Lead Opinion
In this interlocutory appeal, we consider two questions: (1) whether a negligence claim brought against an insurer by its insureds — for alleged statements made by the insurer’s adjuster, and an engineer the insurer had retained, that mold which the insureds discovered while performing home renovations was harmless and that they should continue their renovations — was barred by the “gist of the action” doctrine on the grounds that the true gist or gravamen of the action was an alleged breach of the insurance contract, their homeowners’ policy; and (2) whether the provisions of Pa.R.C.P. 1042.1 and 1042.3 required the insureds to obtain a certificate of merit in order for them to proceed with their negligence suit against the professional engineer employed by the insurer to evaluate the mold. After careful review, we hold that the insureds’ negligence claim was not barred by the gist of the action doctrine, as the claim was based on an alleged breach of a social duty imposed
I. Factual and Procedural Background.
In September 2007, Appellants David and Angela Bruno (“Brunos”), purchased a home in Bradford, McKean County from Appellees Theresa and Marc Pitcher, and obtained a policy of homeowner’s insurance for it issued by Appellee, Erie Insurance Company (“Erie”). The policy covered both themselves and their two minor children — Appellants Anthony Gotti Bruno and McKayla Marie Blake — and it also included a separate endorsement or rider covering physical loss to the property caused by “fungi,” which the endorsement defined, inter alia, as “any type or form of ... molds.” See “Limited Fungi, Wet or Dry Rot or Bacteria Coverage Endorsement” (Exhibit B to Complaint) at 1. This rider obligated Erie to pay the Brunos up to $5,000 for “[djirect physical loss” to the property caused by mold, or any “[njecessary increase in costs” they incurred to maintain their “normal standard of living” should their residence be rendered uninhabitable as the result of mold. Id. The rider also required Erie to pay the cost of testing the air and any part of the covered property in order “to confirm the absence, presence or level of’ mold “to the extent there is a reason to believe” mold was present, and, if mold was present, it obligated Erie to pay for the cost of its removal, including the cost of tearing out any part of the property needed to gain access to the mold. Id.
On October 5, 2007, after the Brunos moved into their home, David Bruno, with the assistance of a contractor he had hired, began the process of renovating the basement, during which they removed a portion of the wood paneling which was completely covering the block walls of the basement. Once the paneling was detached, Mr. Bruno discovered two areas of black mold growing on the block walls underneath, which were in proximity to leaking water pipes.
Mr. Bruno promptly informed Erie of this discovery and, also, that he wished to initiate a claim under his homeowners’ policy. In response, on October 6, 2007, Erie sent an adjuster to his home to view the mold. The adjuster took no action at that time, but, instead, returned on October 8, 2007 with an engineer employed by Appellee, Rudick Forensic Engineering Company (“Rudick”), which had been retained by Erie to investigate the mold problem, determine its severity, and ascertain the extent to which remediation was required. After the adjuster and the engineer examined the mold growth, Mr. Bruno requested that the adjuster authorize payment of the policy limits — $5,000—in order to have the mold tested. In response to Mr. Bruno’s request, the adjuster and the engineer informed Mr. Bruno that “the mold was harmless and that they should continue tearing out the existing paneling [and] that health problems associated with mold were
Based on the assurances of the adjuster and engineer that the mold was not a health hazard, the Brunos continued to live in the house, and Mr. Bruno continued with the renovations. As the month of October progressed, Mr. Bruno and his contractor attempted to eradicate the mold which they had previously discovered, and they also removed additional sheets of paneling. These actions revealed more leaking pipes and additional areas of mold growing on the walls beyond that which was initially discovered.
Mr. Bruno informed Erie of these further discoveries, and Erie dispatched the same engineer employed by Rudick who had visited the premises previously, and the engineer visually inspected the newly-discovered areas of mold, but he did nothing else. Even though the engineer performed tests of the mold, he did not disclose those results to the Brunos, nor did he or the adjuster apprise the Brunos of the true hazard to human health posed by the mold, or indicate that it should be removed or remediated.
Meanwhile, during October, each member of the Bruno family began to suffer respiratory ailments which worsened in the months thereafter. By January 2008, Angela Bruno’s physical condition had deteriorated to the point that she developed severe coughing, difficulty breathing and clearing her throat, and intense headaches. At this point, the Brunos elected to have the mold tested, at their own expense, which revealed that the mold was toxic in nature and hazardous to human health.
After receiving the test results in January 2008, the Brunos demanded payment from Erie of the full $5,000 for the purpose of eradicating the mold, and they also made a claim under other provisions of their policy for repair of the water damage caused by the leaking pipes. Erie informed them that the matter was still being investigated and a claim decision had not yet been made. Finally, in April 2008, Erie made a $5,000 payment under the mold endorsement of the homeowners’ policy.
Angela Bruno was later diagnosed with cancer of the throat and esophagus, which her treating physicians attributed to her exposure to the toxic mold. Fearing for their safety, the Brunos subsequently vacated the house, which they were later forced to demolish, as the mold could not be eradicated.
On August 30, 2010, the Brunos filed a 12-count civil complaint against Erie, Rudick, and the Pitchers. Relevant to the specific question presented by the current appeal, in count 7 of this complaint, the Brunos asserted that Erie engaged in the following negligent acts and omissions which caused them damage and injury: “failure to recognize the nature and severity of the mold problem at the premises”; “misleading [the Brunos] concerning the nature of the mold problem in general and as it related to their health and home”; “minimizing the dangers and consequences of the mold infestation when it knew or should have known otherwise”; and the “creation or exacerbation of a dangerous condition.” Complaint, 8/30/10, at ¶ 91.
