Poteat, A. v. Asteak, G.

2024 Pa. Super. 52

• Court: Superior Court of Pennsylvania
• Decided: March 21, 2024
• Docket: 729 EDA 2023
• Status: Published

Opinion

J-A21027-23

2024 PA Super 52

ANTOINE POTEAT : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : GARY ASTEAK AND NINO V. TINARI : No. 729 EDA 2023

Appeal from the Order Entered February 7, 2023 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2022-C-02045

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.: FILED MARCH 21, 2024

Appellant, Antoine Poteat, appeals pro se from the February 7, 2023

order entered in the Lehigh County Court of Common Pleas that sustained the

preliminary objections filed by Appellees, Gary Asteak, Esq., and Nino v.

Tinari, Esq., and dismissed his complaint for breach of contract with prejudice.

Appellant challenges the trial court’s application of the gist of the action

doctrine. Upon review, we find that the trial court erred. Even though the

duty that Appellees undertook in the contract with Appellant is similar to the

duty that a plaintiff could assert in a malpractice claim, the gist of the action

doctrine does not authorize the trial court to 1) recharacterize a contract claim

as a tort claim and, thus, extinguish a plaintiff’s rights that the parties agreed

to in a contract and then 2) dismiss the complaint on the grounds that the

statute of limitation bars the tort claim. Accordingly, we reverse. J-A21027-23

The relevant procedural and factual history is as follows. Appellant

entered into a written agreement to pay Appellees $7500 each in exchange

for competent legal services and representation (“Retainer Agreement”)

during Appellant’s criminal prosecution for multiple counts of Possession with

Intent to Deliver (“PWID”). After the trial court convicted Appellant and

sentenced him to 5 to 10 years’ incarceration, Appellant filed a pro se petition

pursuant to the Post Conviction Relief Act (“PCRA”) alleging ineffective

assistance of trial counsel for failing to file a speedy trial motion pursuant to

Pa.R.Crim.P. 600 (“Rule 600”) as well as a motion for credit for time served.

The PCRA court found Appellees to be ineffective in their legal representation

of Appellant and granted Appellant a new trial.

Consequently, on September 19, 2022, Appellant filed a pro se breach

of contract complaint against Appellees and averred that both “failed to

adequately perform with regards to the applicable standards of competence

and diligence required in the field and profession of law[.]” Complaint,

9/19/22, at ¶ 28. Specifically, Appellant averred that Appellees both failed to

raise Rule 600 issues, that Attorney Tinari failed to request credit for time

served at the time of Appellant’s sentencing, and that Appellant was

incarcerated for almost four years because of Appellees’ failure to competently

perform their legal duties. Id. at ¶ 28-30. Appellant requested both

compensatory and punitive damages.

Appellees both filed preliminary objections in the nature of a demurrer,

averring that Appellant’s breach of contract claim is legally insufficient based

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on the gist of the action doctrine. Appellees argued that Appellant’s claim

sounds in tort, namely negligence, and fails to allege a breach of a specific

executory promise in the parties’ Retainer Agreement. Appellees concluded

that since Appellant’s claim was only one in negligence, the statute of

limitations barred the claim. Appellant filed a response asserting that a breach

of a specific contractual term is unnecessary and general assertions of a

breach of duty are sufficient.

On February 7, 2023, the trial court sustained Appellees’ preliminary

objections by recasting Appellant’s breach of contract as a tort claim and

concluding that the statute of limitations barred the tort claim.1

Appellant filed a timely pro se notice of appeal. Both Appellant and the

trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court commit legal error when it opined the gist of the action doctrine barred a breach of contract/legal malpractice [claim] against a[] criminal attorney with a contract?

2. Did the trial court improperly use the gist of the action doctrine?

3. Did the trial court commit legal error in dismissing [] Appellant’s complaint with prejudice?

Appellant’s Br. at 6 (reordered for ease of disposition, some capitalization

omitted). ____________________________________________

1 An action sounding in tort is subject to a two-year statute of limitations, while a breach of contract claim is subject to a four-year statute of limitations. See 42 Pa.C.S. §§ 5524 and 5525.

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A.

In sustaining Appellees’ preliminary objections in the nature of a

demurrer, the trial court concluded that Appellant’s complaint was legally

insufficient pursuant to Pa.R.Civ.P. 1028(a)(4). The question of whether a

complaint is legally insufficient involves a pure question of law, such that our

standard of review is de novo. Catanzaro v. Pennell, 238 A.3d 504, 507

(Pa. Super. 2020).

A trial court must resolve preliminary objections “solely on the basis of

the pleadings; no testimony or other evidence outside of the complaint may

be considered[.]” Hill v. Ofalt, 85 A.3d 540, 547 (Pa. Super. 2014) (citation

omitted). In ruling on preliminary objections in the nature of a demurrer, the

trial court must “accept as true all well-pleaded allegations of material fact

and all reasonable inferences deducible from those facts and resolve all doubt

in favor of the non-moving party.” Palmiter v. Commonwealth Health

Sys., Inc., 260 A.3d 967, 970 (Pa. Super. 2021) (citation and quotation

marks omitted). Moreover, preliminary objections seeking dismissal of a

cause of action “should be sustained only in cases in which it is clear and free

from doubt that the pleader will be unable to prove facts legally sufficient to

establish the right to relief.” Catanzaro, 238 A.3d at 507 (citation omitted).

