The Beginning of the End? Pennsylvania Supreme Court Agrees to Address Whether the Gist of the Action Doctrine Remains Valid Law

According to a July 14, 2026 article by Riley Brennan in The Legal Intelligencer entitled "Pa. High Court to Revisit 'Gist of the Action' Doctrine for Legal Malpractice Cases, the Pennsylvania Supreme Court has agreed to address the ongoing validity of the doctrine in the case of Poteat v. Asteak.

Pennsylvania Supreme Court

As Tort Talkers may recall, my son, Daniel, Jr. (now about to enter his third year at Virginia Law where he is an Articles Editor on the Virginia Law Review) and I recently published a timely article in the April, 2026 edition of the Pennsylvania Bar Association Quarterly entitled "The Rise and Fall of the Gist of the Action Doctrine," in which the history of the doctrine was analyzed and and predictions were made regarding possible further developments in the law with respect to the doctrine.

We again thank Professor Emeritus Robert E. Rains of the Dickinson School of Law and Editor of the Quarterly for selecting this article for publication and for his excellent editorial assistance.

Here is the prediction from the end of the article with regards to the future of the gist of the action doctrine:

Thus, Swatt and Poteat appear to herald the beginning of the end of the gist of the action doctrine as a defense in Pennsylvania civil litigation matters. If and when the Pennsylvania Supreme Court has another opportunity to consider the validity of the gist of the action doctrine, it can be reasonably anticipated that the Supreme Court will finally swat the remaining mist of this doctrine into oblivion as contrary to the Pennsylvania Rules of Civil Procedure. Moreover, most of the current Justices on the Pennsylvania Supreme Court will also likely see the purpose of the gist of the action doctrine in maintaining the conceptual differences between tort and contract actions as less important than allowing injured parties to explore all potential theories of recovery available under the law.

With the anticipated downfall of the gist of the action doctrine, negligence and breach of contract will no longer be viewed as causes of action encompassing different types of wrongs that have to be kept apart. Rather, these types of claims will be viewed as parts of a menu of numerous options from which plaintiffs may select when deciding how to proceed with a lawsuit, including the option of proceeding with both types of claims in a single lawsuit. The anticipated total eradication of the defense of the gist of the action doctrine will therefore serve to expand the avenues of recovery for injured parties in Pennsylvania. However, until such time that the Pennsylvania Supreme Court again addresses the viability of the gist of the action doctrine and provides clarity and guidance, the courts and members of the bar will be left to grapple with implications of the Superior Court’s recent decisions on the doctrine.

To view the entire article, please click this LINK to the Tort Talk post on the article and then click the Link within that post to view the article.

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Superior Court Addresses the Parameters of the 'Common Interest Privilege' Under the Related Attorney-Client Privilege

In the case of Solid Waste Services, Inc. v. Ember Partners, LP, No. 1674 EDA 2025 (Pa. Super. June 9, 2026 Lazarus, P.J., Panella, P.J.E., and Stevens, P.J.E.) (Op. by Panella, P.J.E.), the Superior Court addressed discovery issues in a civil litigation dispute.

A primary issue addressed was whether a trial court Order granting a Motion to Compel production of documents withheld by a Defendant should be affirmed.

On appeal, the Defendant that was subject to the Motion to Compel was relying upon the somewhat novel “common interest” privilege to contend that they were legally entitled to withhold certain requested documents under a related attorney-client privilege argument

On appeal, the Superior Court noted that it agreed with the trial court’s findings that, while there may have been a common interest between the applicable parties earlier in the negotiations and dealings between the parties, the record revealed that there was no evidence of a common interest at the times relevant to the subject lawsuit. 

The Superior Court also found that the Defendant that was subject to the Motion to Compel Order did not meet their burden of proving the existence of an agreement to share the common interests privilege at any time. 

Accordingly, the Superior Court affirmed the trial court finding that the common interest doctrine did not protect attorney-client communications shared with a third-party because the Defendant at issue failed to prove an agreement to pursue a shared legal strategy and also failed to show any continuing common legal interest at the relevant times in the lawsuit.

Anyone wishing to review a copy of this decision may click this LINK.


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (June 30, 2026).

Source of image:  Photo by Sasun Bughdaryan on www.unsplash.com.

Superior Court Rules That Plaintiff's Effort To Revive a Previously Discontinued Med Mal Case Was Time Barred

The following decision is a cautionary tale for those cases where a Plaintiff discontinues a personal injury case, for one reason or another, before the matter is fully litigated and a recovery is secured.

In the case of Dixon v. Heritage Valley Sewickley, No. 307 WDA 2025 (Pa. Super. May 28, 2026 Olson, J., Stabile, J., and King, J.) (Op. by Stabile, J.), the Pennsylvania Superior Court vacated a trial court Order and held that a Plaintiff could not revive a voluntarily discontinued medical malpractice action by way of a Praecipe to Reinstate after the statute of limitations expired. 