Additionally, in count 10 of their complaint, the Brunos raised a claim against Rudick for professional negligence, alleging, inter alia, that it was negligent for: delaying and then improperly conducting mold testing of the Bruno home; failing to properly read, interpret, and analyze the test results; delaying the reporting of the test results to the Brunos; failing to recognize and report to the Brunos the danger to their health and to the premises created by the mold; and minimizing the dangers and consequences posed by the mold infestation, when it knew or should have known otherwise. Id. at ¶ 111.
Both Erie and Rudick filed preliminary objections in the nature of a demurrer. The basis of Erie’s demurrer was that the Brunos’ negligence claim against it was barred by the “gist of the action” doctrine which, as discussed more fully herein, provides that an alleged tort claim against a party to a contract, based on the party’s actions undertaken in the course of carrying out a contractual agreement, is barred when the gist
The trial court sustained Erie’s preliminary objections, noting that, under the Superior Court’s formulation of the gist of the action doctrine, the critical distinction between a breach of contract action and a tort action is that “the former arises out of ‘breaches of duties imposed by mutual consensus agreements between particular individuals,’ while the latter arises out of ‘breaches of duties imposed by law as a matter of social policy.’” Trial Court Opinion, 5/24/2011, at 2 (quoting Erie Ins. Exchange v. Abbott Furnace Co.,
The trial court also granted Rudick’s preliminary objections, interpreting our Court’s decision in Bilt-Rite, supra (permitting suit by bidder on public construction contract against engineer who prepared technical specifications of bid for the school district under theory that engineer negligently furnished information, upon which the bidder justifiably relied, to proceed under Section 552 of the Restatement (Second) of Torts, “Information Negligently Supplied for the Guidance of Others,” despite lack of contractual privity between bidder and engineering firm), as establishing that privity of contract is not a prerequisite for maintaining a negligence action
Upon application of the Brunos, the court amended its order pursuant to Pa.R.A.P. 341(c) to include an express determination that an immediate appeal would facilitate the resolution of the entire case. Pursuant to this order, the Brunos took a direct appeal to the Superior Court, which affirmed in part and reversed in part in an unpublished memorandum opinion authored by Judge Olson and joined by Judges Bowes and Platt.
The court additionally rejected the Brunos’ argument that Erie’s adjuster could be found negligent under Section 323 of the Restatement (Second) of Torts — “Negligent Performance of Undertaking to Render Services” — which permits the imposition of liability on an individual for any physical harm caused by the individual’s
As for the certifícate of merit issue regarding the suit against Rudick, the court agreed with the trial court that the Brunos’ assertion of professional negligence on the part of the engineering company required it to file a certificate of merit, since it interpreted the requirements articulated in Pa.R.C.P. 1042.3 as not limited to just those in privity of contract with the professional rendering the services, and so rejected the Brunos’ argument that they did not need to file the certificate. The court, employing a policy-based analysis, determined that accepting the Brunos’ contention would be “antithetical to the purpose behind the certificate of merit requirement” articulated by our Court, which was to “ ‘devise an orderly procedure that would serve to identify and weed non-meritorious malpractice claims from the judicial system efficiently and promptly.’ ” Id. at 23-25 (quoting Worrier v. Hilliker,
We granted allowance of appeal to consider the following issues:
1. Does the “gist of the action” doctrine bar recovery on the Brunos’ negligence claim against Erie Insurance Company (“Erie” or “Insurer”) where their claim was not based on the underlying insurance contract or Erie’s obligations thereunder, but instead upon independent, affirmative, and gratuitous acts and omissions of the Insurer and its expert agent/contractor when they summarily and without analysis or testing told Mr. Bruno that the mold infestation in the home was not dangerous and described the dangers of mold as a media exaggeration?
2. In promulgating Rule 1042.1 et. seq. of the Pennsylvania Rules of Civil Procedure, did this Honorable Court, by the plain language used, require that only patients or clients of a negligent professional be obligated to file a Certificate of Merit, and was it therefore error for the Courts below to dismiss the Brunos’ professional negligence claim against Defendant, Rudick Forensic Engineering, Inc. (“Rudick” or “Contractor”), because they were neither patients nor clients of Rudick?
Bruno v. Erie Ins. Co.,
The question presented in a demurrer is whether, on the facts averred, “the law says with certainty that no recovery is possible.” MacElree v. Philadelphia Newspapers, Inc.,
A. Arguments of the Parties
The Brunos begin their argument by addressing what they consider to be the present status of Pennsylvania law regarding the gist of the action doctrine. The Brunos note that federal district courts in Pennsylvania, the Third Circuit Court of Appeals, and the Superior Court all have claimed that our Court has, heretofore, not formally adopted the gist of the action doctrine, and that both the Third Circuit and the Superior Court have predicted we will.
The Brunos next review various decisions of the Superior Court, discussed at greater length herein, in which they assert that tribunal articulated and applied different formulations of a gist of the action analysis in determining whether a particular cause of action was contractual or tortious in nature. See Brunos’ Brief at 16-18 (comparing Bash v. Bell Tel,
The Brunos contend that eToll was “wrongly decided,” and they assail its inquiry as to whether the acts in question were “tangential to the parties’ relationship” as “a very murky and expansive test” of little guiding value to courts, and posit the application of this test will result in the wrongful dismissal of many valid tort claims. Brunos’ Brief at 17. The Brunos proffer that the more relevant inquiry is that undertaken in Bash, which seeks only to determine whether the breach of duty alleged in a particular complaint is the breach of a private duty created by contracting parties, rendering it an action for breach of contract, or whether the breach of the duty alleged is that imposed by law as a matter of social policy, in which case the action must be regarded as sounding in tort.
Elaborating thereon, the Brunos argue that the fundamental question a court must answer in a gist of the action case is: “What’s this case really about?” Brunos’ Brief at 18. The Brunos note that a judicial assessment which focuses on the source of duty “will bar recovery if the duties underpinning the tort claim arose merely because the parties agreed, to them. However, it will not prevent recovery when the wrongs alleged do not arise out of duties imposed by [the parties’] contract.” Id. at 19. In the Brunos’ view, the mere fact that a contractual relationship brought the tortious wrongdoer “in the door,” so to speak, should not result in the tort claim being automatically disqualified under the gist of the action doctrine. Id. at 20.
