Professional Liability

After much anticipation, the Pennsylvania Superior Court issued its en banc decision in Poteat v. Asteak on December 11, 2025.  In Poteat, the Superior Court sitting en banc confirmed an earlier opinion addressing the question of whether the “gist of the action” doctrine applies to legal malpractice claims. In a disappointing ruling for the defense bar, the court ruled that it does not.  In doing so, it has created uncertainty moving forward as to the defense of legal malpractice actions sounding in breach of contract.

Poteat arose from a legal malpractice lawsuit following appellee-attorneys’ provision of legal services to an appellant in a criminal matter. In the legal malpractice action, the trial court granted the appellees’ preliminary objections seeking dismissal of the action via application of the gist of the action doctrine. The appellant set forth a breach of contract claim, arguing that since the breach of contract claim sounded in tort, namely negligence, it should be treated as such by application of the gist of the action doctrine. Accordingly, the two-year statute of limitations applicable to negligence barred the claim. Appellees further argued that the complaint was legally insufficient because it failed to allege a breach of a specific executory promise in the retainer agreement. The plaintiff appealed.

The Superior Court’s en banc decision held that hiring an attorney automatically creates an implied contract term that the attorney will provide competent legal services, regardless of whether the contract includes any explicit contractual term promising such. In doing so, the Superior Court has provided authority for plaintiffs in legal malpractice claims to assert the existence and breach of an implied duty that arises from a specific legal contract, without regard to the expressed language of that agreement. In essence, the court eviscerated any gist of the action application to legal malpractice claims and ignored prior precedent which also held that breach of contract claims must be based upon the contract itself, rather than implied terms.

Even more problematic for the defense of legal malpractice lawsuits is the fact that this ruling effectively means that all Pennsylvania lawyers’ professional liability claims will be subject to a four-year contract statute of limitations. A negligence claim that an attorney deviated from a professional standard of care that may have been dismissed for falling outside the two-year statute of limitations time period may now be pursued under an alternate breach of contract theory which is subject to a four-year statute.

There was a vigorous dissent which was joined by three Superior Court judges. This decision has been appealed to the Pennsylvania Supreme Court given the severity of its potential implications.