J-E04001-24
2025 PA Super 277
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: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION BY DUBOW, J.: FILED DECEMBER 11, 2025
Appellant, Antoine Poteat, appeals 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.
We reverse on two grounds. First, we find that the trial court erred in applying
the gist of the action doctrine to dismiss this contract action, and second, we
find that the trial court erred in determining that Mr. Poteat was required to
identify a specific provision in the retainer agreement that imposed a duty on
Appellees. Accordingly, we reverse.
We start by briefly reiterating the facts alleged in the complaint, which
we accept as true at this stage of the proceedings, and against which we test
the legal sufficiency of the breach of contract claim. Mr. Poteat entered into
a retainer agreement with Appellees to provide legal services in a criminal J-E04001-24
matter and paid them each $7,500.1 Following the criminal trial, the court
convicted Mr. Poteat and sentenced him to five to ten years’ incarceration.
Mr. Poteat filed a Post Conviction Relief Act Petition, which the trial court
granted on the grounds that Appellees provided ineffective representation of
Mr. Poteat during the criminal proceedings.
Consequently, on September 19, 2022, Mr. Poteat filed a complaint
against Appellees alleging that Appellees breached the retainer agreement by
failing to provide competent legal services. In the complaint, however, Mr.
Poteat failed to allege that the retainer agreement included an explicit
provision that Appellees would provide competent legal services.
Appellees filed preliminary objections in the nature of a demurrer,
averring that Mr. Poteat’s breach of contract claim was legally insufficient
based on the gist of the action doctrine. Appellees argued that Mr. Poteat’s
claim sounded in tort, namely negligence, and since Mr. Poteat’s claim was
only one in negligence, the statute of limitations barred the claim. Appellees
further argued that the complaint was legally insufficient because it failed to
allege a breach of a specific executory promise in the retainer agreement. Mr.
Poteat filed a response asserting that a breach of a specific contractual term
was unnecessary and general assertions of a breach of duty are sufficient.
____________________________________________
1 Neither retainer agreement appears in the record and their absence was not
raised in Appellees’ preliminary objections.
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On February 7, 2023, the trial court sustained Appellees’ preliminary
objections by recasting Mr. Poteat’s breach of contract claim as a tort claim,
concluding that the statute of limitations barred the tort claim, 2 and dismissing
the complaint with prejudice.
Mr. Poteat appealed and raises the following issue for our review:
“Whether the trial court properly granted preliminary objections after
converting the plaintiff’s breach of contract claim into a tort claim pursuant to
the gist of the action doctrine.” Appellant’s Br. at 2.
In sustaining Appellees’ preliminary objections in the nature of a
demurrer, the trial court concluded that Mr. Poteat’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
2 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. We further note that “in determining which limitation period will control, it is necessary to determine the nature of the damages sought to be recovered.” Swatt v. Nottingham, -- A.3d.--, 2025 WL 1821998, *20 (Pa. Super. filed July 2, 2025) (citations, quotation marks, and emphasis omitted). As such, if a plaintiff seeks damages for personal injuries, a two-year statute of limitations applies, but if a plaintiff seeks economic damages from the breach of a contract, a four-year statute of limitations applies. Id. In this case, Mr. Poteat would only be entitled to economic damages.
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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.
Gist of the Action Doctrine Claim
Recently, an en banc panel of this Court concluded that the gist of the
action doctrine does not allow a trial court to convert a breach of contract
claim into a tort claim and then dismiss the claim based on the statute of
limitations. Swatt v. Nottingham Village, -- A.3d.--, 2025 WL 1821998,
*24 (Pa. Super. filed July 2, 2025). The Swatt Court held that “contract
claims never were, and are not now, subject to the gist-of-the-action-
doctrine” and further held that “[t]he doctrine does not extinguish contractual
rights, simply because the defendant’s conduct may also be a tort.” Id.
-4- J-E04001-24
Here, the trial court characterized Mr. Poteat’s breach of contract claim
as sounding in tort and opined: “[p]ursuant to the factual allegations of [Mr.
Poteat]’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.”
Trial Ct. Op., 2/7/23, at 6-7 (emphasis added).
Pursuant to Swatt, the trial court in this case erred when it applied the
gist of the action doctrine to convert Mr. Poteat’s breach of contract claim into
a tort claim and extinguish Mr. Poteat’s breach of contract claim. The gist of
the action doctrine does not apply to this case because Mr.
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J-E04001-24
2025 PA Super 277
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: LAZARUS, P.J., PANELLA, P.J.E., STABILE, J., DUBOW, J., KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and BECK, J.