The Brunos advocate that, if our Court formally adopts the doctrine, it should do so in the manner delineated by the Superior Court in Bash — i.e., focus the inquiry only on the source of the duty — and not introduce, as a confounding concept, the question of whether the tort and contract actions are “inextricably intertwined” as the eToll court did, and, as some federal courts following Pennsylvania law have done. Brunos’ Brief at 21 (citing Galdieri v. Monsanto,
Turning to the facts of the instant case, the Brunos contend that the lower courts erred in finding their negligence claim against Erie barred by the gist of the action doctrine. The Brunos acknowledge that Erie’s adjuster and its engineer were present at their house as a result of the insurance contract — the homeowner’s policy. However, the Brunos argue that their claim is not predicated on a breach of the adjuster’s and engineer’s duties under that policy, which were limited to determining whether the mold constituted a covered loss as defined by the policy and to ascertaining the cost of fixing it; rather, the Brunos maintain their action is predicated
In support, the Brunos highlight various factual assertions in their complaint against Erie — namely, that Erie, through the actions of its adjuster and engineer: (1) misdiagnosed the mold as not being dangerous; (2) dismissively minimized the danger of the mold; and (3) recommended that the renovation work continue, which exposed additional mold. The Brunos characterize all of these actions as “well outside” the scope of Erie’s contractual duties, inasmuch as the contract of insurance did not require Erie to determine the mold’s toxicity, or to render advice about whether Mr. Bruno should continue to remove the paneling in light of its discovery. The Brunos maintain that, because Erie’s liability under the policy, by its terms, only required it to pay up to $5,000 for direct physical loss to the property and additional living expenses in connection with the presence of mold, it was “of no contractual importance whether the mold discovered ... was toxic, [or] non-toxic.” Therefore, they reason, it was improper for the Superior Court to conclude that the duties purportedly breached by the acts of Erie’s adjuster and engineer in rendering advice about the mold’s toxicity were “ ‘defined by the terms of the contract,’ ” Brunos’ Brief at 30 (quoting Bruno, at 16). The Brunos assert that their claims that Erie’s adjuster and engineer wrongly assured them that the mold posed no danger were not “created or grounded in the insurance contract;” id. at 30, but, rather, constituted a breach of “a societal duty not to affirmatively mislead or advise without factual basis.” Id. at 28, (citing American Guarantee v. Fojanini,
Erie responds by noting that our Court has used the gist of the action doctrine to preserve a demarcation between tort and contract claims and not allow tort recovery for contractual breaches. Erie’s Brief at 11 (quoting Glazer v. Chandler,
In regards to the case at bar, Erie suggests that both lower courts properly applied the gist of the action doctrine to dismiss the Brunos’ complaint against it.
Erie, citing three unpublished decisions from federal district courts in Pennsylvania, contends that all three courts have used the gist of the action doctrine to bar tort claims against insurance carriers for their actions in handling a claim under an insurance policy, on the basis that the pleadings, although alleging negligent acts, were merely claiming the insurers breached duties created by the insurance contract. Erie’s Brief at 15-18 (citing Cimildoro v. Metro. Prop, and Cas. Co.,
Erie maintains that these cases exemplify the principle that causes of action arising from insurance contracts are properly brought as breach of contract claims, and that a mere allegation of tortious conduct by the insurer during performance of the contract does not transform the cause of action into one for tort. Erie avers that the only duties it owed the Brunos arose from the contract itself, and that it could not breach any duty of care to the Brunos in relation to the opinions offered by the adjuster and Rudick’s engineer since it had no duty of care to the homeowner with respect to that advice, which it likens to “a neighbor expressing his opinion about mold and its characteristics.” Erie’s Brief at 19. Erie proffers that its adjuster and the engineer were in the Brunos’ home only because of their contractual relationship, and their responsibility for assessing water damage and the presence of mold was done only in order to process the Brunos’ claim for benefits. Erie argues the adjuster and engineer were not in the Brunos’ home for the purposes of risk assessment or to advise them on the construction project; thus, neither the adjuster nor engineer had any duty of care to the Brunos on which a negligence claim could be based.
Erie claims that, absent the insurance contract, it would have had no duty to the Brunos at all, as it disclaims the existence of any special relationship with its insureds which would give rise to a duty independent of that created by its policies. Erie also suggests that the Brunos’ negligence claim does not rest solely on the statements of its adjuster and engineer to Mr. Bruno, as they claim in their brief, but rather on all of the aforementioned allegations of negligence in their complaint
B. The Gist of the Action Doctrine in Pennsylvania
Our Court has had scant occasion to opine as to how the gist of the action doctrine should be employed to ensure that a party does not bring a tort claim for what is, in actuality, a claim for a breach of contract. We have, nevertheless, rendered a number of prior decisions in which we have articulated the fundamental tenets of this doctrine and applied it to resolve other legal questions in which the distinction between the underlying action being a tort or contract claim was dispositive. We, therefore, begin with a discussion of those decisions, as they illustrate how this doctrine has been traditionally utilized by our courts to distinguish between tort and contract claims.
As early decisions of our Court involving the gist of the action doctrine were guided by legal principles derived from the English common law, a brief history of the
The theories of the various civil actions by which plaintiffs who suffered such losses sought recovery sounded in tort as they were based on the concept of a breach of the duty imposed by the law to exercise care in providing the service. Gradually, however, the English court system began to also recognize separate actions for “assumpsit” arising out of business relationships, which were based on the concept of a defendant being liable for a breach of the duty created by the defendant “undertaking” to render services to the plaintiff, in exchange for monetary consideration. These actions eventually evolved to the point that they became the exclusive vehicle for parties to pursue remedies for breaches of executory promises in their contracts. Id. at 382-84.
