Article: The Rise and Fall of The Gist of The Action Doctrine

Here is a LINK to the latest edition of the Pennsylvania Bar Association Quarterly which contains an article written by my son, Daniel E. Cummins, Jr. and myself entitled "The Rise and Fall of the Gist of the Action Doctrine." The article can be found on p. 118 of this edition.

My son, Daniel, is currently finishing up his second year at Virginia Law School where he is currently serving as one of the Articles Editors for the Virginia Law Review. He is set to work as a Summer Associate this summer with Cozen & O'Connor in their Philadelphia office. He is also looking forward to his clerkship with Federal Middle District Court Judge Joseph F. Saporito, Jr. after he graduates from law school next year.

As noted in the article, the gist of the action doctrine prevents plaintiffs from bringing both a breach of contract claim and a negligence claim based on an alleged breach of the same duty.

The article reviews the centuries of jurisprudence behind the gist of the action doctrine as compared to the recent Pennsylvania Superior Court decisions that call into question the continuing validity of the doctrine. The article also predicts further anticipated developments in the law going forward.

Daniel and I send thanks to Professor Emeritus Robert E. Rains of the Dickinson School of Law, who is the Editor of the Pennsylvania Bar Association Quarterly, for selecting this article for publication and for editing it into a better article.  We also thank Tina R. Schreiber for her editorial assistance on the article.



I also proudly note that I am referenced the first article listed in this edition. That article, written by Joel Fishman, Ph.D., M.L.S. and entitled "The Pennsylvania Bar Association Quarterly: A 10-Year History Volumes 87-96 (2016-2025)," references two past PBA Quarterly articles of mine on pages 80-81 as part of the history of this periodical. I thank Professor Rains for selecting those articles for publication as well.

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Court Rules Plaintiff Cannot Insert Into Written Settlement Agreement a Term That Was Not Contemplated in Previous Oral Settlement Agreement

In the case of Liberty Prop. Ltd. P’ship v. Kendall Heaton Assocs., Inc., No. 2947 EDA 2024 (Pa. Super. Feb. 27, 2026 Olson, J., Dubow, J. and Beck, J.) (Op. by Olson, J.), the Superior Court upheld and affirmed a trial court’s enforcement of a oral settlement agreement reached by the parties in a civil litigation matter.  

In this case, the Plaintiff sought to insert an additional term in an effort to restrict the scope of the written release after the oral settlement contemplated releasing all known and unknown claims.

According to the Opinion, this matter arose out of construction litigation.

The Plaintiff was a developer that had contracted with several parties, including the Defendant, for construction services.  During construction, the Plaintiff discovered design defects that lead to additional costs. After attempts to resolve these issues through a Mediation failed, the Plaintiff filed a lawsuit for breach of contract and professional negligence.

During the course of the litigation, the parties reached a settlement during negotiations participated in by the Plaintiff’s in-house representatives, including an attorney, as well as outside counsel for the Plaintiff. Once that oral agreement to settlement was reached, the Defendant’s attorney confirmed the terms of that settlement via an email.  Plaintiff’s counsel acknowledged the email as representing the Plaintiff's understanding of the agreement as well.

However, the Plaintiff later sought to exclude latent defects from the final written settlement agreement, which was a term that was not part of the original oral settlement agreement.

Thereafter, when the parties could not resolve their dispute over the terms of the settlement agreement, the Defendant filed a Motion to Enforce the original settlement agreement. The Plaintiff filed a cross-Motion requesting the court’s enforcement of the different version of the settlement that the Plaintiff desired. 

The trial court granted the Defendant’s Motion relative to the original oral settlement agreement and denied the Plaintiff’s Motion to seeking to change that agreement under a written settlement agreement.

The Superior Court found that the trial court had properly ruled that the parties had reached an enforceable oral settlement agreement, which was not contingent upon the confirmation of the terms in a written document. The court additionally found that the agreement included a mutual release of all known and unknown claims related to the construction project in exchange for the monetary settlement payment.

The appellate court otherwise determined that the Plaintiff’s attempt to alter the agreement in the written settlement agreement to exclude latent defects was an additional term that was not part of the original settlement agreement.

Anyone wishing to review a copy of the Majority decision may click this LINK.  The dissenting Opinion by Judge Dubow can be viewed HERE.


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (March 17, 2026).

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Appellate Court Addresses Jerk and Jolt Doctrine With Respect to Bus Passengers

In the case of Musser v. SEPTA, No. 60 C.D. 2025 (Pa. Cmwlth. Feb. 27, 2026 Cohn Jubelirer, P.J., Fizzano Cannon, J., and Tsai, J.) (Op. by Fizzano Cannon, J.), the Pennsylvania Commonwealth Court affirmed a trial court’s denial of a Plaintiff’s post-trial motions in a matter involving a Plaintiff who was injured when a SEPTA bus began to move before the Plaintiff had sat down, as a result of which, the Plaintiff allegedly fell and was injured.

The appellate court affirmed the trial court’s provision of instructions to the jury that, under Pennsylvania law, a bus operator has no obligation to wait until boarding passengers are seated before proceeding from a stop.

According to the Opinion, the Plaintiff alleged that, as she was seating herself, the bus restarted with an “aggressive” motion, causing her to fall. SEPTA presented contrary evidence, including a video of the incident. A defense verdict was entered by the jury and the Plaintiff appealed.

