The gist of the action doctrine does not bar a viable tort claim between two parties related by a contract. Earlier last year, the U.S. Court of Appeals for the Third Circuit in SodexoMAGIC v. Drexel University made this law—that the gist of the action doctrine does not bar a viable tort claim between two parties just because the parties papered the social duty giving rise to a tort claim into a contract—abundantly clear. Yet, many courts in Pennsylvania continue to misapply the doctrine.
Pennsylvania courts have long used the gist of the action doctrine to dismiss tort claims where the disputing parties are contractually related. The goal of the doctrine is to maintain the integrity of contract and tort claims by keeping them separate. While the goal is laudable, the application of the doctrine sometimes had unintended consequences of dismissing meritorious tort claims and depriving aggrieved parties of their day in court. The doctrine bars tort claims where the “gist of the action” lies in an alleged breach of contract, rather than a breach of a broader social duty. Disagreements may arise during the parties’ contractual relationship that should be resolved within such capacity; however, this is no excuse to dismiss viable tort claims between the parties who are affiliated based on a contractual relationship.