Nonetheless, the development of these contractual actions did not extinguish a party’s right to also bring tort actions in circumstances whenever such actions had been previously recognized. Id. at 384. According to Dean Prosser, “[o]nce it was clear that assumpsit would lie for any breach of contract, but that in certain situations there might still be a remedy in tort, the English courts began to be beset with problems.” Id. at 385-86. A bewildering array of decisions followed from those tribunals as they attempted to distinguish tort and contract actions, but they offered no clear principle of demarcation. Eventually, an act of the English Parliament created a division between those actions “founded upon tort” and those “founded upon contract” for purposes of determining jurisdiction of the English courts of common pleas and the costs recoverable in a particular civil action. Id. at 386-87. This compelled the English courts to, thereafter, undertake an examination of the character of each action in order to give it an appropriate classification. American courts, following the English decisions in this area, also adopted this approach by focusing on the substance, i.e., the gist, of a cause of action, in order to determine whether it stated a claim in tort or in contract. Id.
The seminal decisions from our Court articulating and applying the gist of the action doctrine were rendered in the 1800s, and the doctrine was utilized in those cases to distinguish a breach of contract claim from a tort claim for purposes of ascertaining which court had jurisdiction over a particular action, due to the fact the law at that time gave jurisdiction over contract claims valued at less than $100.00 to justices of the peace, as opposed to courts of common pleas which had jurisdiction over all tort claims irrespective of the dollar value of the injury.
In his pleading, plaintiff asserted the existence of the contract with defendant and its aforementioned terms, and also alleged that the defendant “negligently, carelessly, and unskillfully, graded and laid off said race and water-course, and built said mills; and so inaccurately and erroneously governed himself therein, and for want of due care and skill” such that it deprived plaintiff of the use of the improvements and the land. Zell,
On appeal, in order to determine whether the trial court properly had jurisdiction over the matter, our Court considered the question of the true nature of the suit and found that, while the suit may have arisen because of the existence of the contract between the parties, this fact, in and of itself, did not render it an action for breach of contract. Our Court noted that the true subject matter of the allegations in the complaint did not relate to the defendant’s failure to perform his contractual obligations, but, rather, were allegations that he had performed those obligations in a negligent or careless manner. We explained:
The gist of an action on the case [11 ] like the present, is not a failure to perform, but a failure to perform in a workmanly manner, which is a tort .... An undertaking for skill and diligence is implied no further than to raise a duty, the BREACH of which is the gravamen and meritorious cause of the action. The difference between assumpsit which is an action directly on the contract, and case which is collateral to it, is shewn by the pleadings ... These are sometimes concurrent remedies; as in an action against a carrier who may be made to respond either immediately on the contract which affords a specific ground of action, or on the custom which raises a duty to carry the goods safely; and as the one or the other form is adopted, so may the count be joined with other counts sounding in contract or tort. In all cases where the action is not on the contract, but for the breach of a collateral duty, the gist is a personal tort; as where a smith pricks a horse in shoeing, or a farrier kills him by bad medicines or neglect: and it is emphatically the gravamen in an action against a barber for barbering his customer negligenter et inartificialiter. That the defendant’s liability arose remotely out of a contract,therefore, is by no means decisive of the question.
Zell,
Consequently, with this decision, our Court endorsed the principle that merely because a cause of action between two parties to a contract is based on the actions of the defendant undertaken while performing his contractual duties, this fact, alone, does not automatically characterize the action as one for breach of contract. To the contrary, Zell established that the nature of the duty breached, as alleged in the plaintiffs pleadings, is determinative of the gist of the action; hence, actions arising “directly” from an alleged breach of a contractual duty were to be regarded as being in contract; whereas, those actions based on an alleged breach of a contracting party’s separate “collateral” duty to perform a contractual obligation with skill and diligence were to be considered as being in tort.
In the subsequent case of McCahan v. Hirst,
[T]he cause of action [in Zell ] was considered substantially a misfeasance; but here it cannot, at most, be made to amount to more than a nonfeasance; which latter, properly speaking, is the non-performance of a duty; and whenever such duty arises, as it does here, out of a contract, the nonperformance of it becomes, and in reality is, nothing more or less than a non-performance or breach of the contract imposing the duty. Hence the contract is the real foundation of the cause of action, which must be considered as arising immediately from the breach of it. But a misfeasance is a trespass or wrong committed, which, in contemplation of law, has no relation to a contract in any case.
McCahan, at 3 (emphasis original). McCahan therefore established that, whenever a plaintiffs complaint sets forth allegations which substantially constitute assertions of a defendant’s complete failure to perform duties originating from a contract — a nonfeasance — the plaintiffs action will be deemed to be a breach of contract; whereas, if the allegations substantially concern the defendant’s negligent breach of a duty which exists independently and regardless of the contract — a misfeasance — then the action will be regarded as one in tort.
Next, in Krum, supra, we applied the gist of the action doctrine to overturn a judge’s instruction to the jury which was based on his misapprehension of the nature of the underlying action. In that case, the parties had a contract which required the defendants to maintain a fence between their property and the plaintiffs adjoining lands, but the defendants neglected to perform any upkeep and permitted the fence to fall down, and they also removed a portion of the fence in conjunction with quarrying activities which encroached on the border of the plaintiffs lands. One night, the plaintiff put his horse out to pasture on his lands, but, because of the absence of fencing, the horse wandered onto the defendants’ land and tumbled to its death in the quarry. The plaintiff commenced an action to recover the value of the loss of the horse, which he asserted resulted from the defendants’ negligence. The trial court refused to charge the jury on the issue of contributory negligence because, in its view, it was the contractual duty of the defendants to maintain the fence, and it informed the jury that the defendants’ liability to the plaintiff, if any, was premised on their failure to perform this contractual duty. Our Court reversed. We found the mere existence of a contract between the parties, which obligated the defendants only to maintain the fence, did not preclude a tort action based on the defendants’ negligence, generally, in creating the dangerous condition (the open quarry pit) which was the true nature of the action. See id. at 600 (“The action was not brought to recover damages for the breach of a contract to maintain a fence. On the contrary, it was an action of case sounding in tort to recover damages for the loss of a horse resulting from the negligence of the defendants. This negligence is the very gist of the action.”).
