and such capacity must be disclosed in the initial
pleading. See Pa.R.C.P. 2002(b)(1).
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Here, Attorney Kilgus did not disclose that she was filing Elizabeth’s suit
in Elizabeth’s capacity as personal representative of the Estate of Madelyn
Blusius, when she filed the initial pleading in Swatt, i.e., the May 13, 2014
complaint.10 Hence, the trial court correctly ruled that Ann Marie’s six counts
for medical malpractice against the Nursing Home were untimely. The court
properly granted summary judgment to the Nursing Home under the statute
of limitations on the tort claims.
We dismiss Ann Marie’s second issue as meritless.
D. The Gist-of-the-Action Doctrine & Contract Claims
Lastly, Ann Marie challenges the trial court’s application of the gist-of-
the-action doctrine to her contract claims. The trial court concluded that the
contract claims were tort claims in disguise. It therefore applied the two-year
statute of limitations to the contract claims and dismissed them as untimely.11
According to Ann Marie, “a litigant may proceed in both trespass and
assumpsit in the same action . . . .” Ann Marie’s Substituted Brief at 53. Given
that “the duties and measure of damages in this case are different as between
[her] negligence and contract claims, it was error for the [trial] court to bar
the contract claims under the gist-of-the-action doctrine.” Id. She contends
that the “doctrine operates to foreclose tort claims arising solely from the ____________________________________________
10 The praecipe for writ of summons filed in Hawbaker, supra, was not a pleading. See Pa.R.C.P. 1017.
11 This issue also arises from a grant of summary judgment to the Nursing Home. Thus, our scope and standard of review are the same as Section IV(C), supra, and we reincorporate them here by reference.
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contractual relationship between the parties when the alleged duties breached
were grounded in the contract itself . . . .” Id. at 53-54. Thus, Ann Marie
argues that the trial court erroneously applied the doctrine backwards to bar
contract claims, rather than tort claims.
The Nursing Home responds that the gist-of-the-action doctrine bars
contract claims, as well as tort claims. It primarily relies on Bruno v. Erie
Insurance Co., 106 A.3d 48 (Pa. 2014), to contend that the essence of Ann
Marie’s “allegations . . . is not that a specific, contractual, executory promise
was breached, but rather that [the Nursing Home] acted in a negligent manner
in the performance of [its] duties; therefore, the gist of [Ann Marie’s] cause
of action is clearly negligence.” Id. at 37. The Nursing Home then offers a
string of post-Bruno decisions from the federal courts, which applied Bruno
in the same manner as the trial court in this case.
Reliance upon the gist-of-the-action doctrine and Bruno to convert Ann
Marie’s contract claims into tort claims is misplaced. The Bruno Court did not
decide whether the gist-of-the-action doctrine applies to contract claims. As
will become evident through our review of the history of the overlap between
tort and contract claims, a plaintiff’s choice of remedy (either in tort or in
contract) is not necessarily binary. We acknowledge that some non-
precedential decisions of this Court and federal cases have applied Bruno in
the manner that the Nursing Home urges. Those decisions were incorrect.
The history of the common law and advent of the rules of civil procedure
indicate that a plaintiff may bring contract claims, in addition to tort claims,
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for the same unlawful conduct by a defendant. In fact, over the centuries,
English and American courts have continually eased the rules of procedure
and pleading to allow parties to develop all possible claims and defenses in
the alternative. Created by a federal district court in 1999, the gist-of-the-
action doctrine was an anomaly and inadvertent step backwards. Today, this
appeal presents us with the opportunity to correct the error of applying the
“doctrine” to dismiss contract claims, and we do so.
1. The Ancient Common-Law Writs & Forms of Action
In Medieval England, the filing of a lawsuit required a writ from the King
that authorized a specific trial court to hear the case. A plaintiff had to choose
among various types of writs and the “form of action” that the chosen writ
authorized. There were many different forms of action available, and each
presented would-be plaintiffs with “a choice between methods of procedure
adapted to cases of different kinds.” Maitland, THE FORMS OF ACTION AT COMMON
LAW: A COURSE OF LECTURES at 2 (Cambridge U.P., 1965).
Each form of action was a “procedural pigeon-hole” with its own rules of
substantive law and precedents. Id. at 4. A plaintiff, with multiple causes of
action, might “find that his case [would] fit some two or three of these pigeon-
holes.” Id. The plaintiff had to choose one writ out of the many available,
and that choice was irrevocable.
Also, the common-law-pleading system insisted that courts decide only
a single issue of fact or law in each case. While this “produced administrative
effectiveness with a vengeance, too often [it] did so at the expense of
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substantive justice.” Fleming James, Jr., The Objective and Function of the
Complaint: Common Law – Codes – Federal Rules, 14 Vand. L. Rev. 899, 903
(1961). “[N]o one can forecast with certainty what the proof will bring forth
in the way of facts, or of issues, or of the possible attitude towards facts and
law that the tribunal may take . . . .” Id. Many cases “present two or more
issues . . . which must all be resolved if full justice is to be done.” Id. Thus,
common-law procedure, which limited a plaintiff’s causes of action and issues,
was “bound to cause many a miscarriage of justice.” Id.
Because the writs procedurally and precedentially pigeon-holed the law,
treatises and law-school “subjects” adopted those classifications; when “there
are, of course, no such distinct compartments in the law.” William L. Prosser,
The Borderland of Tort and Contract, SELECTED TOPICS ON THE LAW OF TORTS at
380 (1953). Unlike countries on a map, “the fields of liability and doctrine
interlock; everywhere there are borderlands and penumbras, and cases which
cut across the arbitrary boundary lines of division, or staddle them . . . .” Id.
In “one such borderland . . . the fields of tort and contract meet and are
interwoven.” Id. (emphasis added).
