Litigation arising out of a construction dispute typically involves claims that sound both in contract and tort. The “gist of the action” doctrine and the absence of a certificate of merit (in a professional negligence claim) are two barriers often raised by defendants in attempting to dismiss or limit a plaintiff’s ability to pursue an action against them in tort. In December 2014, the Pennsylvania Supreme Court issued an opinion in Bruno v. Erie Insurance, 2014 Pa. LEXIS 3319 (Pa. Dec. 15, 2014), which has a significant impact on these doctrines.
Gist of the Action Doctrine
The gist of the action doctrine is a legal mechanism to dismiss tort claims which are properly brought as a breach of contract, but which a plaintiff has recast as a tort claim. A tort claim may have the potential to recover punitive and other special damages which could not be recovered under the parties’ contract.
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