The court noted that the Plaintiff’s claims were based upon the jerk and jolt doctrine, which holds that a common carrier may be liable if a Plaintiff is injured due to a sudden, unusual or extraordinary jerk or jolt of the vehicle. However, the court noted that, under the doctrine, merely restarting a bus before a passenger is seated is not considered negligence unless the passenger requests the driver to wait. Here, there was no such request noted in the evidence. Rather, the Plaintiff only asserted that the restart was a sudden jolt.

On appeal, the appellate court found no abuse of discretion by the trial court in its evidentiary rulings. The appellate court also found that the trial court was appropriate in clarifying to the jury that merely restarting the bus before a passenger is seated did not, in and of itself, constitute negligence under the jerk and jolt doctrine.

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


Source: The Legal Intelligencer State Appellate Case Alert, www.Law.com (March 17, 2026).

Court Applies Program of Protection Standard Relative to Negligence By Security Services at Casino

In its non-precedential decision in the case of Jackson v. Live! Casino and Hotel, No. 2792 EDA 2024 (Pa. Super. Feb. 24, 2026 Bowes, J., King, J., and Ford Elliott, P.J.E.) (Mem. Op. by Bowes, J.), the Pennsylvania Superior Court addressed the “program of protection” standard in Pennsylvania in a premises liability case.

According to the Opinion, this case arose out of the Plaintiff being attacked by other patrons while at the casino. It was noted that the assailant was allegedly intoxicated.

With regards to the “program of protection" issue, the Superior Court noted that the Pennsylvania Supreme Court has recognized that the voluntary gratuitous adoption of a program of protection, such as by employing security personnel, gives rise to the expectation that the security personnel will perform their duties with reasonable care. As such, where the security provided is not executed reasonably, and that negligence is the proximate cause of the harm, liability can attach.

The Superior Court found that the evidence presented in this case was sufficient to support the Plaintiff’s claims of negligence asserted against the casino. 

More specifically, the court found that the evidence presented at trial established that the Plaintiff was injured as a result of the Defendant’s failure to reasonably execute its security program. 

Accordingly, the Superior Court held that the trial court properly concluded that the Defendant was not entitled to a judgment notwithstanding the verdict in this case in which the jury entered a multi-million dollar verdict in favor of the Plaintiff.

The court otherwise rejected the Defendant’s claims that it was entitled to a new trial.

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


I send thanks to Attorney Anthony J. Gabriel of the Hummelstown, PA office of the McQuaide Balsko law firm for bringing this case to my attention.

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Appellate Court Upholds Ruling That Contracts Regarding Gambling Debts Are Void

In its non-precedential decision in the case of Dhaduk v. Patel, No. 576 MDA 2025 (Pa. Super. March 16, 2026 Kunselman, J., McLaughlin, J., and Lane, J.) (Mem. Op. by McLaughlin, J.), the Pennsylvania Superior Court sustained a trial court decision by Judge Terrence R. Nealon of the Lackawanna County Court of Common Pleas granting demurrers against a Plaintiff’s claims in a case arising out of a neurologist and his wife who sued an internist seeking to recover $700,000.00 for gambling losses that allegedly occurred at a Florida casino. 

The Plaintiffs alleged that the neurologist agreed to play blackjack on behalf of the internist with the express understanding that the internist would be responsible for any resultant gambling losses suffered by the neurologist in the process.

The Plaintiffs claim that the internist had not reimbursed the neurologist for $200,000.00 for chips that the neurologist purchased and lost and for an additional $500,000.00 that the neurologist obtained from his casino line of credit and ultimately lost playing black jack.

The Defendant internist filed demurrers against the Plaintiff’s claim of breach of contract, promissory estoppel, fraud, and unjust enrichment.

The Superior Court agreed with the trial court’s decision that a Pennsylvania statute held that gambling debts between private individuals were uncollectable and that any related contracts regarding gambling are void. The Superior Court upheld Judge Nealon’s ruling and agreed that Pennsylvania law precluded the recovery of the debt.

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


Source: Article – “Court: Pair Can’t Recoup $700K Loan Friend Used For Gambling,” By Jim Lockwood of The Scranton Times (March 20, 2026).

Source of image:  Photo by Dusan Kipic on www.unsplash.com.  

Pennsylvania District Court Finds Jurisdiction Over Out-of-State Manufacturer Under Consent-by-Registration Statute

 In the case of Blade v. Sig Sauer, Inc., No. 2:25-CV-06645-MAK (E.D. Pa. March 5, 2026 Kearney, J.), the Eastern District Federal Court ruled that a lawsuit against Sig Sauer, a gun manufacturer, would remain in Pennsylvania in light of the U.S. Supreme Court's 2023 decision in the case of Mallory v. Norfolk Southern Railway which provided the court with jurisdiction over this out-of-state company.

According to the Opinion, the gun manufacturer had moved to dismiss the case based on an argument that the court lacked personal jurisdiction because Pennsylvania’s “consent-by-registration” statute allegedly violated the dormant commerce clause and was unconstitutional under the due process clause.

The Eastern District federal court rejected these arguments and ruled that, in light of the Mallory decision, the court had general personal jurisdiction over the lawsuit because the gun manufacturer had consented to such jurisdiction by registering to do business in Pennsylvania.

The court additionally ruled that Pennsylvania’s registration clause did not violate the due process or the dormant commerce clauses as applied to the Defendant.

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


Source: Article – “Gun Malfunction Litigation Will Remain in Pa., Thanks to Controversial US Supreme Court Jurisdiction Decision” By Riley Brennan of The Legal Intelligencer (March 11, 2026).

Source of image:  Photo by Addy Mae on www.pexels.com.