In fact, prior to the 1500s, there was no separate writ of (and, therefore,
no action to enforce) oral contracts. As a result, it was impossible for
commoners (who could not read, much less draft, sign, and seal a written
contract) to sue a smith, barber, surgeon, bailee, or common carrier for
breaching oral promises. However, if such professionals physically or
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economically harmed their customers by negligently performing their work,
courts allowed an action for trespass on the case to lie. See id.
As years passed and new factual scenarios emerged, the clerks of
chancery gradually issued new writs, which, in turn, established new forms of
action in the courts. One new writ, that emerged in the early 1500s, was the
writ of assumpsit. This writ became “exclusively a contract action; and with
it came the enforcement of executory promises, the necessity of
consideration, and finally the contract implied in fact.” Id. at 384.
The emergence of assumpsit created the substantive dilemma that we
now face in this appeal – namely, whether contract and tort actions may be
maintained simultaneously. Under common-law procedure, they could not,
because the court of chancery would only issue one writ per plaintiff. Although
there was a writ of trespass and a writ of assumpsit, there was no writ of
trespass and assumpsit. So, plaintiffs simply chose the writ they thought best
fit their case.
Plaintiffs often elected “the old tort action on the case in any contract
situation in which it had been recognized.” Prosser at 384. “Once it was clear
that assumpsit would lie for any breach of contract, but that in certain
situations there might still be a remedy in tort, the English courts began to be
beset with problems.” Id. at 385-86. As Dean Prosser highlighted, the
question was whether the plaintiff could still bring a trespass action, even
though assumpsit would clearly lie. In other words, “when was a breach of
contract also a tort?” Id. at 387. (emphasis added).
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To answer that question, courts looked to see if the “gist of the action”
conformed with the form of action that the plaintiff brought. Critically, “gist
of the action” was a legal term of art during the common-law-pleading era.
The foremost treatise on common-law pleading from the mid-1800s teaches
that the word “gist” was originally synonymous with “ground.” Stephen, ON
PRINCIPLES OF PLEADING IN CIVIL ACTIONS § 59, at 103 (2d. U.S. Ed, Chicago
Press, 1901).12 Additionally, in the 1800s, there were important
“distinction[s] between the ‘right of action,’ the ‘cause of action,’ the ‘ground
of action,’ and the ‘subject of action.’” Id.
Stephen defines the “ground of the action” as “the act of the offending
party, by means of which the injury is inflicted.” Id. at 105. “It is the unlawful
conduct, or conduct which might . . . be lawful, but which is rendered unlawful
by the character of the intent or object of the act . . . .” Id. Thus, the
defendant’s intent “constitutes an important element of the gist of the action.”
Id. n.4. (citing Morgan v. Andrews, 64 N.W. 869, 871 (Mich. 1895)). In
12 The success of Stephen’s treatise led to the publication of a second edition
in 1827. Parliament abolished common-law pleading soon thereafter. In this country, however, common-law pleading remained in effect, and Stephen’s second edition was a staple of the American bar. That edition is now a Rosetta Stone for deciphering pleadings and procedural decisions prior to the rules of civil procedure.
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short, the ground/gist of the action was the defendant’s unlawful act upon
which the plaintiff’s cause (or causes of action) would lie.13
Indeed, the Supreme Court of Pennsylvania used the phrases as
synonyms in one of the earliest decisions containing the phrase “gist of the
action.” See Griffith v. Ogle, 1806 WL 1009, at *3 (Pa. 1806) (stating, “The
old writ of conspiracy charges a conspiracy in the defendants; and that
conspiracy is the ground of the action. In the present action, likewise, the
conspiracy is the gist of the action, although it may be necessary to show
some act in execution of it.”) (original emphasis removed; emphasis added).
Furthermore, “the cause of action” meant only the injury (or injuries)
that a plaintiff suffered from a defendant’s unlawful conduct. “Cause of action”
was frequently “confused with the unlawful conduct which gives rise to the
injury, [i.e.,] the ground of the action; but the cause of the action designate[d]
the nature of the injury . . . .” Stephen § 59 at 104. Therefore, a single
ground/gist of the action might produce multiple injuries, that is, multiple
13 See THE OXFORD ENGLISH DICTIONARY, The Etymology of “Gist,” available at
https://www.oed.com/dictionary/gist_n3?tl=true&tab=etymology (last visited 2/13/2025) (citing Kelvey’s Rep. at 1502-3 (1688) (explaining that “gist” descended from Latin “jacere,” meaning “to lie down,” through the Old French, “giser,” meaning “to lie.”)). Thus, the ancient legal saying was “(cest) action gist,” meaning “(this) action lies.” Id. The O.E.D. still lists the original, legal meaning of “gist” as the primary definition: “The real ground or point (of an action, indictment, etc.).” Id., first definition of “gist,” available at https://www.oed.com/dictionary/gist_n3?tl=true&tab=meaning_and_use (last visited 2/13/2025) (emphasis added). “Gist” did not acquire its modern, colloquial meaning of “substance or pith of a matter, the essence or main part,” until approximately 1820. Id.
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causes of action. See id. at 105. Together, the “ground/gist of the action”
and “cause of action” were known as the “subject of the action,” a phrase
“almost as comprehensive as the word ‘transaction,’ . . . .” Id.
In determining whether the cause of action would lie in trespass, the
Court of King’s Bench said, “if a party undertakes to perform work and
proceeds on the employment, he makes himself liable for any misfeasance in
the course of the work; but if undertakes and does not [do] the work, no
action [in trespass] will lie against him for the nonfeasance.” Elsee v.
Gatward, 101 Eng. Rep. 82 (K.B. 1793). If the unlawful conduct was
“nonfeasance” (no performance of a contract), the plaintiff’s only remedy was
in assumpsit. By contrast, if the act was “misfeasance” (negligent/defective
performance of the contract), the remedy would lie in assumpsit but “may
also be a matter of tort.” Prosser at 388 (emphasis added).
