Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Alesia S. Sulock of Marshall Dennehey Warner Coleman & Goggin. Courtesy Photo. Alesia S. Sulock of Marshall Dennehey Warner Coleman & Goggin. Courtesy Photo.

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.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.