J-A05024-12

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

ERIE INSURANCE COMPANY, RUDICK

FORENSIC ENGINEERING, INC., AND 

THERESA PITCHER AND MARC PITCHER,

Appellees No. 1154 WDA 2011

Appeal from the Order Entered June 27, 2011

In the Court of Common Pleas of McKean County

Civil Division at No(s): 1369 of 2009.

BEFORE: BOWES, OLSON, and PLATT,* JJ.

MEMORANDUM BY OLSON, J.: FILED JULY 22, 2015

Appellants, 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, appeal from the trial court’s order 

entered June 27, 2011, wherein the trial court amended its order entered 

May 25, 2011, and made an “express determination that an immediate 

appeal [of the May 25, 2011 order] would facilitate resolution of the entire 
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case.”1 See Pa.R.A.P. 341(c). The case returns to this Court following 

remand from the Pennsylvania Supreme Court. We vacate the trial court’s 

order and remand.

On August 30, 2010, Appellants filed a twelve-count complaint against 

Erie Insurance Company (“Erie Insurance”), Rudick Forensic Engineering, 

Inc. (“Rudick Engineering”), Theresa Pitcher, and Marc Pitcher.2 According 

to the complaint, in September 2007, David Bruno negotiated the purchase 

of the Pitchers’ Bradford, Pennsylvania house. Appellants’ Complaint, 

8/30/10, at ¶ 6. Prior to the sale of the house, the Pitchers executed a 

“Seller’s Property Disclosure Form” and delivered the form to Appellants. 

The form, which is required by Pennsylvania’s Real Estate Seller Disclosure 

Law, 68 Pa.C.S.A. § 7301, et seq., obligated the Pitchers to “disclose to the 

buyer [of the real estate] any material defects with the property known to 

the seller.” 68 Pa.C.S.A. §§ 7303 and 7304. Yet, as Appellants aver, the 

Pitchers’ “disclosure[ form] failed to inform [Appellants] that [the Pitchers] 

were aware of the presence of water leakage and of mold of a type and in a 

____________________________________________

1

The trial court’s May 25, 2011 order: 1) sustained the preliminary 

objections of Erie Insurance Company; and 2) sustained in part and 

overruled in part the preliminary objections of Rudick Forensic Engineering, 

Inc.

2 Appellants instituted the current lawsuit on September 28, 2009, by filing a 

praecipe for a writ of summons.
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quantity that it posed a health hazard to residents of the home.” Appellants’ 

Complaint, 8/30/10, at ¶ 4. 

Unaware of the water or mold, Appellants purchased the Pitchers’ 

house on September 28, 2007. Id. at ¶¶ 9 and 13. Further, in connection 

with the ownership of the property, David Bruno purchased a Homeowner’s 

Insurance Policy from Erie Insurance. Id. at ¶ 11. The policy insured each 

of the Appellants. Id. at ¶ 15.

As Appellants aver, on October 5, 2007, David Bruno and a contractor 

were remodeling the basement of the house when they discovered “two 

damp areas with black mold behind the paneling . . . , which appeared to be 

in the vicinity of leaky pipes located behind the walls.” Id. at ¶ 12. David 

Bruno immediately contacted Erie Insurance, notified the company of the 

damage, and informed Erie Insurance “that he wished to initiate a claim 

under his [Homeowner’s Insurance P]olicy for the damage to his home 

caused by the leakage of water and the mold.” Id. at ¶ 14.

On October 9, 2007, Scott Steffey (an adjuster for Erie Insurance) and 

Jerome D. Paulick, P.E. (an engineer for Rudick Engineering) arrived at 

Appellants’ home to inspect the damage. Id. at ¶ 16. Appellants aver:

Mr. Steffey was asked . . . if he would authorize payment of 

the policy limit for mold of [$5,000.00], so that [Appellants] 

could have the mold tested. Both Mr. Steffey and [Mr. 