Thus, 250 years ago, English courts recognized that, if a party to a
contract committed an unlawful act, the other party could always sue in
assumpsit. But the plaintiff might also sue in trespass, if the unlawful act was
also a tort. When someone negligently performed a contract, “the older tort
remedy carried over, wherever it was established, as an alternative to an
action on the contract.” Id. at 402 (emphasis added). For example, “a
common carrier remained liable in tort, as well as in contract, for negligent
injury to a passenger, for loss of his baggage, for carrying him past his station
or putting him off at the wrong one, for ejecting him from the train, or even
for insulting him.” Id. at 402-03 (emphasis added).
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In certain cases, the plaintiff could elect whether to file in trespass or in
assumpsit. The courts honored the plaintiff’s elected remedy, even if
defendants contended that another form of action was more appropriate.
2. The Plaintiff’s Election between Tort and Contract at Common Law
In the landmark case of Brown v. Boorman, 8 Eng. Rep. 1003 (H.L.
1844), England’s highest tribunal recognized that a plaintiff could sue in either
trespass or assumpsit for the negligent performance of a contract. The House
of Lords held that there is an implied duty in all contracts to perform the
contract with reasonable care and skill.
There, the Boormans contracted with Brown, an oil broker, to deliver
three shipments of oil to a customer in London. Brown agreed to collect the
purchase price prior to each delivery. The customer went bankrupt, so Brown
gave the last shipment to another person on credit. The Boormans never
received the purchase price for that shipment.
The Boormans obtained a writ of trespass upon the case against Brown.
They alleged that once Brown accepted their contract, he had a duty, “to use
all reasonable care and diligence” to receive the purchase price before handing
over the oil. Id. at 1004. They claimed Brown negligently performed that
duty and cost them their profits. Brown pleaded not guilty, and the jury ruled
for the Boormans.
Brown moved in arrest of judgment claiming the Boormans could not
sue him in tort for negligently performing the contract. The trial court agreed
and entered judgment, as a matter of law, for Brown.
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The Boormans appealed. The intermediate appellate court held that one
unlawful act (i.e., one gist of the action) can produce multiple causes of action.
Chief Justice Tindal, speaking for a unanimous court, said:
There is a large class of cases in which the foundation of the action springs out of privity of contract between the parties, but in which, nevertheless, the remedy for the breach or non- performance is indifferently either assumpsit or case upon tort. Such actions are against attorneys, surgeons, and other professional men, for want of competent skill or proper care in the service they undertake to render; actions against common carriers, against shipowners on bills of lading, against bailees of different descriptions; and numerous other instances occur in which the action is brought in tort or contract, at the election of the plaintiff.
Id. at 1007 (emphasis added). Thus, it did not matter which writ (trespass
or assumpsit) the Boormans used, because Brown’s negligent performance of
the contract was simultaneously a tort and a breach of contract. Thus, the
appellate court reversed and reinstated the jury verdict for the Boormans.
The House of Lords granted Brown’s petition for allowance of appeal.
Brown conceded that, when there is a contract and “also a general duty, the
plaintiff may have his election as to the form of action” between trespass and
assumpsit. Id. at 1007. However, in his case, he claimed the Boormans
“cannot have that election where the supposed duty is [only based on] the
. . . agreement of the parties. In such a case, the cause of action is a contract
and nothing else . . . .” Id. Further, Brown argued that, for the Boormans to
maintain an action in assumpsit, they needed to plead and prove which
express terms of the contract Brown breached.
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The House disagreed and held that the Boormans did not need to allege
and prove breach of an express term of the contract for assumpsit to lie.
Instead, the House concluded that service contracts include an implied term
that contractors will act with skill and care when fulfilling their obligations.
Hence, by alleging and proving negligence by Brown the tort action, the
Boormans simultaneously alleged and proved his breach of the implied term
in the contract.
Lord Campbell said, “it is immaterial . . . whether the count is framed in
tort or in contract.” Id. at 1018. “Wherever there is a contract, and
something to be done in the course of the employment . . . if there is a breach
of a duty in the course of that employment, the plaintiff may either recover in
tort or in contract.” Id. at 1018-19.
Significantly, this became the American rule. See Prosser at 407, n.
135-57 (collecting cases from American courts). Indeed, the Supreme Court
of Pennsylvania came to the same holding as Lord Campbell, in M’Call v.
Forsyth, 4 Watts & Serg. 179 (Pa. 1842). There, the plaintiff was riding in a
stagecoach that several people jointly owned, including William M’Call and
Abraham Horbach. The stagecoach wrecked and injured the plaintiff. He
obtained a writ of trespass to recover damages. However, the sheriff only
served M’Call and Horbach.
As in Brown, M’Call and Horbach contended the plaintiff needed to sue
in assumpsit, because their duty arose from their contract to provide
transportation. They argued that the plaintiff’s tort claim was really a contract
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claim. The trial court disagreed and submitted the tort claim to the jury. It
returned a verdict for the plaintiff, and the defendants appealed.
The Supreme Court affirmed. It held, when the common law imposes a
duty on the defendant and the defendant contracts with the plaintiff for the
same service as the common-law duty, negligent performance of the contract
creates two causes of action. The High Court said, “the true rule is, that [(1)]
an action solely on the custom is an action of tort; [(2)] the plaintiff has his
choice of remedies, either to bring assumpsit or [trespass on the] case; and
[(3)] when one or other form of action is adopted, it must be governed by its
own rules.” M’Call, 4 Watts & Serg. at 180 (citing Brotherton at al., 7 Eng.
Rep. 343; Ansell v. Waterhouse, 18 Eng. Rep. 227; Bank of Orange v.
Brown, 3 Wend. 158 (N.Y. 1829); and Zell v. Arnold, 2 Pen. & W. 292 (Pa.