Appellate courts “apply the same standard as the trial court in evaluating the

legal sufficiency of the complaint, and examine whether, on the facts averred,

the law says with certainty that no recovery is possible.” Palmiter, 260 A.3d

at 971.

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B.

In his first two issues, Appellant avers that the trial court erred when it

sustained Appellees’ preliminary objections by relying on the gist of the action

doctrine to recharacterize Appellant’s breach of contract action as a tort action

and then concluding that the statute of limitations bars the tort claim.

Appellant’s Br. at 6. In particular, Appellant avers that his complaint alleges

a breach of contract and the contract implicitly imposed on Appellees the duty

to provide services consistent with the profession at large and thus, the trial

court erred in recharacterizing his contract claim as a tort claim. Id. at 11,

17. We agree.

The trial court opined that Appellant failed to allege a specific breach of

a specific duty imposed by the contract:

Pursuant to the factual allegations of [Appellant]’s [c]omplaint, the gist of the action is one of tort, specifically professional negligence. Asserting only factual allegations of professional negligence is not sufficient to support a breach of contract cause of action. The breach of contract claim as pled is legally insufficient as it did not allege a specific breach of a specific duty imposed by the contract. Accordingly, this court sustains [Appellant]’s preliminary objections in the nature of a demurrer and dismisses [Appellant]’s [c]omplaint in its entirety.

Trial Ct. Op., dated 2/7/23, at 6-7 (emphasis added).

The trial court, however, ignores the holding in Bailey v. Tucker, 621

A.2d 108, 115 (Pa. 1993), in which the Pennsylvania Supreme Court

addressed the special nature of an attorney-client agreement and the terms

implicit in such an agreement. Our Supreme Court explained that “an attorney

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who agrees for a fee to represent a client is by implication agreeing to

provide that client with professional services consistent with those

expected of the profession at large.” Id. (emphasis added).

This Court adopted a similar holding in Gorski v. Smith, 812 A.2d 683,

692 (Pa. Super. 2002), when we found that when an attorney and client enter

into an agreement for the attorney to provide legal services, the agreement

contains an implicit “contractual duty” on the attorney to render legal services

in a manner that comports with the profession at large:

Bailey established the proposition that every contract for legal services contains, as an implied term of the contract, a promise by the attorney to render legal services in accordance with the profession at large. Thus, when an attorney enters into a contract to provide legal services, there automatically arises a contractual duty on the part of the attorney to render those legal services in a manner that comports with the profession at large. Hence, a breach of contract claim may properly be premised on an attorney's failure to fulfill his or her contractual duty to provide the agreed upon legal services in a manner consistent with the profession at large.

Id. at 694 (emphasis added). Thus, we found that the trial court erred in

concluding that the legal services agreement between Appellant and Appellees

did not impose a “specific duty” on Appellees.

Accordingly, it is clear that our case law imposes a duty, albeit an implicit

one, on attorneys to perform legal services in a professional manner.2 The

____________________________________________

2 We note that the trial court, in concluding that Appellant failed to identify a

duty that Appellees breached in their Retainer Agreement, relies on Lincher v. Wyrich, No. 2.20-CV-1843, 2021 WL 5363324 at *4 (W.D. Pa. June 30, (Footnote Continued Next Page)

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court here erred when it failed to acknowledge this implicit contractual duty

and, as a result, incorrectly found that the Retainer Agreement did not impose

a duty on Appellees to provide legal services in manner consistent with the

profession at large.

D.

The trial court also erred by invoking the gist of the action doctrine to

extinguish Appellant’s rights provided for in the Retainer Agreement. The gist

of the action doctrine is generally “designed to maintain the conceptual

distinction between breach of contract claims and tort claims. As a practical

matter, the doctrine precludes plaintiffs from re-casting ordinary breach of

contract claims into a tort claim.” Mirizio v. Joseph, 4 A.3d 1073, 1079 (Pa.

Super. 2010).

Our Supreme Court has articulated the “fundamental principles

comprising the gist of the action doctrine have long been an integral part of

our Court’s jurisprudence and have . . . been employed by our Court for the

purpose of determining whether a plaintiff may, as a matter of law, bring

an action in tort for a defendant’s alleged negligent acts committed

2021), a case from the Western District of Pennsylvania that relied on unpublished Superior Court and federal court decisions to conclude that “Gorski’s broad interpretation is no longer correct.” Obviously, it is only the Pennsylvania Supreme Court that can overrule Gorski. Until such time, Gorski as well as Bailey remain the law in Pennsylvania and legal services agreements implicitly impose on counsel the duty to perform legal services in a manner that comports with the profession at large.