Paulick] told [David] Bruno and [David Bruno’s] contractor 

that the mold was harmless and that they should continue 

tearing out the existing paneling. [Messrs. Steffey and 

Paulick] stated that health problems associated with mold 

were a media frenzy and overblown. Mr. Steffey stated that 
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he could not authorize payment, as no determination had 

yet been made that coverage was available.

Id. at ¶¶ 18-20 (internal paragraphing omitted).

According to Appellants’ complaint, “[b]ased on the assurances that 

[Appellants] received from Rudick [Engineering] and Scott Steffey that the 

mold did not pose a health hazard, [David] Bruno and his contractor

proceeded to remove additional paneling from the basement and attempted 

to eradicate the mold they found there themselves.” Id. at ¶ 21. During 

the course of this remodeling, Appellants continued to live in the house. Id. 

As the remodeling progressed, David Bruno and his contractor 

discovered additional plumbing leaks and other areas of black mold. Id. at 

¶ 22. Appellants notified Erie Insurance of these additional findings and Erie 

Insurance again sent Mr. Paulick, from Rudick Engineering, to inspect the 

damage. Id. at ¶ 23. During this second inspection, “[n]either Erie 

[Insurance] nor its consultant, Rudick [Engineering], told [Appellants] of the 

dangers to their physical health by exposure to the mold in their home, nor 

the necessity of quick professional action to remediate, encapsulate and/or 

remove the mold before it spread.” Id. at ¶ 24.

According to Appellants:

As October [2007] progressed, [Appellants] began to 

experience health problems, beginning with respiratory 

problems that appeared to be sinusitis or allergies and 

headaches. [Appellants] did not at that time associate 

these health problems with the presence of mold in their 

house. 
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In January [2008], Angela Bruno became seriously ill 

experiencing severe coughing, difficulties clearing her throat 

and breathing, and severe headaches. In an attempt to 

determine the cause, [Appellants] decided to have the mold 

in their basement tested, on their own, at their own 

expense. The testing revealed the presence of toxic mold in 

their basement, which posed a health hazard.

Id. at ¶¶ 26-29 (internal paragraphing omitted).

Following the test, Appellants contacted Erie Insurance and “asked Erie 

to pay the [$5,000.00] coverage available under [the] policy for mold 

eradication as well as other coverage available for the repair of water 

damage.” Id. at ¶ 30. Erie Insurance informed Appellants that the matter 

was still under investigation and that a claim decision had not yet been 

made. Id.

On April 23, 2008, Erie Insurance rendered payment on the claim. Id.

at ¶ 32. Yet, as Appellants contend, “[b]y that point, the problems with 

mold in [Appellants’] home had become much more serious.” Id. at ¶ 33. 

Indeed, Appellants allege that, as a direct and proximate result of the acts 

and omissions of the defendants: “Angela Bruno has been diagnosed with 

cancer of the esophagus and voice box[,] which her doctors believe was 

caused by exposure to the mold in the home;” Appellants were required to 

move out of their home; and, because Appellants’ home could not be 

eradicated of mold, Appellants were forced to demolish the house. Id. at 

¶¶ 33-36.
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Based upon the above averments, Appellants levied twelve claims 

against the defendants. Counts one through four were filed against Theresa 

and Marc Pitcher and are not relevant to the current appeal. The remaining 

counts are as follows:3 Count 5 (bad faith against Erie Insurance); Count 6 

(breach of covenant of good faith and fair dealing against Erie Insurance, 

asserted solely by David Bruno); Count 7 (negligence against Erie Insurance, 

asserted by Angela Bruno and David Bruno); Count 8 (breach of contract 

against Rudick Engineering); Count 9 (negligence against Rudick 

Engineering); Count 10 (professional liability against Rudick Engineering); 

Count 11 (negligent misrepresentation against Rudick Engineering); and, 

Count 12 (misrepresentation/fraud against Rudick Engineering). Each tort 

claim listed above demanded the award of punitive damages. Moreover, 

Appellants did not file a certificate of merit with their complaint.