1830) (“Zell I”)). Thus, the verdict in tort was affirmed, despite the fact that
the plaintiff could have alternatively sued in contact.
A few years later, in Smith v. Seward, 3 Pa. 342 (1846), the Supreme
Court explained that “it has long been established that the plaintiff may
declare in [trespass on the] case or assumpsit at his election . . . .” Id. at
345. (emphasis added). When either action lies, “the plaintiff may certainly
waive the contract and go for a tort.” Id.
Next, the Supreme Court expressly adopted Brown, supra. In
Wingate v. Mechanics’ Bank, 10 Pa. 104 (1848), a Pennsylvania bank
agreed to collect funds on behalf of its customers, which the customers had
previously deposited in two Mississippi banks. For various reasons, the bank
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failed to collect the funds and failed to inform the customers of that fact. The
Mississippi statute of limitations on the customers’ debts expired.
Eventually, the customers sued the Pennsylvania bank in assumpsit.
The jury found that the bank breached its contract.
The bank appealed and argued that the customers did not plead or prove
which specific terms of the contract it breached. The Supreme Court framed
the issue, in part, as whether the bank breached the contract by negligently
performing it. See id. at 108. The Court turned to the principles of agency
law and Brown to ascertain the scope of the bank’s contractual obligations.
The Wingate Court said, under Brown, “The law implies a promise
from brokers, bankers, or agents, and attorneys, that they will . . . exercise
competent skill and proper care in the service they undertake to perform; in
which, if they fail, an action lies [in contract] to recover damages for the
breach of their implied promise.” Id. at 108 (emphasis in original).14 Thus,
the Supreme Court read an implied term into contracts that service providers
will perform their contracts competently. The Court therefore affirmed the
jury verdict in favor of the customers.
Fifty years later, the Supreme Court extended the implied promise from
Brown and Wingate to laborers. In Zell v. Dunkle, 27 A. 38 (Pa. 1893) ____________________________________________
14 In fact, Wingate relied on Chief Justice Tindal’s opinion in the appellate court, rather than the decision from the House of Lords. See id., (citing Boorman v. Brown, 3 Q.B. (Ad. & E. N. S.) 511 (Exch. C. 1842), affirmed sub nom. Brown v. Boorman, 8 Eng. Rep. 1003 (H.L. 1844)). The opinion of Chief Justice Tindal aligned with the opinion of Lord Campbell. Thus, Lord Campbell’s opinion on dual remedies reflects Pennsylvania law.
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(“Zell II”), the plaintiff contracted with the defendant to repair an engine and
boiler. While the goods were in the defendant’s workshop, a fire broke out
and destroyed the engine and boiler. The plaintiff sued in assumpsit.
The trial court granted a nonsuit on the basis that the plaintiff elected
the wrong form of action. According to the trial court, the plaintiff could only
sue in trespass, because the plaintiff alleged that the defendant negligently
stored the engine and boiler. The plaintiff appealed.
The Supreme Court said, “If there had been no previous contract
relation between the parties, damages occasioned by the negligence of the
defendants could have been recovered only in an action on the case,” i.e., in
tort. Id. (emphasis added). However, the parties had contracted, and the
engine and boiler came into the defendant’s control pursuant to the terms of
that contract. Therefore, the High Court read the implied promise from
Wingate and Brown into the repair contract, a promise “implied from the
nature of the express contract . . . to do what, in good faith and common
fairness, ought to be done for the protection of their customer’s goods.” Id.
When “a duty arises out of an implied undertaking to do an act requiring
skill or fidelity, an action of assumpsit will lie to enforce the duty, or an action
on the case for the tort involved in the breach of duty may be sustained.” Id.
at 39 (citing Reeside v. Reeside, 49 Pa. 322 (1865)). If the defendant does
not perfectly perform the contract:
he is liable on his contract, whether the cause of his failure be his negligence, his fraud, or his crime, for his contract is broken in either case. But if the cause of his failure be his own fraud or
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felony, he may, at the election of his customer, be proceeded against for his tort, in any appropriate form of action ex delicto.
Id. (emphasis added). Thus, the Supreme Court held that the plaintiff could
sue in assumpsit for the defendant’s negligence, but it still upheld the nonsuit
due to insufficient proof of the alleged negligence.
These early cases demonstrate that, by the 20th century, a person could
sue a service provider for negligently performing a contract in either tort or
assumpsit.15 See Prosser at 402-10 n. 104-157 (collecting cases regarding
service providers). In such cases, “the plaintiff is entitled to sue either in
contract or in tort, because the defendant’s act is an unlawful interference
with the right of the plaintiff, which is created by agreement between them,
and also with a right which is created by law.” Burdick, THE LAW OF TORTS at
16 (1906) (emphasis added). In other words, one unlawful act (one “gist of
the action”) inflicts two, distinct legal harms (two “causes of action”).
However, courts established that plaintiffs could not recoup a windfall
by recovering twice. This Court said, a plaintiff “cannot bring two separate
suits for one cause of action and carry both suits to final judgments.” Burt v.
N. Philadelphia Trust Co., 45 Pa. Super. 320, 324 (1911). In Burt, a
plaintiff won a case against a bank in assumpsit and then immediately re-sued
the bank in trespass for the same unlawful act. While it did not matter whether ____________________________________________
15 In 1964, the Supreme Court continued applying this rule and concluded that
a plaintiff could sue in assumpsit when an airline’s employees negligently performed a contract for common carriage. See Griffith v. United Air Lines, Inc., 203 A.2d 796 (Pa. 1964).
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the plaintiff sued the bank in assumpsit or tort, “none of the cases hold that
the bank is liable to the depositor in an action of tort and of assumpsit.” Id.
at 4 (emphasis added). We therefore vacated the plaintiff’s second judgment.