 The appellate court ruled that attorney mistake and/or equitable considerations alone did not serve to toll the limitations period. 

According to the Opinion, the Plaintiff filed a medical malpractice action alleging negligent treatment of arm wounds after the Plaintiff suffered an injury. The Plaintiff alleged that he did not learn that the Defendant medical provider had failed to remove a piece of glass from his arm until that piece of glass was later removed during a subsequent emergency medical procedure.

After the Defendant had filed a Notice of Intention to Enter a Judgment of Non Pros, the Plaintiff voluntarily filed a Praecipe to Discontinue the action without prejudice.

Then, more than two (2) years after the Plaintiff alleged that he had discovered that the glass was still in his arm, the Plaintiff filed a Praecipe to Reinstate the Complaint.

The Defendant medical provider pled the statute of limitations defense in an Answer and New Matter. 

The Defendant later moved for judgment on the pleadings which was denied. The trial court reasoned that the Defendant had waived the statute of limitations defense by untimely raising it and, in the alternative, that equitable considerations allowed the claim to proceed because the Plaintiff’s attorney’s discontinuance of the case was inadvertent and was not shown to have been filed for a procedural advantage.

On appeal, the Superior Court noted that it had the ability to address the issues on appeal despite a challenge to the appealability of the same.

On the merits, the Superior Court held that the trial court had erred in treating the statute of limitations defense as waived. 

The appellate court noted that, under the coordinate jurisdiction rule, one judge at the trial court level had accepted the Defendant’s Answer and New Matter as timely and, therefore, the later judge was barred from disregarding that previous Order. The Superior Court also noted that the trial court had relied upon case law that was no longer good law due to recent Supreme Court precedent.

The court otherwise noted that the attempt by the Plaintiff to use a reinstatement praecipe to revive a previously discontinued action was improper under the circumstances of this case.  The Court noted that a reinstatement praecipe could not substitute for filing a Complaint within the statute of limitations period.

The Superior Court noted that, once a Discontinuance had been filed, this action could only proceed again by way of the filing of a new Complaint within the two year statute of limitations period.  Because that did not occur, the appellate court found that the Plaintiff's claims were time barred.

Anyone wishing to review a copy of this decision may click this LINK.  The Dissenting Opinion by Judge Olson, noting that Judge's opinion that the appeal should have been quashed, can be viewed HERE


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (June 16, 2026).

Case Removed to Federal Court Sent Back to State Court

In the case of Mason v. Sams Club, No. 2:25-CV-05038-JHS (E.D. Pa. April 27, 2026 Slomsky, J.), the federal court remanded a slip and fall case back to state court after finding that the Defendant had prematurely removed the case to federal court.

The court noted that, under federal law, a Defendant may only remove a case when the Defendant receives a document that puts the Defendant on notice that the case is removal because the $75,000.00 jurisdiction threshold is met. Moreover, under the Rules, once the Defendant receives a document that puts the Defendant on notice that the case is removable, a case must be removed within thirty (30) days of receiving that document.

Here, the Defendant removed the case after receiving emails from the Plaintiff’s counsel that the Plaintiff was going to undergo wrist surgery as a result of the injuries.

The Plaintiff argued that the case should be remanded back to state court, claiming that the Notice of Removal was filed prematurely because the Defendant did not have notice that the amount in controversy exceeded $75,000.00.

The court agreed, finding that the Defendant did not provide sufficiently specific information to confirm to the court that the amount in controversy exceeded $75,000.00. Here, there was a lack of any information regarding costs, total damages, or a settlement demand, any of which could have put the Defendant on notice that the jurisdictional threshold have been met.

The court noted that, with the Defendants bearing the burden of proving that the removal was proper, the Defendant’s failure to explain how a wrist surgery alone would necessarily surpass the jurisdictional threshold left to much ambiguity.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE


Source: Article – “Sams Club Slip-In-Fall Slides Back To State Court Due To Premature Removal Notice,” By Riley Brennnan of The Legal Intelligencer (May 4, 2026).

Source of image:  Photo by Jim Wilson on www.unsplash.com.

Federal Court Rejects Plaintiff's Request to Remand UIM Breach of Contract/Bad Faith Claim Back to State Court

In the case of Victoria-Melo v. Travelers Prop. Cas. Co. Of America, No. 5:25-CV-07282-JMG (E.D. Pa. May 14, 2026 Gallagher, J.), the court denied a Plaintiff’s Motion to Remand a UIM/Bad Faith suit back to state court.

The insurance company had removed the case to federal court on the basis of diversity jurisdiction and alleging that the amount in controversy exceeded $75,000.00.

The Plaintiff responded by asserting that the Defendants had failed to establish the amount in controversy. The Plaintiffs also argued that the action presented unsettled issues of Pennsylvania insurance law that would be better resolved by the state courts.

