Bruno, D., et al, Aplts. v. Erie Insurance, et al (concurring)

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[J-23-2014] IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT DAVID BRUNO AND ANGELA BRUNO, HUSBAND AND WIFE AND ANTHONY GOTTI BRUNO AND MCKAYLA MARIE BLAKE, BY THEIR PARENTS AND LEGAL GUARDIANS, DAVID BRUNO AND ANGELA BRUNO, : : : : : : : : Appellants : : : v. : : ERIE INSURANCE COMPANY, RUDICK : : FORENSIC ENGINEERING, INC., : THERESA PITCHER AND MARC : PITCHER, : : Appellees No. 25 WAP 2013 Appeal from the Order of the Superior Court entered July 10, 2012 at No. 1154 WDA 2011, affirming in part and vacating in part the Order of the Court of Common Pleas of McKean County entered June 27, 2011 at No. 1369 C.D. 2009, and remanding. ARGUED: April 8, 2014 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

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