Additionally, the statute of limitations may limit a plaintiff’s recovery,
regardless of the form of action. In Jones v. Boggs & Buhl, Inc., 49 A.2d
379 (Pa. 1946), the plaintiffs (husband and wife) filed in assumpsit to recover
economic and personal-injury damages for breach of contract. The wife had
purchased a fur coat and developed a rash on her neck. The plaintiffs sued
the store. The store raised the two-year statute of limitations and claimed
the plaintiffs’ assumpsit action was untimely, because the couple sought to
recover for personal injury.
The Supreme Court concluded that the statute of limitations “imposes
the period of limitation on the cause of action [i.e., the type of injury], instead
of Annexing it to the form of the action,” – e.g., trespass vs. assumpsit. Id.
at 381. Therefore, the statute operated to bar certain types of injuries – e.g.,
personal vs. economic. See id. at 380 (quoting the statute of limitations, that
lawsuits “brought to recover damages for injury wrongfully done to the
person . . . must be brought within two years.”) (emphasis added).16 As a
result, any damages for personal injury were untimely.
16 In 1954, the legislature enacted the Uniform Commercial Code, 13 Pa.C.S.A.
§§ 2101–2725, and changed the statute of limitations for breach of a sale-of- goods contract to four years, regardless of whether the plaintiff’s injuries were economic or personal. See Gardiner v. Philadelphia Gas Works, 197 A.2d (Footnote Continued Next Page)
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Nevertheless, the plaintiffs could still recover economic damages. The
wife’s testimony “would support a finding of a breach of contract entitling her
to nominal damages at least,”17 or “the jury may find from her evidence that
she should recover back the $22 paid [for] the coat on a credit-payment plan
. . . .” Id. Hence, the Supreme Court affirmed the grant of a nonsuit as to
the personal-injury claim, but it reversed as to the economic claims and
granted the plaintiffs a new trial.
3. The Rules of Procedure & Right to Plead in the Alternative
The early and mid-1900s saw American jurisdictions adopt rules of civil
procedure that ended the common-law-pleading system and its procedural
difficulties. Of particular concern for reformers was the common law’s
insistence on deciding a single issue in a lawsuit. The form of action took
second place to effectuating full justice between the parties.
612, 612 (Pa. 1964). The disposition in Jones v. Boggs & Buhl, Inc., 49 A.2d 379 (Pa. 1946), barring the wife’s personal-injury claim no longer applies to sales of goods. However, the Jones Court’s application of the non-UCC statute of limitations to differing forms of remedy remained “sound rationale, i.e., that the express language of the [general statute of limitations] should not be avoided or circumvented . . . by allowing a party . . . to sue in one form of action, assumpsit, instead of another, tort.” Id. at 613 (some punctuation omitted).
17 At the time, Pennsylvania adhered to the common-law rule that, because
breach of contract originated from the intentional tort of deceit, every breach of contract entitled the plaintiff to, at a minimum, nominal damages. See J.B. Ames, The History of Assumpsit: Part I. – Express Assumpsit, 2 Harv. Law Rev. 1 (1888).
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On January 1, 1947, the Pennsylvania Rules of Civil Procedure took
effect and replaced the common-law-writ system with a writ of summons or
the filing of a complaint. See 1947 Edition of the Pennsylvania Rule of Civil
Procedure, Rule 1007. The various forms of action of trespass and assumpsit
remained, and the plaintiff retained the right to elect between the two actions.
Additionally, the new rules allowed parties to plead their claims and
defenses in the alternative. See id., Rule 1020(c); see also Martin v.
Wilson, 92 A.2d 193, 195 (Pa. 1952) (“the [trial court held] it would have
been obviously inconsistent for the defendant to assert nonliability, because
the agreement was not in writing and at the same time aver that there was
no agreement at all. But the objection to such inconsistency in pleading has
now been overcome by Pa.R.C.P. 1020(c).”). The purpose of the Rules of Civil
Procedure was to increase the parties’ access to the courts and to elevate
substance over the common-law forms.
Furthermore, as late as 1982, courts still understood that “gist of the
action” meant the defendant’s unlawful conduct. In a case involving a lender’s
negligent performance of a mortgage, this Court said, “The action here . . .
was properly brought in assumpsit, though sounding in tort. The gist of the
action was defendant’s negligence and though it might have been brought in
trespass, the real issue was whether defendant was guilty of neglect in the
performance of its contract.” Mancine v. Concord-Liberty Savings & Loan
Assoc., 445 A.2d 744, 747 (Pa. Super. 1982) (quoting Siegel v. Struble
Bros., Inc., 28 A.2d 352, 354 (Pa. Super. 1942)). Thus, plaintiffs could still
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proceed in either form of action, when a single gist simultaneously breached
a duty of care and a contract.
Then, in 1983, the Supreme Court gave plaintiffs even greater flexibility
by eliminating the common-law forms of action in favor of one “civil action.”
“All claims heretofore asserted in assumpsit or trespass shall be asserted in
one form of action to be known as ‘civil action.’” 1983 Edition of the
Pennsylvania Rules of Civil Procedure, Rule 1001(b)(1); 13 Pa.B. 53 at 3999.
The rules from Brown and Wingate, decided in the 1840s, became a
part of the Rules of Civil Procedure, because a plaintiff could sue for negligent
performance of a contract in either tort or contract. The Rules simplified the
process by allowing plaintiffs to sue in both forms of action. “If a transaction
or occurrence gives rise to more than one cause of action heretofore
asserted in assumpsit and trespass, against the same person, including causes
of action in the alternative, they shall be joined in separate counts in the action
against any such person.” Pa.R.C.P. 1020(d) (emphasis added). That Rule
expressly authorizes plaintiffs to bring two counts for the same unlawful act.
