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Understanding The Evolution Of Pennsylvania’s “Gist For The Action” Doctrine

Pennsylvania was a pioneer of sorts in recognizing and upholding the “gist for the action doctrine”. The commonwealth is regarded as the chief source of the doctrine which has influenced courts over 150 times at the state-level and over 500 times at the federal level. This principle applies to parties who have mutually entered into a contractual relationship. It prevents a party from bringing a claim of negligence against the other when it involves their legal (contractual) agreement. 

The doctrine traditionally guided the court to consider the “essence” of a claim, rather than to interpret the specific provisions or language within the contract. Courts were to consider claims “as a whole”, not to evaluate whether the tort is barred based on individual details. Pennsylvania case law did not refer to the doctrine as “gist of action” (by name) until 1999. Critics long argued that the doctrine was inapplicable in modern times; however, it withstood many challenges until being redefined in Bruno v. Erie Insurance Co. (“Bruno”) in 2014. The doctrine name still exists, although how it is interpreted has changed.

This doctrine barred tort claims as follows:

  • When the tort claim was solely the result of an existing agreement (contract) the parties had entered
  • The alleged breach was based on the contract
  • The alleged liability is based on the contract
  • When the tort claim “essentially duplicates a breach of contract claim”, or if the terms of the contract would be necessary in order for the plaintiff to prevail

The statement that defines the current doctrine did not exist until Bruno. A family determined their home contained mold. Their insurance provider assessed the situation and deemed it as nothing to be concerned with. Later, the family was forced to leave their home amid significant mold-related illnesses and the family filed a negligence suit against the insurer. 

The insurer used the “gist for the action” doctrine citing their contract-based relationship and the court agreed and dismissed the claim. On appeal, the higher court did not rely on the “essences” to determine their findings. They viewed it according to whether the claim is based on a duty created specifically in the contract provisions. If this is the case, then it is based on a breach of the contract. Yet, if the claim is based on a violation of a socially accepted duty, one considered as a basic duty owed to all individuals–then the claim is a tort.

The general intent of the doctrine was to make parties adhere to contracts they enter. One party should not be able to violate the agreement terms by bringing a claim; however, the doctrine was extremely general and did not consider specific facts. The reason a claim may be barred should be specified in the language of the agreement. Prior to Bruno, contract language was ignored, which the court determined did not lead to fair outcomes. Bruno was clear that if the duty breached was one specified within the contract—the claim is based on contract.

About the Author

Charles GilmanCharles Gilman
Charles Gilman

As managing partner and co-founder of Gilman & Bedigian, it is my mission to help our clients recover and get their lives back on track. I strongly believe that every person who is injured by a wrongful act deserves compensation, and I will do my utmost to bring recompense to those who need and deserve it.


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