                                 [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