In addition, the statutes of limitations still bar certain damages. For
example, in 1985, this Court said, in determining which limitation period “will
control, it is necessary to determine the nature of the damages sought to
be recovered.” Murray v. University of Pennsylvania Hospital, 490 A.2d
839, 842 (Pa. Super. 1985) (emphasis added). “If recovery is sought for the
cost of completing performance of the contract or remedying defects in
performance, the applicable statute of limitations [is four] years.” Id. (citing
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Jones, supra; Colvin v. Smith, 276 A.D. 9, 92 N.Y.S. 2d 794 (N.Y. App. 3rd
Div. 1949)). “If, however, the damages sought to be recovered are for
personal injuries, the two-year period of limitation is clearly applicable.” Id.
Therefore, in Murray, we barred a patient who suffered a failed tubal ligation
and her husband from asserting personal injuries under the two-year statute
of limitations. However, we allowed the couple to sue the wife’s doctor for
economic damages from the breach of contract, because they sued within four
years of the operation. See id. at 438 (citing RESTATEMENT SECOND OF
CONTRACTS §§ 347, 348 (1979)).18
4. The Emergence of “Gist-of-the-Action Doctrine”
Despite the long-standing right of plaintiffs to elect a remedy between
contract and tort, in 1999, the United States District Court for the Western
District of Pennsylvania radically departed from that tradition. In Sunquest
Info. Sys., Inc. v. Dean Witter Reynolds, Inc., 40 F. Supp.2d 644, 651
(W.D. Pa. 1999), a plaintiff filed a complaint with multiple counts, including
breach of contract, fraud, and negligent misrepresentation.
The defendants filed a Federal Rule 12(b)(6) motion to dismiss the non-
contract claims. They argued that the “plaintiff’s misrepresentation claims
should be dismissed because this action fundamentally sounds in contract, not
18 Although the Murray Court applied an earlier version of the statutes of limitations, under the Statutory Construction Act, we apply the same interpretation to the current version, because the legislature used substantially similar language regarding the nature of the injury. See 1 Pa.C.S.A. 1922(4).
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in tort, and under Pennsylvania’s ‘gist-of-the-action’ doctrine, tort claims
cannot be maintained when they essentially duplicate an action for breach of
an underlying contract.” Sunquest, 40 F. Supp.2d at 651. It appears the
defendants coined the phrase “gist-of-the-action doctrine” and incorrectly
branded it as Pennsylvania law. Critically, they also used the wrong definition
of “gist,” i.e., the modern meaning of “essence” or “gravamen” of the plaintiff’s
action, instead of its historical, legal definition of a defendant’s unlawful act.
Regrettably, the Western District took the defense’s representations at
face value and presumed that there was, in fact, an established “gist-of-the-
action doctrine” in Pennsylvania. The court also adopted the defense’s modern
definition of “gist” and concluded that the “essence” of the lawsuit was breach
of contract. Therefore, it dismissed the fraud and negligent-misrepresentation
claims, as a matter of law, even though the plaintiff properly pleaded such
claims in its complaint. In dismissing the tort claims, the district court became
the first in history to adopt the phrase “gist-of-the-action doctrine.” See Alex
A. Tsiatsos, The Gist of the Action Doctrine: Lessons from Pennsylvania’s
Search for Cause of Action Essence, 119 W. Va. L. Rew. Online 1, 2 (2016).19
19 See also BLACK’S LAW DICTIONARY (10th Ed. 2014) at 805 (indicating that
the entomological origin of “gist-of-the-action doctrine” is circa 2000 and stating, “This term is most common in Pennsylvania but also appears in New Jersey, Delaware, the Virgin Islands, and elsewhere”). Indeed, Tsiatsos indicates in his article that the “doctrine” escaped across state lines thanks to the Third Circuit’s precedents and jurisdiction to those states and the U.S. Virgin Islands.
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By doing so, the district court resurrected the stringent, common-law-
writ system and forced plaintiffs to sue in either tort or contract. Further, it
eliminated the plaintiff’s right to elect the remedy, by relegating the plaintiff
to contract alone. Hence, Sunquest created a more restrictive process than
the common law and named it the “gist-of-the-action doctrine.”
Once a case such as Sunquest is “recorded for a precedent . . .
many an error, by the same example, will rush into the state.” William
Shakespeare, The Merchant of Venice, Act. IV, sc. 1, lines 228-230. Fifteen
years’ worth of error rushed into this Commonwealth following the decision in
Sunquest.
Pennsylvania trial courts soon began applying this new “doctrine” to
dismiss tort claims, but not contract claims, whenever plaintiffs alleged both
causes of action. The first court to do so in a published decision said, “the
misrepresentations on which plaintiffs depend are misrepresentations in the
course of performance, which, under Pennsylvania’s ‘gist of the action’
doctrine, are not actionable in fraud.” Foodarama Supermarkets Inc. v.
American Ins. Co., 43 Pa. D. & C.4th 467, 488 n.59 (C.C.P. Philadelphia
2000) (citing Sunquest).20
20 Under Pennsylvania law, an intentional misrepresentation is the unlawful conduct – the very gist of the action – for fraud. “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).
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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). There, a software developer sued its marketing company
for negligently performing an advertising contract. The marketing company
also falsified bills for work that its agents never performed, and the developer
paid those bills. Thus, the marketing company “stole money from [the
developer] under the guise of performing the contract.” Id. at 12.
The defendants moved for summary judgment on the tort claims, based
on the “gist-of-the-action doctrine.” The trial court agreed and dismissed the
tort claims. The developer appealed.
