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
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).