Thereafter, in the Twentieth Century, our Court applied the gist of the action
We specifically contrasted this limited duty created by the parties’ contractual relationship with the general duty of service owed by a “common carrier,” such as a railroad or bus company, to the public, which duty “is implied by law by reason of the relation of the parties.” Id. We observed that, because of the general nature of that duty, a tort recovery would be available to anyone aggrieved by the common carrier’s breach thereof, in addition to a recovery on the carriage contract. Thus, Homey is notable for establishing that, as a matter of law, a negligence suit may not be brought for breaches of what are purely contractual duties, but also for embracing the corollary principle that a claim may be brought against a party for actions taken in performance of contractual duties, if those actions constitute a breach of a general duty of care created by law and owed to all the public.
Over sixty years later, in Reitmeyer v. Sprecher,
Our Court reversed and recognized the right of the tenant to proceed with her tort claim, based on our conclusion that the gist of that claim was the landlord’s negligence for breaching a general legal duty by failing to fulfill his promise to repair, not for a breach of the contract created by the promise itself. We explained:
Under the instant circumstances, a duty on the part of the landlord arose to repair and render safe the defective condition of the premises and if, as alleged, physical harm was caused to the tenant, by a breach of the landlord’s promise to repair, liability in tort on the part of the landlord should arise. As we said in Evans v. Otis Elevator Co.,403 Pa. 13 ,18, 168 A.2d 573 , 575 (1961):[13 ] ‘It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract.’
Id. at 398.
As the parties have discussed in their briefs, the Superior Court has fully embraced the gist of the action doctrine as a means of determining whether a putative tort claim is barred because its substance is, in actuality, a claim for breach of contract. That tribunal has also employed a source of duty analysis similar to that described in our cases discussed above as the basis for differentiating between tort and contract actions, with some variation. In the leading case by that tribunal in this area, Bash, supra, the plaintiff — a dentist— contracted with the publisher of a “yellow pages” telephone directory to place an advertisement therein, but the publisher failed to include the ad when the directory was printed. The plaintiff sued the publisher, inter alia, for both breach of contract and in tort seeking damages for “emotional distress, mental anguish, embarrassment and depression” based upon the publisher’s failure to perform the agreed upon contractual terms.
In its opinion, the court adopted the reasoning of two Pennsylvania federal district court decisions, first noting:
[I]t is possible that a breach of contract also gives rise to an actionable tort.... ‘To be construed as in tort, however, the ■wrong ascribed to defendant must be the gist of the action, the contract being collateral.’ ... A claim [in contract] cannot be converted to one in tort simply by alleging that the conduct in question was wantonly done.
Bash,
Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals.
Bash,
Subsequently, in eToll, supra, the Superior Court seemingly added an extra consideration to the Bash analysis by utilizing an additional criteria to differentiate between contract and tort claims brought in the same action — i.e., whether they are “inextricably intertwined.”
The court ultimately found that the plaintiffs fraud claims arose “in the course of the parties’ contractual relationship,” “[defendants]’ duties regarding billing and performance were created and grounded in the parties’ contract,” and the damages sought were “the types of damages which would be compensable in an ordinary contract action.” Consequently, the court held that the claims were barred because they were “not so tangential to the parties’ relationship so as to make fraud the gist of the action,” but, rather, were “inextricably intertwined with the contract claims.” Id. at 20-21.
Subsequent decisions of the Superior Court assessing whether a particular tort claim between contracting parties is barred by the gist of the action doctrine have taken varied approaches. In some cases, the court has used the more straightforward analysis set forth in Bash and examined whether the duty allegedly breached was created by the contract itself, or, instead, is in the nature of a broader duty owed to others imposed as a result of the social policy reflected in the law of torts. See, e.g., Reed v. Dupuis,
The Commonwealth Court follows a different analysis, which rests on the same nonfeasance/misfeasance distinction our Court articulated in McCahan:
If there is ‘misfeasance,’ there is an improper performance of the contract in the course of which breaches a duty imposed by law as a matter of social policy. In such instances, the ‘gist’ of the plaintiffs action sounds in tort and the contract itself is collateral to thecause of action. On the other hand, if there is ‘nonfeasance,’ the wrong attributed to the defendant is solely a breach of the defendant’s duty to perform under the terms of the contract. In such instances, the ‘gist’ of the plaintiffs action sounds in contract, and the plaintiff would not have a cause of action but for the contract.
Harleysville Homestead Inc. v. Lower Salford Twp. Auth.,
As the foregoing discussion indicates, the fundamental principles comprising the gist of the action doctrine have long been an integral part of our Court’s jurisprudence and have, at least in two cases — Homey and Reitmeyer — been employed by our Court for the purpose of determining whether a plaintiff may, as a matter of law, bring an action in tort for a defendant’s alleged negligent acts committed during the existence of their contractual relationship. Likewise, the Superior and Commonwealth Courts have used this doctrine for the same purpose in their consideration of specific questions such as that presented by the case at bar — namely, whether a purported tort claim was properly dismissed by a trial court because the true gist or gravamen of the claim was for breach of a contract which existed between the parties.