With respect to Erie Insurance, only Count 7 – the negligence claim –

is relevant to the current appeal. As to this claim, Appellants alleged that 

Erie Insurance was negligent in: misleading Appellants about the nature of 

the mold problem; failing to “recognize the nature and severity of the mold 

problem;” failing to warn Appellants of the mold problem; failing to select 

and train its agents and employees; failing to properly inspect the premises; 

failing to properly analyze the test results; delaying the reporting of the test 

____________________________________________

3 Unless otherwise indicated, the claims were asserted by all Appellants.
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results; and, minimizing the dangers and consequences of the mold 

infestation. Id. at ¶ 91(a)-(v).

On December 3, 2010, Erie Insurance filed preliminary objections to 

Appellants’ complaint and challenged the complaint on three grounds. First, 

Erie Insurance claimed that, since Pennsylvania law “does not recognize an 

independent cause of action for breach of the contractual duty of good faith 

and fair dealing,” Count 6 of Appellants’ complaint must be dismissed with 

prejudice. Erie Insurance’s Preliminary Objections, 12/3/10, at 3; Pa.R.C.P. 

1028(a)(4). Second, Erie Insurance contended that Appellants’ negligence 

claim must be dismissed with prejudice, as it was barred by the gist of the 

action doctrine. Erie Insurance’s Preliminary Objections, 12/3/10, at 4; 

Pa.R.C.P. 1028(a)(4). Finally, Erie Insurance filed a preliminary objection in 

the nature of a motion to strike Appellants’ demand for a jury trial, as 

pleaded within Count 5 (bad faith) of Appellants’ complaint. Erie Insurance’s 

Preliminary Objections, 12/3/10, at 6-7; Pa.R.C.P. 1028(a)(2).

Rudick Engineering filed a companion set of preliminary objections 

and, within this pleading, also raised three grounds for relief. First, Rudick 

Engineering filed a preliminary objection in the nature of a motion to strike 

Appellants’ demands for punitive damages. Rudick Engineering’s Amended 

Preliminary Objections, 2/10/11, at 1; Pa.R.C.P. 1028(a)(2). According to 

Rudick Engineering, “[even i]f proven, the allegations in [Appellants’] 

complaint describe nothing more than negligence” and, thus, the allegations 
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could not support the award of punitive damages. Rudick Engineering’s Brief 

in Support of Amended Preliminary Objections, 2/10/11, at 4. Rudick 

Engineering’s second preliminary objection was in the nature of a demurrer 

and claimed that Appellants’ breach of contract claim (Count 8) must be 

dismissed, as there was no contract between Appellants and Rudick 

Engineering. Rudick Engineering’s Amended Preliminary Objections,

2/10/11, at 1; Pa.R.C.P. 1028(a)(4). Finally, Rudick Engineering filed a 

preliminary objection in the nature of a motion to strike the entirety of 

Appellants’ professional liability claim (Count 10). Rudick Engineering’s 

Amended Preliminary Objections, 2/10/11, at 1; Pa.R.C.P. 1028(a)(2). 

Rudick Engineering noted that Appellants failed to attach a certificate of 

merit to their complaint. According to Rudick Engineering, this failure 

violated Pennsylvania Rule of Civil Procedure 1042.3 and required that the 

professional liability claim be stricken. Rudick Engineering’s Amended 

Preliminary Objections, 2/10/11, at 1-2.

