Grimm, M. v. Grappone, J.
Grimm, M. v. Grappone, J. No. 1384 WDA 2016
| Pa. Super. Ct. | Jul 6, 2017Background
- Michael and Ieva Grimm purchased residential property in Oct 2012; property abutted a wooded lot to the west.
- Before settlement, they asked attorney Joseph Grappone to represent them in the purchase; no written fee/retainer agreement was attached and the scope of representation was not specified in the complaint.
- Grappone had an ownership interest in the development company that owned the adjacent wooded lot; he allegedly told the Grimms there would be no significant development.
- After closing, the Grimms learned the adjacent lot was to be developed commercially, and they sued (July 2013) asserting misrepresentation, professional negligence (legal malpractice), breach of fiduciary duty/conflict of interest, and UTPCPL claims.
- Grappone filed preliminary objections arguing misrepresentation duplicated the malpractice claim and was barred by the gist of the action doctrine; he also argued UTPCPL does not apply to attorney misconduct.
- The trial court sustained preliminary objections and dismissed counts one (misrepresentation) and four (professional negligence) with prejudice; the Superior Court affirmed, holding the misrepresentation count failed for lack of a pleaded duty and noting the gist-of-action doctrine was inapplicable as both claims sounded in tort.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by dismissing Count I (negligent misrepresentation) as duplicative of professional negligence and barred by gist-of-action doctrine | Grimms: alleged all elements of negligent misrepresentation and that misrepresentation is a separate duty from attorney malpractice | Grappone: misrepresentation duplicative of malpractice; gist-of-action bars tort recast of contract-based duties | Court: Affirmed dismissal — complaint failed to plead any independent duty supporting negligent misrepresentation; thus Count I deficient. |
| Whether gist-of-action doctrine barred the claims | Grimms: claims sound in tort, not contract, so gist doctrine does not apply | Grappone: argued duplication and gist doctrine should bar misrepresentation claim | Court: Observed gist-of-action doctrine generally distinguishes contract vs tort, but here both claims sound in tort; court declined to adopt lower-court gist analysis and treated doctrine as inapplicable to bar these tort claims (but still affirmed dismissal on duty pleading ground). |
Key Cases Cited
- Rambo v. Greene, 906 A.2d 1232 (Pa. Super. 2006) (standard of review for sustaining preliminary objections)
- Bortz v. Noon, 729 A.2d 555 (Pa. 1999) (elements and duty requirement for negligent misrepresentation)
- eToll, Inc. v. Elias/Savion, 811 A.2d 10 (Pa. Super. 2002) (explaining gist-of-action doctrine distinguishing contract and tort claims)
- Wells Fargo Bank v. Feretti, 935 A.2d 565 (Pa. Super. 2007) (legal malpractice may be tort or contract; professional negligence is a tort)
- Lilliquist v. Copes–Vulcan, Inc., 21 A.3d 1233 (Pa. Super. 2011) (appellate court may affirm trial court on any correct ground)