A panel of this Court adopted the doctrine and affirmed, even though
the panel acknowledged that the Supreme Court had never recognized such a
doctrine. Undeterred, the eToll Court said the doctrine “was recognized by
this Court for the first time in Bash v. Bell Telephone Co., 601 A.2d 825
(Pa. Super. 1992),”21 and barred the developer’s tort claims as sounding in
contract. Id. at 14. ____________________________________________
21 The panel’s reliance upon Bash v. Bell Telephone Co., 601 A.2d 825 (Pa.
Super. 1992) was misplaced. The Bash Court did not “recognize” the gist-of- the-action doctrine in 1992. Instead, it quoted the same section of the Eastern District’s 1977 case that Sunquest eventually relied upon when it created the doctrine in 1999. See Bash, 601 A.2d at 355-56. Bash also drew from Iron Mountain Security Storage Corp. v. American Specialty Foods, Inc., 457 F. Supp. 1158 (E.D. Pa. 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)
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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. Based on four unpublished, federal decisions, eToll said, “the
doctrine bars tort claims: (1) arising solely from a contract between the
parties; (2) where the duties allegedly breached were created and grounded ____________________________________________
at common law. 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. To permit a promisee to sue his promisor in tort for breaches of contract inter se would erode the usual rules of contractual recovery and inject confusion into our well-settled forms of actions.
Bash, 601 A.2d at 829 (quoting Iron Mountain, 457 F. Supp. at 1165) (emphasis added) (some punctuation omitted).
Iron Mountain based its holding on the “distinct differences between civil actions for tort and contract.” Id. In other words, the forms of action, due to common-law writs, which compelled plaintiffs to “pigeon-hole” their lawsuits into either an action for tort or an action for assumpsit. See THE FORMS OF ACTION AT COMMON LAW: A COURSE OF LECTURES at 4 (Cambridge U.P., 1965). Because separate forms of action for trespass and assumpsit still existed in Pennsylvania at the time of Iron Mountain, the common-law prohibition that “causes ex delicto and ex contractu cannot be joined in the same action” still held sway. Baccini v. Montgomery, 46 Pa. D. & C.2d 219 (C.C.P. Del. 1969). Pennsylvania plaintiffs needed to make their election of remedy at the outset of their case. Thus, the plaintiff in Iron Mountain could not join assumpsit and trespass counts in a single lawsuit.
By the time of Bash, separate forms of action no longer existed. “The procedural distinctions between the forms of action in assumpsit, trespass and equity are abolished.” Pa.R.C.P. 1001, Note. Thus, the Supreme Court had ended the pigeon-holing of plaintiffs’ complaints. The Rules of Civil Procedure permitted all causes of action to be pleaded, even in the alternative, in one civil action. Therefore, the concerns and the rationale of the Iron Mountain Court for preserving “our well-settled forms of actions” no longer applied. Iron Mountain, 457 F. Supp. at 1165.
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in the contract itself; (3) where the liability stems from a contract; or (4)
where the tort claim essentially duplicates a breach of contract claim or the
success of which is wholly dependent on the terms of a contract.” Id. at 19
(emphasis added) (some punctuation and citations omitted).
Like Sunquest, the eToll Court elected the contract claims for the
plaintiff and dismissed the tort claims. Notably, eToll never hinted, much less
held, that the gist-of-the-action doctrine applied in reverse, i.e., that it
prevented plaintiffs from bringing contract claims when the breach of contract
might also be a tort.
After eToll, this Court and other Pennsylvania courts began a quixotic
quest to distill the legal essence of plaintiffs’ lawsuits to determine whether
tort claims could proceed. Specifically, we stated that the “gist-of-the-action
doctrine precludes a party from raising tort claims where the essence of the
claim actually lies in a contract that governs the parties’ relationship.”
Sullivan v. Chartwell Inv. Partners, LP, 873 A.2d 710, 718 (Pa. Super.
2005) (emphasis added). Similarly, BLACK’S LAW DICTIONARY (10th Ed. 2014)
explained, “The doctrine prevents plaintiffs from recasting contract claims as
tort claims.” Id. at 805. Under eToll and its progeny, we only applied the
gist-of-the-action doctrine to bar tort claims, not contract claims.
5. The Reformed Gist-of-the-Action Doctrine
In 2014, the Supreme Court granted allowance of appeal in Bruno v.
Erie Insurance Co., 106 A.3d 48 (Pa. 2014), to examine the gist-of-the-
action doctrine relative to a plaintiff’s tort claims. In Bruno, a husband and
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wife purchased insurance for a new home. A few months later, they informed
the insurance company there was mold in their basement. The company sent
an adjuster and engineer to investigate. Afterwards, they informed the Brunos
that the mold was harmless to humans. See Bruno, 106 A.3d at 51-53. The
Brunos relied on this advice, remained in the home, and became very ill from
black mold. They sued the insurance company and asserted only tort claims.
Like the oil broker in Brown nearly 175 years earlier, the insurance
company argued that the Brunos could not sue in tort, because the parties’
contract established the extent of the company’s duties. The trial court agreed
and dismissed the case. The Brunos appealed, and this Court affirmed.
The Supreme Court granted review of “whether a negligence claim
brought against an insurer by its insureds . . . was barred by the ‘gist-of-the-
action’ doctrine on the grounds that the true gist or gravamen of the action
was an alleged breach of the insurance contract . . . .” Bruno, 106 A.3d at
50 (emphasis added). The High Court held that the gist-of-the-action doctrine
did not bar the Brunos’ tort claims, even though the Brunos had a contract
with the insurance company. See id. at 71.
The Court “endorsed the principle that, merely 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,
106 A.3d at 63. Bruno recalibrated the gist-of-the-action doctrine as a test
based on the duty that the defendant allegedly breached. The Supreme Court
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rejected the “essence” test that this Court announced in eToll.22 Therefore,
Bruno overruled the eToll “essence” test and any decisions between 2002
and 2014, which applied that test to compel plaintiffs to sue solely in contract.
Notably, Bruno did not review whether the choice between tort and
contract remedies is necessarily binary under the Rules of Civil Procedure.
Because the Brunos did not bring a breach-of-contract claim, that question
was not before the Justices. They only decided whether a tort claim could
exist when the parties had a contract.
