A recent ruling by the Pennsylvania Superior Court has sparked a sharp disagreement among the judges over how legal malpractice claims should be categorized—as a breach of contract or as a tort (negligence). In a dissenting opinion, Judge Stabile argued forcefully that the majority decision incorrectly allowed a client to recast a professional negligence claim as a breach of contract action, a move that could undermine nearly two centuries of established Pennsylvania law.
The core dispute involves Antoine Poteat, who sued his former attorneys, Gary Asteak and Nino V. Tinari, after paying each $7,500 for representation in a criminal case. Poteat claimed his lawyers breached their contract by failing to secure credit for time served or by not arguing for dismissal on speedy trial grounds. Crucially, Poteat’s complaint did not cite any *specific* promise in the retainer agreements that the attorneys violated. Instead, he alleged they breached an *implied* professional obligation to provide competent legal services.
The trial court agreed with the attorneys, dismissing Poteat’s case because the allegations sounded in tort (professional negligence) rather than contract. The trial court relied heavily on the Supreme Court’s ruling in *Bruno v. Erie Ins. Co.*, which established that a contract action only lies for breaching an *express* contractual obligation, whereas negligence arises from violating a broader social duty imposed by law.
The Majority’s Rationale Sparks Dissent
The Superior Court majority, however, sided with Poteat, finding that the trial court erred by applying the “gist of the action” doctrine to dismiss the contract claim. The majority relied on earlier cases, *Bailey v. Tucker* and *Gorski v. Smith*, suggesting that an attorney’s implied duty to provide competent services is enough to sustain a breach of contract action, even without pointing to an express term.
Judge Stabile, in his dissent, called this approach a departure from controlling precedent. He argues that the majority is reviving an outdated legal framework by ignoring the fundamental distinction between contract and tort duties, a distinction reaffirmed by the state Supreme Court in *Bruno*.
The Importance of Express Promises
Judge Stabile meticulously traced the history of the “gist of the action” doctrine, citing seminal cases dating back to the 1800s, such as *Zell v. Arnold* and *McCahan v. Hirst*. These cases established a clear rule: if the complaint alleges a defendant failed entirely to perform a required task (nonfeasance), it sounds in contract. If the complaint alleges the defendant performed the task negligently or unskillfully (misfeasance), it sounds in tort.
According to the dissent, the *Bruno* decision clearly stated that a contract claim requires the breach of a “specific promise to do something that a party would not ordinarily have been obliged to do but for the existence of the contract.” Professional competence, Judge Stabile contends, is a “broader social duty” imposed by law—the very definition of a tort duty—not a specific, self-imposed contractual term.
Poteat’s claim that his lawyers failed to apply his time served credit or argue for speedy trial grounds relates directly to their professional judgment and skill, which are hallmarks of negligence, not a breach of a specific written promise.
Re-Examining Precedent: *Bailey* and *Gorski*
The dissent dedicates significant space to dismantling the foundation of the majority’s argument: the interpretation of *Bailey v. Tucker*. In *Bailey*, the Supreme Court addressed malpractice claims against criminal defense attorneys and noted that an attorney “is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.”
Judge Stabile argues that the *Bailey* court’s reference to this implied duty was *dictum*—an observation unnecessary to the case’s holding, which ultimately dismissed the claims based on the statute of limitations. He asserts that *Bailey* never intended to overrule established law requiring an *express* contractual breach for a contract claim.
Furthermore, the dissent dismisses the *Gorski* case, noting that a three-judge panel ruling like *Gorski* is not binding on the full en banc court and, more importantly, conflicts directly with the Supreme Court’s later *Bruno* ruling.
Statute of Limitations Implications
A key motivation behind Poteat’s attempt to frame the case as a contract dispute is the statute of limitations. Negligence claims in Pennsylvania generally have a two-year window, while breach of contract claims have a four-year window. By characterizing the claim as contract, Poteat sought the longer filing period. However, since the trial court found the claim sounded in tort, and the alleged misconduct occurred years prior, the tort claim was time-barred.
Judge Stabile concludes that allowing an implied duty of professionalism to support a contract claim effectively merges negligence and contract law, which the *Bruno* decision explicitly sought to prevent. He notes that Poteat’s request for consequential and punitive damages further supports the tort nature of the complaint, as punitive damages are generally unavailable for simple breach of contract.
Ultimately, the dissenting opinion maintains that the trial court was correct: Poteat failed to plead a legally sufficient claim for breach of contract because he did not allege the breach of any specific, express term in the retainer agreements.