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during the existence of their contractual relationship.” Bruno v. Erie

Insurance Company, 106 A.3d 48, 68 (Pa. 2014) (emphasis added).

To make the determination of whether a plaintiff may maintain a

negligence claim against a defendant when the parties have a contract, the

Supreme Court found that “[i]f the facts of a particular claim establish that

the duty breached is one 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—then the claim is

to be viewed as one for breach of contract.” Id. In contrast, “[i]f, however,

the facts establish that the claim involves the defendant’s violation of a

broader social duty owed to all individuals, which is imposed by the law of

torts and, hence exists regardless of the contract, then it must be regarded

as a tort.” Id. (citations omitted). To make that determination, the Supreme

Court held “the nature of the duty alleged to have been breached, as

established by the underlying averments supporting the claim in a plaintiff’s

complaint, to be the critical determinative factor in determining whether the

claim is truly one in tort, or for breach of contract.” Id. at 69 (emphasis

added; footnote omitted).

The Supreme Court applied these principles to the facts of Bruno—a

case relied on heavily by the trial court—and concluded that the duty that the

contract imposed on the defendant was different from the duty alleged in the

complaint and thus, the contract did not preclude the plaintiff from asserting

a tort claim. In Bruno, the plaintiff/homeowners had purchased homeowner’s

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insurance from the defendant/insurance company. The plaintiffs informed

their homeowner insurance company that they had found mold in their home.

The defendant insurance company retained an engineer and adjuster to

determine whether there was mold in the plaintiff’s home. The engineer and

adjuster came to their home to investigate mold and informed the

homeowners that the mold was harmless and had no health consequences.

Id. at 51-53.

The homeowners relied on this advice, later suffered health problems

from mold exposure, and sued the defendant/insurance company. The

homeowner/plaintiff asserted a tort claim against the defendant/insurance

company, alleging that its engineer and adjuster negligently advised the

homeowners about the risk of exposure to mold. Id. The

defendant/insurance company argued that the gist of the action doctrine

precluded the plaintiff from maintaining its tort claims because the insurance

contract determined the scope of the insurance company’s duty to the

homeowner and the contract did not impose the duty to provide accurate

advice about mold to the homeowner. Our Supreme Court disagreed and

concluded the gist of the action doctrine did not apply because the negligence

claim was based on an alleged breach of a social duty imposed by the law of

torts, and not a breach of a duty created by the underlying contract of

insurance. Id. at 50-51. Thus, even though the plaintiff and defendant had

a contractual relationship, the duty expressed in the contract differed from the

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duty the plaintiff asserted in its tort claim, so the gist of the action doctrine

did not bar the plaintiff from asserting a tort claim.

In this case, as stated above, the trial court relied heavily on the analysis

set forth in Bruno to conclude that even though Appellants and Appellees had

entered into a binding contract, the gist of the action doctrine extinguished

any rights that the Retainer Agreement provided to Appellant. Trial Ct. Op.

at 6. The trial court reasoned that because the contractual duty that Appellee

asserted in the complaint was the same duty that Appellee could have

asserted in a tort claim, namely factual allegations of professional negligence,

the gist of the action doctrine converted the contractual duty into a tort duty

and thus, extinguished Appellants’ duty inherent in the contract. Id. In other

words, the trial court used the gist of the action doctrine to extinguish any

duty Appellees undertook in the Retainer Agreement on the grounds that

Appellant could assert that same duty in a tort claim.

The trial court misapplied the holding in Bruno. The Supreme Court

articulated the principles for the gist of the action doctrine as applying to

whether a plaintiff who has a contract with a defendant may maintain a tort

claim as well. The Supreme Court did not hold, and we have found no binding

authority, for the trial court’s conclusion that the gist of the action doctrine

extinguishes any rights that the contract provides a plaintiff when the duty

the defendant undertook in the contract is the same duty that a tort claim

would impose on a defendant. In other words, the gist of the action doctrine

does not extinguish contractual rights; it merely addresses whether a plaintiff

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can assert a tort claim when the duty set forth in the contract is similar to the

duty that the plaintiff alleges in a tort claim.

Returning to the facts of this case, Appellant alleged that Appellees

breached the Retainer Agreement by providing ineffective counsel.

Specifically, Appellant avers that (1) he signed a Retainer Agreement with

Appellees, (2) Appellees failed to adequately perform with regards to the

applicable standards of competence and diligence required in the field and

profession of law, and (3) he was convicted of multiple counts of PWID and

incarcerated from September 21, 2015, to July 9, 2019, due to Appellees’

failure to competently perform their legal duties. Complaint at ¶¶ 24-25, 28-

30. Appellant did not allege a tort claim but, rather, a valid breach of contract

claim. Thus, the trial court erred in converting the breach of contract claim

into a negligence claim and then dismissing the claim on the basis of the

statute of limitations.

Accordingly, we conclude that the trial court erred when it sustained

Appellees preliminary objections and dismissed the complaint with prejudice.

Order reversed. Jurisdiction relinquished.

Date: 3/21/2024

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