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Poteat v. Asteak, 2024 Pa. Super. LEXIS 99 (March 21, 2024) (Dubow, J.).

Appellant, Antoine Poteat, appeals pro se from the February 7, 2023 order entered in the Lehigh County Court of Common Pleas that sustained the preliminary objections filed by Appellees, Gary Asteak, Esq., and Nino v. Tinari, Esq., and dismissed his complaint for breach of contract with prejudice. Appellant challenges the trial court’s application of the gist of the action doctrine. Upon review, we find that the trial court erred. Even though the duty that Appellees undertook in the contract with Appellant is similar to the duty that a plaintiff could assert in a malpractice claim, the gist of the action doctrine does not authorize the trial court to 1) recharacterize a contract claim as a tort claim and, thus, extinguish a plaintiff’s rights that the parties agreed to in a contract and then 2) dismiss the complaint on the grounds that the statute of limitation bars the tort claim. Accordingly, we reverse.

Appellees both filed preliminary objections in the nature of a demurrer, averring that Appellant’s breach of contract claim is legally insufficient based on the gist of the action doctrine. Appellees argued that Appellant’s claim sounds in tort, namely negligence, and fails to allege a breach of a specific executory promise in the parties’ Retainer Agreement. Appellees concluded that since Appellant’s claim was only one in negligence, the statute of limitations barred the claim. Appellant filed a response asserting that a breach of a specific contractual term is unnecessary and general assertions of a breach of duty are sufficient.

On February 7, 2023, the trial court sustained Appellees’ preliminary objections by recasting Appellant’s breach of contract as a tort claim and concluding that the statute of limitations barred the tort claim.

This Court adopted a similar holding in Gorski v. Smith, 2002 PA Super 334, 812 A.2d 683, 692 (Pa. Super. 2002), when we found that when an attorney and client enter into an agreement for the attorney to provide legal services, the agreement contains an implicit “contractual duty” on the attorney to render legal services in a manner that comports with the profession at large.

Thus, we found that the trial court erred in concluding that the legal services agreement between Appellant and Appellees did not impose a “specific duty” on Appellees.

Accordingly, it is clear that our case law imposes a duty, albeit an implicit one, on attorneys to perform legal services in a professional manner. The court here erred when it failed to acknowledge this implicit contractual duty and, as a result, incorrectly found that the Retainer Agreement did not impose a duty on Appellees to provide legal services in manner consistent with the profession at large.

Appellant alleged that Appellees breached the Retainer Agreement by providing ineffective counsel. Specifically, Appellant avers that (1) he signed a Retainer Agreement with Appellees, (2) Appellees failed to adequately perform with regards to the applicable standards of competence and diligence required in the field and profession of law, and (3) he was convicted of multiple counts of PWID and incarcerated from September 21, 2015, to July 9, 2019, due to Appellees’ failure to competently perform their legal duties. Appellant did not allege a tort claim but, rather, a valid breach of contract claim. Thus, the trial court erred in converting the breach of contract claim into a negligence claim and then dismissing the claim on the basis of the statute of limitations.

Accordingly, we conclude that the trial court erred when it sustained Appellees preliminary objections and dismissed the complaint with prejudice.