Appellants responded to the preliminary objections and also filed a 

“Motion to Extend Time for Filing Certificate of Merit.” Within the latter 

filing, Appellants contended that a certificate of merit was unnecessary in 

their case. However, Appellants declared that – if the trial court were to 

determine that a certificate of merit was necessary – Appellants requested 

the trial court to grant them a 60-day extension for filing the certificate of 

merit. Motion to Extend Time for Filing Certificate of Merit, 1/27/11, at 1-3.
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Following a consolidated oral argument, the trial court ruled upon both 

sets of preliminary objections in an opinion and order entered May 25, 

2011.4 With respect to Erie Insurance’s preliminary objections, the trial 

court sustained the preliminary objections in total. Thus, the trial court 

dismissed Count 6 (breach of covenant of good faith and fair dealing) and 

Count 7 (negligence) of Appellants’ complaint with prejudice. Moreover, 

with respect to Count 5 (bad faith), the trial court ordered that Appellants’ 

demand for a jury trial be stricken.5 Trial Court Order, 5/25/11, at 1. 

Within this same May 25, 2011 order, the trial court sustained in part and 

overruled in part Rudick Engineering’s preliminary objections. Specifically, 

the trial court: sustained the objection to strike the demands for punitive 

damages against Rudick Engineering; sustained the objection to strike Count 

10 (noting that Appellants’ professional liability claim was dismissed with 

prejudice); and, overruled the demurrer to the breach of contract claim. Id.

____________________________________________

4 The trial court’s opinion and order was time-stamped by the McKean 

County Prothonotary and Clerk of Courts on May 24, 2011. However, on the 

trial court’s order, the prothonotary wrote that notice of the docketing was 

sent to the parties on May 25, 2011. Thus, the order was entered on May 

25, 2011. Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1120 

(Pa. Super. 2004) (“an order is ‘entered’ when it has been docketed and 

notice of the docketing has been given to the parties”).

 

5 Appellants agreed that Count 6 should be dismissed and “stipulate[d] that 

their jury trial demand [did] not extend to their [Count 5 (bad faith)] claim.” 

Appellants’ Answer to Erie Insurance’s Preliminary Objections, 12/17/10, at 

¶¶ 19 and 33.
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As can be discerned from the above, the trial court’s May 25, 2011 

order did not “dispose[] of all claims and of all parties” and, thus, the order 

was not final and appealable. See Pa.R.A.P. 341(a) and (b)(1). Indeed, 

Appellants still had viable claims against all parties to the litigation. 

Appellants, however, desired to immediately appeal the May 25, 2011 order. 

Therefore, on June 15, 2011, Appellants filed with the trial court an 

“Application for Determination of Finality of Order in Accordance with 

Pa.R.A.P. 341(c)” (hereinafter “Appellants’ Application for Determination of 

Finality”). Relying upon Pennsylvania Rule of Appellate Procedure 341(c), 

Appellants requested that the trial court amend its May 25, 2011 order and 

make an “express determination that an immediate appeal would facilitate 

resolution of the entire case.” Appellants’ Application for Determination of 

Finality, 6/15/11, at 3; Pa.R.A.P. 341(c). Pursuant to Pa.R.A.P. 341(c), such 

amendment would cause the order to become final and “appealable when 

entered.” Pa.R.A.P. 341(c). 

The trial court acceded to Appellants’ request and, in an order dated 

June 24, 2011, the trial court amended its May 25, 2011 order to declare: 

“[t]his is a [f]inal [o]rder because the [c]ourt expressly determines that an 
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immediate appeal would facilitate the resolution of the entire case.” Trial 

Court Order, 6/27/11, at 1.6 

Appellants filed a timely notice of appeal and Appellants raised the 

following claims to this Court:7

1. Does the “gist of the action” doctrine bar [Appellants’] 

recovery on their negligence claim against Erie Insurance . . 

. where that claim is not based on the insurance contract 

itself, but rather, upon independent affirmative acts and 

omissions by the [i]nsurer and its expert agent/contractor 

in summarily dismissing, without analysis, that mold 

infestation at their home was not dangerous?

2. Where [Appellants] alleged wanton, willful and reckless 

conduct by representatives of Rudick [Engineering] . . . in 

summarily dismissing, without analysis, that the mold 

infestation at their home was not dangerous, was it error for 

the [t]rial [c]ourt to dismiss [Appellants’] punitive damage 

claim at the pleading stage?