The general governing principle which can be derived from our prior cases is that our Court has consistently regarded the nature of the duty alleged to have been breached, as established by the underlying averments supporting the claim in a plaintiffs complaint,
Notably, and of relevance to the case at bar, our prior decisions in Zell and Krum underscore that the mere existence of a contract between two parties does not, ipso facto, classify a claim by a contracting party for injury or loss suffered as the result of actions of the other party in performing the contract as one for breach of contract. Indeed, our Court has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party, see, e.g., Bloomsburg Mills v. Sordoni,
Consequently, a negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed. See Zell,
C. Analysis
We now apply these principles to the case at bar. Because this case comes to us in the procedural posture of a pretrial ruling on a demurrer, we consider whether the relevant facts, as pled in the Brunos’ negligence claim against Erie for the actions of its agents — its adjuster and engineer— and accepted as true, as our standard of review requires, MacElree, supra, state a claim for Erie’s breach of a contractual obligation created by the policy of insurance, or, rather, for a breach of an independent social duty imposed by the law of torts. The homeowners’ policy required Erie to pay up to $5,000 to the Brunos, when their home sustained a direct physical loss as the result of mold, for the cost of: (1) removing the mold, including tearing out or replacing parts of the property in order to gain access to the mold; (2) testing the air inside the property, or the property itself, to confirm the presence of mold; and (3) any increased expenses incurred by the Brunos to maintain their standard of living, if the subject property was rendered uninhabitable by the mold. The Brunos’ claim against Erie for its alleged actions at issue in this appeal, quite simply, is not based on Erie’s violation of any of these contractual commitments. The Brunos do not allege that Erie failed to pay the $5,000 it was obliged to pay by the policy for the costs of testing and remediation of damage to the property, and, indeed, the parties agree that Erie did, in fact, pay the Brunos the $5,000 it owed under the policy for these purposes.
Instead, the Brunos’ claim against Erie is predicated on the allegedly negligent actions taken by its agents on behalf of Erie while they were performing Erie’s contractual obligation to investigate the claim made by the Brunos under their policy in order to determine if the mold discovery triggered any of Erie’s aforementioned payment obligations. Specifically, as recounted supra, the Brunos asserted in their complaint that Erie’s agents, while conducting the claim investigation,
Accordingly, while Erie had contractual obligations under its policy to investigate whether mold was present, and also to pay for all property damage caused by mold, the substance of the Brunos’ allegations is not that it failed to meet these obligations; rather, it is that Erie, during the course of fulfilling these obligations through the actions of its agents, acted in a negligent manner by making false assurances regarding the toxicity of the mold and affirmatively recommending to the Brunos that they continue their renovation efforts, which caused them to suffer physical harm because of their reasonable reliance on those assurances. Consequently, these allegations of negligence facially concern Erie’s alleged breach of a general social duty, not a breach of any duty created by the insurance policy itself. The policy in this instance merely served as the vehicle which established the relationship between the Brunos and Erie, during the existence of which Erie allegedly committed a tort. We, therefore, reverse the order of the Superior Court affirming the trial court’s dismissal of the Brunos’ negligence claim on the basis of its application of the gist of the action doctrine.
III. Dismissal of Complaint against Rudick for Failure to File A Certificate of Merit.
We now turn to the second question upon which we granted review, namely, whether the Brunos were required to file a certificate of merit to proceed with their claim against Rudick even though they were not in contractual privity with that engineering firm.
A. Arguments of the Parties
The Brunos argue that Pa.R.C.P. 1042.1 (“Rule 1042.1”), which defines the scope of the rules of civil procedure governing professional liability actions — including Pa.R.C.P. 1042.3 (“Rule 1042.3”) — limits the requirement of the filing of a certificate of merit to only those professional liability
The Brunos reject this interpretation, which they note was based, in large part, on our Bilt-Rite decision. The Brunos argue that, while our Court recognized in Bilt-Rite that a third party action may lie against a professional without any privity of contract between the third party and professional, this decision cannot be interpreted as requiring a certifícate of merit in those types of cases, as the need for such a certificate was not at issue, and, hence, not addressed by our Court. The Brunos lastly suggest they were reasonably relying on the plain language of the rule as currently written, and urge that, if we interpret it in a more expansive manner, that would constitute a change in the fundamental law which should only be applied prospectively — either through caselaw, or a rule-change via the normal rulemaking process — but not to the instant matter.
In response, Rudick echoes the policy-based rationale utilized by the lower courts and urges us to adopt the lower courts’ broad interpretation of these rules, dehors their text, to require the filing of a certificate of merit when third parties, who are not patients or clients of a licensed professional, bring an action for negligence against the professional. In this regard, Rudick contends that the purpose of requiring a certificate of merit was, as articulated by our Court, to “weed non-meritorious malpractice claims from the judicial system efficiently and promptly.” Rudick’s Brief at 4 (quoting Worrier,
B. Governing Law and Analysis
Since this question involves the proper interpretation of the language of our rules of civil procedure, it is one of law, and, thus, our standard of review is de novo. Touloumes v. E.S.C.,
The relevant portions of the rules at issue, Rules 1042.1 and 1042.3, provide:
Rule 1042.1. Professional Liability Actions. Scope. Definition
(a) The rules of this chapter [Pa.R.C.P. 1001, et. seq.] govern a civil action in which a professional liability claim is asserted by or on behalf of a patient or client of the licensed professional against
(1) a licensed professional
(c) As used in this chapter, “licensed professional” means
(1) any person who is licensed pursuant to an Act of Assembly as
(vi) an engineer.
Pa.R.C.P. 1042.1(a), (c).
Rule 1042.3. Certificate of Merit
(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within sixty days after the filing of the complaint, a certifícate of merit signed by the attorney or party that either
(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.
Pa.R.C.P. 1042.3(a) (internal explanatory notes omitted).
When interpreting the language of our rules of civil procedure, we are guided by the fundamental precepts set forth in Pa.R.C.P. 127. Touloumes,
Rule 127. Construction of Rules. Intent of Supreme Court Controls
(a) The object of all interpretation and construction of rules is to ascertain and effectuate the intention of the Supreme Court.
