Bruno, D., Aplts. v. Erie Insurance

[J-23-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
DAVID BRUNO AND ANGELA BRUNO, : No. 25 WAP 2013
HUSBAND AND WIFE AND ANTHONY :
GOTTI BRUNO AND MCKAYLA MARIE : Appeal from the Order of the Superior
BLAKE, BY THEIR PARENTS AND : Court entered July 10, 2012 at No. 1154
LEGAL GUARDIANS, DAVID BRUNO : WDA 2011, affirming in part and vacating
AND ANGELA BRUNO, : in part the Order of the Court of Common
: Pleas of McKean County entered June 27,
Appellants : 2011 at No. 1369 C.D. 2009, and
: remanding.
:
v. : ARGUED: April 8, 2014
:
:
ERIE INSURANCE COMPANY, RUDICK :
FORENSIC ENGINEERING, INC., :
THERESA PITCHER AND MARC :
PITCHER, :
:
Appellees :
CONCURRING OPINION
MR. JUSTICE EAKIN DECIDED: DECEMBER 15, 2014
I agree in full with the majority’s analysis concerning a certificate 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 the extent the
majority is perceived to “paint with a broad brush,” suggesting any negligence claim
based on a contracting party’s manner of performance does not arise from the
underlying contract, see Majority Slip Op., at 35, I must disagree. In some cases, such
as here, that may be the case. However, synthesizing case law to stand for such a
broad pronouncement does not comport with the “gist of the action” doctrine — an
inherently circumstantial analysis. See eToll, Inc. v. Elias/Savion Advertising, Inc., 811
A.2d 10, 17 (Pa. Super. 2002) (“[W]hether [a] claim [is] actually barred by the doctrine
appears to vary based on the individual circumstances and allegations[.]”).
Mr. Chief Justice Castille joins this concurring opinion.
[J-23-2014] [MO: Todd, J.] - 2