OPINION BY DUBOW, J.: FILED DECEMBER 11, 2025
Appellant, Antoine Poteat, appeals 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.
We reverse on two grounds. First, we find that the trial court erred in applying
the gist of the action doctrine to dismiss this contract action, and second, we
find that the trial court erred in determining that Mr. Poteat was required to
identify a specific provision in the retainer agreement that imposed a duty on
Appellees. Accordingly, we reverse.
We start by briefly reiterating the facts alleged in the complaint, which
we accept as true at this stage of the proceedings, and against which we test
the legal sufficiency of the breach of contract claim. Mr. Poteat entered into
a retainer agreement with Appellees to provide legal services in a criminal J-E04001-24
matter and paid them each $7,500.1 Following the criminal trial, the court
convicted Mr. Poteat and sentenced him to five to ten years’ incarceration.
Mr. Poteat filed a Post Conviction Relief Act Petition, which the trial court
granted on the grounds that Appellees provided ineffective representation of
Mr. Poteat during the criminal proceedings.
Consequently, on September 19, 2022, Mr. Poteat filed a complaint
against Appellees alleging that Appellees breached the retainer agreement by
failing to provide competent legal services. In the complaint, however, Mr.
Poteat failed to allege that the retainer agreement included an explicit
provision that Appellees would provide competent legal services.
Appellees filed preliminary objections in the nature of a demurrer,
averring that Mr. Poteat’s breach of contract claim was legally insufficient
based on the gist of the action doctrine. Appellees argued that Mr. Poteat’s
claim sounded in tort, namely negligence, and since Mr. Poteat’s claim was
only one in negligence, the statute of limitations barred the claim. Appellees
further argued that the complaint was legally insufficient because it failed to
allege a breach of a specific executory promise in the retainer agreement. Mr.
Poteat filed a response asserting that a breach of a specific contractual term
was unnecessary and general assertions of a breach of duty are sufficient.
____________________________________________
1 Neither retainer agreement appears in the record and their absence was not
raised in Appellees’ preliminary objections.
-2- J-E04001-24
On February 7, 2023, the trial court sustained Appellees’ preliminary
objections by recasting Mr. Poteat’s breach of contract claim as a tort claim,
concluding that the statute of limitations barred the tort claim, 2 and dismissing
the complaint with prejudice.
Mr. Poteat appealed and raises the following issue for our review:
“Whether the trial court properly granted preliminary objections after
converting the plaintiff’s breach of contract claim into a tort claim pursuant to
the gist of the action doctrine.” Appellant’s Br. at 2.
In sustaining Appellees’ preliminary objections in the nature of a
demurrer, the trial court concluded that Mr. Poteat’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
2 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. We further note that “in determining which limitation period will control, it is necessary to determine the nature of the damages sought to be recovered.” Swatt v. Nottingham, -- A.3d.--, 2025 WL 1821998, *20 (Pa. Super. filed July 2, 2025) (citations, quotation marks, and emphasis omitted). As such, if a plaintiff seeks damages for personal injuries, a two-year statute of limitations applies, but if a plaintiff seeks economic damages from the breach of a contract, a four-year statute of limitations applies. Id. In this case, Mr. Poteat would only be entitled to economic damages.
-3- J-E04001-24
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.
Gist of the Action Doctrine Claim
Recently, an en banc panel of this Court concluded that the gist of the
action doctrine does not allow a trial court to convert a breach of contract
claim into a tort claim and then dismiss the claim based on the statute of
limitations. Swatt v. Nottingham Village, -- A.3d.--, 2025 WL 1821998,
*24 (Pa. Super. filed July 2, 2025). The Swatt Court held that “contract
claims never were, and are not now, subject to the gist-of-the-action-
doctrine” and further held that “[t]he doctrine does not extinguish contractual
rights, simply because the defendant’s conduct may also be a tort.” Id.
-4- J-E04001-24
Here, the trial court characterized Mr. Poteat’s breach of contract claim
as sounding in tort and opined: “[p]ursuant to the factual allegations of [Mr.
Poteat]’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.”
Trial Ct. Op., 2/7/23, at 6-7 (emphasis added).
Pursuant to Swatt, the trial court in this case erred when it applied the
gist of the action doctrine to convert Mr. Poteat’s breach of contract claim into
a tort claim and extinguish Mr. Poteat’s breach of contract claim. The gist of
the action doctrine does not apply to this case because Mr. Poteat has pled a
breach of contract claim when he alleged that Appellees breached the retainer
agreement by failing to provide competent legal services; not a tort claim.