(b) Every rule shall be construed, if possible, to give effect to all its provisions. When the words of a rule are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.
(c) When the words of a rule are not explicit, the intention of the Supreme Court may be ascertained by considering, among other matters (1) the occasion and necessity for the rule; (2) the circumstances under which it was promulgated;
(3) the mischief to be remedied; (4) the object to be attained; (5) the prior practice, if any, including other rules and Acts of Assembly upon the same or similar subjects; (6) the consequences of a particular interpretation; (7) the contemporaneous history of the rule; and (8) the practice followed under the rule.
Pa.R.C.P. 127.
In particular, Pa.R.C.P. 127(b) governs our interpretation in this instance. It requires us to read Rules 1042.1 and 1042.3 in conjunction, in order to give the provisions of both rules their intended effect. In this endeavor, we also follow the cardinal tenet articulated in Pa.R.C.P. 103 that “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage,” unless they have acquired a peculiar meaning, or are otherwise defined by another rule of civil procedure.
Applying these principles, it is evident that the plain language of Rule 1042.1 expressly cabins the application of the requirements of Rule 1042.3 for the filing of a certificate of merit to only those professional liability claims which are asserted against a licensed professional “by or on behalf of a patient or client of the licensed professional.” Pa.R.C.P. 1042.1(a). A certificate of merit is not, therefore, required for professional liability actions brought by plaintiffs who are not patients or clients of a licensed professional. This construction is supported by the fact that the prior version of Rule 1042.1 — in effect from 2003 to 2008 — was much broader in scope, providing: “The rules of this chapter govern a civil action in which a professional liability claim is asserted against a licensed professional.” Pa.R.C.P. 1042.1(a) (repealed June 16, 2008). The explanatory note to the 2008 amendments, which yielded the present version of the relevant language in Pa.R.C.P. 1042.1(a), plainly states that one of the purposes for this amendment was “to make clear that Rule 1042.1 et seq. ... applies to claims by or on behalf of patients or clients against licensed professionals.” Pa.R.C.P. 1042.6, comment. Pa.R.C.P. 1042.1(a), as amended, was, thus, intended to explicitly narrow the type of professional liability claims in which a certificate of merit is required to only those in which there is a professional relationship between a licensed professional and a patient and client.
Next, in accordance with Rule 103, we find that the terms “patient” or “client,” as used in Rule 1042.1, are to be given their common and approved meanings, inasmuch as they are not specially defined by other rules of civil procedure, nor have they otherwise acquired a peculiar meaning applicable in this context.
IV. Disposition.
The order of the Superior Court is reversed, and the matter is remanded to the Superior Court for further proceedings consistent with this Opinion. Jurisdiction relinquished.
Notes
. This background is derived from the complaint filed in the trial court which commenced the instant litigation. Inasmuch as this case comes to our Court as an appeal from the trial court's grant of a demurrer to that complaint, our standard of review requires us to accept as true all well-pleaded facts contained therein. Bilt-Rite Contractors v. Architectural Studio,
. In count 7, the Brunos additionally pled 18 other purported negligent acts and omissions of Erie; however, inasmuch as our grant of allowance of appeal only encompasses the Brunos' negligence claim predicated on the conduct of Erie’s adjuster and Rudick in advising the Brunos that the mold they discovered was harmless, and that they should proceed with the renovations, see infra at note 10, we need not address in the instant appeal whether these additional allegations of Erie’s negligence are barred by the gist of the action doctrine.
. The Brunos did not plead a breach of contract claim against Erie.
. The term gist has traditionally been understood to mean "[t]he ground or essence []of a legal action[].” Black’s Law Dictionary 711 (8th ed.2009).
. Gravamen is defined as "[t]he substantial point or essence of a claim, grievance or complaint.” Id. at 721.
. The B ranos, while maintaining the position that they were not obligated to file a certificate of merit, in an apparent abundance of caution also sought an extension of time from the trial court to file the certificate. The court denied this motion, and the propriety of that denial is not before us in this appeal.
. In its disposition, the Superior Court also reversed the trial court's ruling denying the Brunos leave to amend their complaint to plead a claim for punitive damages, and affirmed the decision of the trial court not to grant the Brunos an extension of time to file a certificate of merit. These aspects of the Superior Court decision are not before us in the present appeal.
. See, e.g., Pediatrix Screening, Inc. v. TeleChem Int’l, Inc.
. The Pennsylvania Association for Justice ("PAJ”) has submitted an amicus brief in which it recognizes the utility of the gist of the action doctrine in preventing contract claims from being brought as tort actions; however, PAJ cautions that the doctrine, in its current form, does not provide a clear and understandable tool to separate genuine contract claims from tort ones, nor does the doctrine acknowledge that there are some situations where certain relationships may be established by contract, such as physician and patient, and landlord and tenant, but actions taken in the course of the contractual relationship may also give rise to tort liability in addition to a claim for breach of contract. Because of the potential confusion in the application of this doctrine, PAJ advocates using only the traditional pretrial tools afforded by the rules of civil procedure, such as motions for judgment on the pleadings or summary judgment, to weed out putative tort claims that are not actionable. Alternatively, PAJ urges that our Court restrict the application of the gist of the action doctrine to situations "where ... the only basis of a tort duty is in a contract between the parties and. ... where the duty does not involve larger social policies embodied in the law of torts.” PAJ Brief at 12 (emphasis original).