After reviewing the matter before it, the court concluded that diversity jurisdiction existed and that abstention was not warranted.

In so ruling on the issue of whether the exercise jurisdiction under the Declaratory Judgment Act, the federal court considered the factors set forth by the Third Circuit Court of Appeals in the Reifer case. 

As part of this analysis, the court found that this case did not present the type of unsettled or novel issues of state law that would weigh in favor of abstention. 

One issue in this regard in this case is that the Plaintiff contended that the applicability of Pennsylvania’s Motor Vehicle Financial Responsibility Law to an insurance policy issued outside of Pennsylvania presented as an unresolved legal question. 

The court disagreed and pointed to Pennsylvania cases that had addressed the issue previously. As such, this case was found to involve the routine application of established statutory language and insurance principles to the case at hand.

As such, the Plaintiff’s Motion to Remand was denied.

Anyone wishing to review a copy of this decision may click this LINK.  The Court's companion Order can be viewed HERE.


I send thanks to Attorney Candace M. Edgar of the Camp Hill, PA office of Marshall Dennehey for bringing this case to my attention.

Post-Trial Rulings By Trial Court in MVA Case Affirmed on Appeal

In their non-precedential decision in the case of Major v. Five Star Equipment, Inc., No. 735 MDA 2025 (Pa. Super. June 30, 2026 Panella, P.J.E., King, J., and Lane, J.) (Mem. Op. by King, J.), the Pennsylvania Superior Court affirmed the post-trial rulings issued by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas related to a motor vehicle versus pedestrian accident case.

According to the Opinion, at a bifurcated trial, the jury attributed 75% of the responsibility for the happening of the accident to the Plaintiff and 25% to the Defendant.

On appeal, the Plaintiff challenged portions of the verdict slip and related jury instructions. The Plaintiff also asserted that the trial court had erred prior to trial in granting partial summary judgment on behalf of the Defendant and dismissing the Plaintiff’s claim for recklessness and in excluding post-accident evidence regarding the Defendant driver’s competence. The Plaintiff also argued that the trial court abused its discretion in bifurcating the trial.

Here, the court had bifurcated the trial based upon the fact that, after the parties were given a trial date with a certain number of trial days based on what the parties had advised the Court as to how much trial time was needed, the parties listed additional witnesses which led the court to conclude that it was highly unlikely that the parties would finish the trial within the allocated time period requested. As such, the court bifurcated the trial to avoid unnecessary cost and to facilitate the interests of judicial economy. The trial was bifurcated into liability and damages phases.

The appellate court rejected the Plaintiff’s argument that they were entitled to a new trial on the basis that the trial court had incorrectly bifurcated the case. The appellate court emphasized that the decision whether or not to bifurcate a case is entrusted to the broad discretion of the trial court, which is considered to be in the best position to evaluate the necessity for bifurcation.

Here, after consultation with the parties, the trial court had scheduled five (5) days for trial based upon the parties estimation as to the amount of time they believed the trial would take. Later, at a pre-trial conference, the parties then indicated that they intended to call eleven (11) lay witnesses and nine (9) expert witnesses to testify. The parties further estimated that one of the four days scheduled for trial would be taken up by the jury selection process, the court’s introductory instructions, and counsel’s opening statements.

The trial court had determined that it was highly unlikely that the remaining four (4) days of trial would be sufficient time for all of their testimony, closing arguments, jury instructions and deliberations. The trial court had expressed a concern that it would be forced to declare a mistrial if the trial is not completed within the allotted time. The appellate court agreed with the trial court’s conclusion that the interest of judicial economy and conveniens supported the bifurcation of the case. The appellate court was not swayed by the Plaintiff’s argument that the trial actually ended up only taking three (3) days to complete.

On appeal, the appellate court otherwise agreed with the trial court that the Plaintiff had waived her claim of error with regards to the Verdict slip.  The appellate court otherwise agreed with the trial court that separate questions as to each theory of negligence asserted against the Defendant company were unnecessary given that the trial court’s jury instructions specified and explained all of the theories of negligence involved in the case. The appellate court found that the trial court had repeatedly instructed the jury that, if they found negligence on any of the grounds described during the jury instructions, the jury must find that the Defendant company was negligent.

With regards to the trial court having issued a partial summary judgment against the Plaintiff’s claims of recklessness, the appellate court reviewed the law of punitive damages and, after a review of the trial record, found that the Plaintiff failed to produce any evidence to support the claims of recklessness. As such, the appellate court stated that the trial court did not err in dismissing the Plaintiff’s punitive damages claims whether in terms of the direct actions of the Defendant company or on the basis of vicarious liability.

Based upon the above reasons, the appellate court affirmed all of the trial court’s post-trial rulings.

Anyone wishing to review a copy of this decision may click this LINK.

To view the Tort Talk post on Judge Nealon's trial court Opinion and for access to a Link to that Opinion, please click HERE.