Implicit Duty to Provide Competent Legal Services
In sustaining the preliminary objections in the nature of a demurrer and
dismissing Mr. Poteat’s complaint in its entirety, the trial court also opined
that “the breach of contract claim as pled is legally insufficient” because Mr.
Poteat failed to “allege a breach of a specific duty imposed by the contract.”
Trial Ct. Op. at 6-7. In reaching this conclusion, the trial court relied on Bruno
v. Erie Ins. Co., 106 A.3d 48 (Pa. 2014), and rejected our Supreme Court’s
holding in Bailey v. Tucker, 621 A.2d 108 (Pa. 1993), and this Court’s
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decision in in Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002).3 See Trial
Ct. Op. at 5.
The trial court erred in relying on Bruno to support its position that a
breach of contract claim must be founded on the breach of a specific executory
promise rather than an implied duty. Simply put, Bruno does not discuss the
enforceability of an implicit duty that a defendant undertakes in a contract.
More specifically, Bruno does not address the enforceability of an implied
contractual provision requiring a lawyer to provide competent legal services. 4
Thus, Bruno does not support the trial court’s conclusion that Mr. Poteat’s
complaint is legally insufficient.
3 We note that the trial court, in concluding that Mr. Poteat failed to identify a
duty that Appellees breached in their Retainer Agreement, relies on an unpublished memorandum opinion, Lindner v. Wyrich, No. 2:20-CV-1843, 2021 WL 5363324, at *4 (W.D. Pa. June 30, 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, as discussed infra, legal services agreements implicitly impose on counsel the duty to perform legal services in a manner that comports with the profession at large. See Gorski, 812 A.2d at 694; Bailey, 621 A.2d at 115
4 Rather, in Bruno, a case involving a contract between a homeowner and an
insurance company, our Supreme Court addressed whether a plaintiff can assert both a tort claim and a breach of contract claim when the duty set forth in the contract is similar to the duty that the plaintiff alleges was breached as part of his or her negligence action. Bruno, 106 A.3d at 50.
-6- J-E04001-24
Moreover, Bailey and Gorski are precedential, instructive, and support
the public policy that when attorneys enter into a contract to provide legal
services, they undertake a contractual duty to provide competent legal
services and clients have the right to enforce such a duty. Even if the
agreement does not explicitly include this language, it is a condition that both
parties contemplate and should be a basis for a client to assert a breach of
contract claim.
In Bailey, our Supreme Court addressed the special nature of an
attorney-client agreement and the terms implicit in such an agreement. Our
Supreme Court explained that “if an attorney agrees to provide his or her best
efforts and fails to do so, an action will accrue. Of course, an attorney 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.” Bailey, 621 A.2d at 115 (emphasis added).
This Court rendered a similar holding in Gorski when we concluded 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 competent legal services and that the implied duty
can serve as a basis for a breach of contract claim. As this Court found:
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
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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.
Gorski, 812 A.2d at 694 (emphasis added).
Accordingly, our case law imposes a duty, albeit an implicit one, on an
attorney when he enters into a contract to perform legal services to do so in
a competent manner.
Moreover, Gorski provides legal support for the proposition that a claim
for breach of contract to perform competent legal services can be based solely
upon that implied obligation. Id. We see no legal basis for finding that this
implicit provision, which is foundational and central to the attorney’s
professional duty to provide competent legal services, cannot provide an
independent basis for a cause of action. In other words, when an attorney
enters into a contract to provide legal services, he implicitly agrees to provide
competent legal services.
Accordingly, we hold that a plaintiff has an enforceable contractual right
against his or her retained attorney based solely on an implied duty of the
defendant/attorney to represent a client in a manner that comports with the
professional standards of the legal profession. Stated another way, the
implied duty, alone, may satisfy the duty element of a claim for breach of a
contract for legal services.
-8- J-E04001-24
For the foregoing reasons, we conclude that the trial court erred when
it sustained Appellees’ preliminary objections and dismissed the complaint
with prejudice.5
Order reversed. Case remanded. Jurisdiction relinquished.
President Judge Lazarus, Judges Kunselman, Murray, Sullivan, and Beck
join.
Judge Stabile files a Dissenting Opinion in which President Judge
Emeritus Panella and Judge King join.
Date: 12/11/2025
5 We emphasize that this Opinion does not address the merits of whether Appellees provided competent legal services. Rather, our disposition only finds that the trial court erred in sustaining Appellees’ preliminary objections.
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