Recent Pennsylvania jurisprudence has reflected a shift toward more careful consideration of the nature of allegations against defendants in order to more judiciously apply the correct statute of limitations. Raising the gist of the action doctrine as a defense may help professional liability defendants, and in particular attorney defendants, to bar stale claims of malpractice.
Legal malpractice claims may be brought in two forms: negligence and breach of contract. To state a claim for negligence, a plaintiff must allege: employment of the attorney or other basis for a duty; failure of the attorney to exercise ordinary skill and knowledge; and, that such failure was the proximate cause of the harm to the plaintiff. See, Wachovia Bank v. Ferretti, 935 A.2d 565, 570-571 (Pa. Super. Ct. 2007) (internal citations omitted). To state a claim for breach of contract, a plaintiff must allege: the existence of a contract, a breach of a duty imposed by the contract, and damages. See, Kirschner v. K&L Gates, 436 A.2d 737, 755 (Pa. Super. 2012). Traditionally, a legal malpractice plaintiff could allege the same conduct in support of both claims. This meant that, although a negligence claim must be brought within two years of the alleged breach of duty, nearly all legal malpractice claims could be considered timely breach of contract claims, if filed within four years from the attorney’s failure to provide competent representation.