The Pennsylvania Defense Institute and the Insurance Federation of Pennsylvania ("PDI/IFP”) have filed a joint amicus brief in which they assert that our Court should not consider the preliminary question of whether the gist of the action doctrine should be recognized as part of Pennsylvania law since, in their view, it is an "intellectual exercise because the ... parties are in agreement on the fundamental purpose of the doctrine.” They also argue, somewhat quizzically, that the Brunos waived the question of whether the gist of the action doctrine should be adopted since they fail to "develop any argument for the repudiation of that doctrine.” PDI/IFP Brief at 6-7. PDI/IFP further take the position that, in any event, the gist of the action question is moot, since, in their view, the Brunos have no viable negligence claim which they can assert against Erie. PDI/IFP maintain that the Brunos have already pled bad faith claims against Erie in their complaint which they view as a sufficient basis to obtain extra-contractual remedies.
. Inasmuch as we accepted review only to resolve the narrow question of whether the Brunos' negligence claim, as pled in their complaint, was barred by the gist of the action doctrine as the lower courts found, contrary to the suggestion of amici PDI/IFP, the question of whether that claim is otherwise legally viable is not before us and, hence, does not impact our consideration of this issue. Further, we reject the proposition advanced by these amici that undertaking to clarify the application of the gist of the action doctrine in Pennsylvania constitutes a mere “intellectual exercise" in this instance. PDI/IFP Brief at 7. As part of our determination of the issue we accepted for review, we must, necessarily, explicate the governing legal principles.
. An action in "case” was, under the common law of the era, considered an action sounding in tort. Krum v. Anthony,
. As a leading treatise on the law of torts, coauthored by Dean Prosser, observes, this nonfeasance/misfeasance distinction was the earliest line of division developed by American courts to differentiate between tort and contract actions. Used in this context, misfeasance means more than complete non-performance of a contractual duty, and thus encompasses situations where a party attempts performance of a contractual obligation, but does so improperly or without reasonable care. W. Page Keeton, Prosser and Keeton on Torts 659-60 (5th ed.1984) (hereinafter “Prosser and Keeton ”).
. In Evans, our Court found that the defendant, an elevator repair company, had a general duty of care, imposed by law, "to perform his contractual undertaking in such manner that third persons — strangers to the contract — will not be injured thereby.”
. Both the Third Circuit Court of Appeals, as well as some federal district courts, have looked to eToll as the controlling statement of Pennsylvania law in this area and have, in their analysis, found putative tort claims barred because they were "inextricably entwined” with breach of contract claims based upon the same conduct. See, e.g., Addie v. Kjaer,
. The facts that a court examines in this determination are necessarily dependent on when, procedurally, this inquiry is undertaken. Where, as here, the question is presented in a pretrial motion for a demurrer, the court considers only the well-pleaded facts in the parties’ complaint. See MacElree, supra. However, if the question is presented in subsequent contexts, such as in a motion for a directed verdict, which is what transpired in Horney, then the facts, of course, should be viewed in accordance with the applicable standard of review.
. See Locke v. Ozark City Bd. Of Educ.,
. With respect to the Superior Court’s eToll decision, we note that, because that court acknowledged in its opinion this source of duty distinction and incorporated it into its analysis, its consideration of whether tort and contract claims brought together in the same action are "inextricably intertwined” should be viewed in this context, i.e., as a determination of whether the nature of the duty upon which the breach of contract claims rest is the same as that which forms the basis of the tort claims.
. We also reject the suggestion of Erie and PDI/IFP that the Brunos’ negligence claim is somehow subsumed in their separate claim against Erie for bad faith. It is not, since the duty at issue in that claim is the statutorily created obligation of Erie to have acted in good faith with respect to payment of the Brunos’ first party claims for property damage under their insurance policy. See Toy v. Metropolitan Life Ins.,
. Amicus PAJ endorses the Brunos’ suggested adoption of a plain meaning approach to interpreting these rules, and urges that we not focus on the perceived policy-based consequences of their interpretation as the Superior Court did. In PAJ’s view, under the plain meaning of these rules, the Brunos were excused from having to obtain a certificate of merit to proceed with their suit against Rudick.
. Amici PDI/IFP echo Rudick’s assertion that the Superior Court’s interpretation of the rule is consistent with its purpose — namely, to reduce the number of meritless professional malpractice suits — and that we should endorse that interpretation. Amici also point out that the term "client” is undefined in the rules of civil procedure, and, thus, could be read broadly to encompass third parties like the Brunos.
. Since we find no ambiguity in the meanings of these terms, there is no need to resort to extraneous policy considerations to define them, as such considerations become determinative only when the "words of a rule are not explicit.” Pa.R.C.P. 127(c); cf. Touloumes (considering factors in aid of construction enumerated in Pa.R.C.P. 127(c) because language of rule was ambiguous). Regarding Rudick's argument that a plain meaning construction may lead to absurd results as applied to tort actions brought jointly against a licensed professional in contractual privity with the plaintiff and one who is not, this view is by no means universally shared. A noted authority on the operation of our rules of civil procedure, Judge Stanton R. Wettick, has offered thoughtful reasons why a certificate of merit should not be required in such circumstances:
A third party who is allegedly injured as a result of a licensed professional’s deviation from acceptable professional standards (i.e., a party who is not a patient or a client) does not have the same involvement with the licensed professional and does not have the same access to relevant information. Thus, third parties are likely to need significant discovery before they can obtain an expert opinion as to whether the licensed professional deviated from an acceptable standard of care.
Penn Dev. v. Chevy Chase Const., 2010 Pa. Dist. & Cnty. Dec. Lexis 17 (Allegheny County Court of Common Pleas 2010).
. While it is trae that, in Bilt-Rite, we recognized a cause of action against a professional by a party not in privity of contract with the professional, we did not address the question of whether a certificate of merit would be required for a third-party plaintiff bringing such suits, since such question was not before our Court. Further, in the nearly ten years since the Bilt-Rite decision, we have not amended the rale to add such a requirement.
Concurrence Opinion
concurring.
I agree in full with the majority’s analysis concerning a certifícate of merit. I also agree the “gist of the action” doctrine does not bar the present action because statements concerning toxicity are outside the scope of the insurance policy, but I write separately to caution against what I deem troublesome language. To