Thus, Bruno did not reconsider the long-standing right of plaintiffs to
elect their remedy at common law, anytime one unlawful act breaches both a
contract and a general duty. The Bruno Court did not hear argument on or
consider the continued validity of cases such as M’Call, Smith, Brown,
Wingate and their progeny. Moreover, we decline to presume that the
Supreme Court abrogated that body of common law sub silentio. Those
precedents remain in effect and allow plaintiffs to elect the remedy they seek
to recover.
In short, contract claims never were, and are not now, subject to the
gist-of-the-action doctrine. Bruno did not state (and our research revealed
no binding authority) that the gist-of-the-action doctrine converts a plaintiff’s ____________________________________________
22 We note that the broader issue of whether the “gist-of-the-action doctrine”
ever actually existed or should continue to be a part of Pennsylvania law was not before the High Court. Moreover, the Brunos began their argument by conceding the existence of the doctrine and only argued the eToll “essence- test” was unworkable. See Bruno v. Erie Insurance Co., 106 A.3d 48, 57- 58 (Pa. 2014).
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contract claims into tort claims. The doctrine does not extinguish contractual
rights, simply because the defendant’s conduct may also be a tort. Hence, we
hereby overrule any post-Bruno cases of this Court and our trial courts that
applied the gist-of-the-action doctrine as a binary choice of remedy to bar
contract claims.23
6. Ann Marie’s Contract Claims
Here, the trial court dismissed Ann Marie’s counts for breach of contract
under the gist-of-the-action doctrine, because the court ruled that those
counts were, in essence, tort claims masquerading as contract claims. Based
on our above discussion, the trial court erred.
Ann Marie’s contract claims were:
particular claims . . . that the duties breached were ones created by the parties by the terms of their contract — 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 — and the claims are to be viewed as ones for breach of contract.
Bruno, 106 A.3d at 68 (cleaned up) (emphasis added).
23 See, e.g., Johnstone v. Raffaele, 241 A.3d 479 (Pa. Super. 2020) (non-
precedential); Corliss v. Lee A. Ciccarelli, PC, 272 A.3d 457 (Pa. Super. 2022) (non-precedential); and Outerlimits Techs., LLC v. O’Connor, 311 A.3d 569 (Pa. Super. 2023) (non-precedential). In addition, we disapprove of the decision in New York Cent. Mut. Ins. Co. v. Edelstein, 637 F. App’x 70 (3d Cir. 2016) (non-precedential), as wrongly decided. But see also, Sibley v. Barr & McGogney, 260 A.3d 132, *2 (Pa. Super. 2021) (non- precedential) (Stabile, J. correctly refusing to apply the gist-of-the-action doctrine to bar a plaintiff’s contract claims and saying, “Under Pennsylvania law, a client may bring both a contract action and a tort action against a professional.”)
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She alleged the Nursing Home promised but failed to provide Madlyn
with a “room, meals, housekeeping services, use of walker or wheelchair when
medically necessary, nursing care, linen and bedding, and such other personal
services as may be required for the health, safety, welfare, good grooming
and well-being of” Madlyn. Ann Marie’s Opposition to Nursing Home’s Motion
for Summary Judgment, Ex. A (“Contract”). These are specific promises in
the Contract, i.e., contractual duties sufficient to maintain breach-of-contract
claims.
Ann Marie also averred that the Nursing Home negligently performed its
contractual duties to Madlyn. Thus, like the Boormans in Brown and the bank
customers in Wingate, her pleading effectively alleged that the Nursing Home
breached its implied promise to perform the Contract in a professionally skillful
and competent manner. See Brown and Wingate, supra. Ann Marie’s
contract claims may proceed to trial.
To the extent she seeks to recover economic damages (as opposed to
personal injuries), arising from the Nursing Home’s breach of contract, Ann
Marie’s final issue is meritorious. See Jones and Murray, supra (allowing
economic damages to proceed but barring damages for personal injuries under
that two-year statute of limitations).
V. Conclusion
In sum, we affirm the dismissal of all claims against the Pharmacy. Also,
the trial court correctly ruled that Hawbaker and Swatt are separate actions;
Hawbaker is not properly before us in this appeal. In Swatt, the trial court
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correctly dismissed Ann Marie’s claims for Madlyn’s personal injuries arising
from medical malpractice as untimely, because the two-year statute of
limitations bars them.
Finally, the trial court misapplied the gist-of-the-action doctrine to bar
Ann Marie’s contract claims. Since early common law, plaintiffs could freely
elect their remedy and sue in either contract or tort, when the facts supported
both forms of action. Today, the Rules of Civil Procedure allow a plaintiff to
plead both tort and contract claims in the same lawsuit.
After Bruno, Pennsylvania courts must review each claim individually
to determine whether the plaintiff has alleged or offered sufficient proof
(depending on the stage of the proceedings) that the defendant breached the
particular duty (tort or contractual) for each particular claim. If so, the
claim proceeds to trial. Courts should keep in mind that there are instances
when a single gist of the action (one unlawful act) breaches both a general
duty of care, as well as an expressed or implied contractual duty. While double
recovery for the same unlawful act is generally prohibited, multiple claims can
proceed to trial, if timely filed.
Order at 1506 MDA 2021 affirmed in part and reversed in part. Case
remanded for further proceedings consistent with this Opinion. Jurisdiction
relinquished.
Appeal at 1507 MDA 2021 quashed as premature.
P.J.E. Panella and Judges Dubow, Murray, Sullivan, and Beck join this
Opinion.
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P.J. Lazarus files a Concurring Opinion in which P.J.E. Panella and Judges
Dubow, Kunselman, Murray, Sullivan and Beck join.
Judge Stabile files a Concurring/Dissenting Opinion.
Judge King files a Concurring/Dissenting Opinion.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 07/02/2025
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Cite This Page — Counsel Stack
2025 Pa. Super. 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hawbaker-j-v-nottingham-village-pasuperct-2025.