Lutheran v. Wagman Constr., Inc., 2024 Pa. Super. LEXIS 152 (April 23, 2024) (Stabile, J.).
In this construction defect case, SpiriTrust Lutheran (SpiriTrust) alleged that in 2007, Wagman Construction, Inc (Wagman), negligently, and in breach of contractual duties, built defective retaining walls and other structures on its property. Wagman responded that SpiriTrust’s claims were barred by the statute of limitations, the gist of the action doctrine, and the economic loss doctrine. Finding merit in those defenses, the Court of Common Pleas of York County (trial court) sustained Wagman’s preliminary objections and granted judgment on the pleadings in its favor. SpiriTrust now appeals the trial court’s rulings, and on review, we affirm in part, reverse in part, and remand the case for further proceedings.
In sum, then, the gist of the alleged duty in the breach of contract counts is that Wagman had to design and construct the retaining walls “in a reasonable workmanlike manner and in accordance with industry standards.” The gist of the alleged duty in the negligence count is that Wagman had to design and construct the retaining walls in accordance with “accepted engineering standards and industry practice.”
There appears to be no material difference between “industry standards” and “industry practice,” the terms used by SpiriTrust in its amended complaint to describe the respective duties in the breach of contract and negligence counts. The record instead establishes that the duty described in the negligence count arises from Wagman’s contractual obligation to provide engineering services and to apply the requisite expertise when carrying that duty out.
Thus, the trial court did not err in sustaining Wagman’s preliminary objection as to Count III because the duty described in the negligence count was duplicative of, and not in addition to, the duties already imposed by the parties’ contracts.
SpiriTrust’s final claim pertains again to the portion of the trial court’s order sustaining a preliminary objection as to Count III (Negligence), this time disputing the application of the economic loss doctrine. Having found that the trial court did not err in applying the gist of the action doctrine as to this same count, it is unnecessary for us to separately address whether the economic loss doctrine is also applicable.
Order reversed as to Counts I and II of the amended complaint; order affirmed as to Count III of the amended complaint. Case remanded for further proceedings consistent with this opinion. Jurisdiction relinquished.
Judge McCaffery did not participate in the consideration or decision of this case.
Judgment Entered.
While closely related, the gist of the action doctrine and the economic loss doctrine are distinct. The gist of the action doctrine prevents a party from recasting a breach of contract claim as a separate claim of negligence, whereas the economic loss doctrine permits a party to bring a tort action for purely economic damages as long as the asserted duty is independent from a contractual obligation. See generally Dittman v. UPMC, 649 Pa. 496, 196 A.3d 1036, 1052 (Pa. 2018).
