The Superior Court of Pennsylvania in Seidner v. Finkelman, Nos. 716 EDA 2017, 808 EDA 2017, 2018 Pa. Super. Unpub. LEXIS 3249, at *11 (Pa. Super. 2018) weighed in on the gist of the action in legal malpractice claims (albeit in an unpublished opinion). Our courts have long recognized a legal malpractice action can sound in tort or contract. In the last several years Pennsylvania courts have not spilled a lot of ink on the distinction between the two causes of action. Federal courts in Pennsylvania have been much more active in discussing the distinction and its importance.

Legal malpractice actions often include a claim for breach of contract for no reason other than to increase the statute of limitations from two to four years. There are legal malpractice claims that can sound in contract, but not all do. Breach of contract claims which arise from breaches of the standard of care are tort concepts that should not be the basis for a plaintiffs’ breach of contract claims. The Pennsylvania Supreme Court described generally how to determine whether a claim sounds in tort or contract: “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 plaintiff’s complaint, to be the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract.  In this regard, the substance of the allegations comprising a claim in a plaintiff’s complaint are of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort, e.g., for negligence, is not controlling.”