[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