X hits on this document

PDF document

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA - page 36 / 38

89 views

0 shares

0 downloads

0 comments

36 / 38

documents, and monies received and collected on Defendant’s behalf by title/settlement agents. (Id.

at ¶105.) Consequently, Plaintiffs claim Defendant negligently entrusted the agents and negligently

failed to supervise the agents’ conduct which resulted in this pervasive pattern of overbilling.

Defendant maintains that Plaintiffs have failed to establish that Commonwealth Land owed

the insurance purchasers a legal duty. (Def. Mot. to Dismiss, 44.) As discussed above, the duty of

care arises from the August 2005 Amendment to the TIRBOP Manual because it places the burden

on the title insurer or its agent to conduct a title search on the property, which included an

investigation of the existence of prior title insurance, and to issue the insurance rate based on the

findings.

Defendant also argues that Plaintiffs are barred from bringing its negligence claim because

the present action stems from a contract, not from a duty of care required for a tort claim. The gist

of the action doctrine “precludes plaintiffs from re-casting ordinary breach of contract claims into

tort claims.” eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. Ct. 2002).

In other words, Plaintiffs only may bring a claim under tort law if the “gist of the action” is based

on tortious, rather than contractual allegations. Carcaise v. Cemex, Inc., 200 Fed.Appx. 116, 126

(3d Cir. 2006).

Courts have held that the gist of the action doctrine bars tort claims: “(1) ‘arising solely from

a contract between the parties’; (2) where ‘the duties allegedly breached were created and grounded

in the contract itself’; (3) where ‘the liability stems from a contract’; or (4) where the tort claim

‘essentially duplicates a breach of contract claim or the success of which is wholly dependent on the

terms of a contract.’” eToll, 811 A.2d at 19 (internal citations omitted).

36

Document info
Document views89
Page views89
Page last viewedSun Dec 04 15:01:16 UTC 2016
Pages38
Paragraphs853
Words11377

Comments