3. Where [Pa.R.C.P. 1042.1 et seq.] requires only a patient 

or client of a negligent professional to file a certificate of 

merit, did the [t]rial [c]ourt improperly dismiss [Appellants’] 

professional negligence claim against Rudick [Engineering] 

under circumstances in which [Appellants] were neither 

patients nor clients of Rudick [Engineering], but rather 

____________________________________________

6

Pa.R.A.P. 341(c) demands that the trial court “act” on an application for a 

determination of finality “within 30 days of entry of the order.” Pa.R.A.P. 

341(c)(1). As this Court has explained, the trial court entered its original 

order on May 25, 2011. See supra n.5. The trial court then “acted” on 

Appellants’ application for determination of finality – i.e. signed the amended 

order – on June 24, 2011. Since June 24, 2011 was the 30th day following 

entry of the original order, the trial court’s certification was timely.

7 The trial court ordered Appellants to file a concise statement of errors 

complained of on appeal, pursuant to Pennsylvania Rule of Appellate 

Procedure 1925(b). Appellants timely complied and preserved the four 

issues currently raised before this Court.
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third-party beneficiaries of a contract between Rudick 

[Engineering] and Erie [Insurance]?

4. Did the [t]rial [c]ourt abuse its discretion where it 

refused to grant leave of court for [Appellants] to amend 

their [c]omplaint to replead their punitive damage claim and 

to extend the time for filing their [c]ertificate of [m]erit 

against Rudick [Engineering], where the case was in the 

pleading stage, the requests were timely, no party would be 

prejudiced and [Appellants] reasonably believed that they 

were not required to file a [c]ertificate of [m]erit based on 

the plain language of the Rule?

Appellants’ Brief at 6-7. 

When the appeal first came before this Court, we affirmed the trial 

court’s order in part, vacated the order in part, and remanded the case. 

Specifically, we held: 1) that the trial court properly dismissed Appellants’ 

negligence claim against Erie Insurance because the gist of the action 

doctrine barred Appellants’ negligence claim; 2) that the trial court properly 

dismissed Appellants’ punitive damages claim against Rudick Engineering 

because Appellants did not plead sufficient facts to support an award of 

punitive damages; 3) that the trial court erred when it denied Appellants’ 

motion for leave to amend their complaint, to properly plead their 

entitlement to punitive damages; and, 4) that the trial court properly 

dismissed Appellants’ professional negligence claim against Rudick 

Engineering, as Appellants failed to file a certificate of merit. Bruno v. Erie 

Ins. Co., 55 A.3d 131 (Pa. Super. 2012) (unpublished memorandum) at 13-

29. 
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Following our decision, Appellants filed a petition for allowance of 

appeal with our Supreme Court, wherein they raised the following issues:

1. Does the “gist of the action” doctrine bar recovery on 

[Appellants’] negligence claim against Erie Insurance [] 

where their claim was not based on the underlying 

insurance contract or [Erie Insurance’s] obligations 

thereunder, but instead upon independent, affirmative, and 

gratuitous acts and omissions of [Erie Insurance] and its 

expert agent/ contractor when they summarily and without 

analysis or testing told Mr. Bruno that the mold infestation 

in the home was not dangerous and described the dangers 

of mold as a media exaggeration?

2. In promulgating Rule 1042.1 et seq. of the Pennsylvania 

Rules of Civil Procedure, did [the Pennsylvania Supreme 

Court], by the plain language used, require that only 

patients or clients of a negligent professional be obligated to 

file a Certificate of Merit, and was it therefore error for the 

Courts below to dismiss [Appellants’] professional 

negligence claim against [Rudick Engineering], because 

they were neither patients nor clients of [Rudick 

Engineering]?

See Bruno v. Erie Ins. Co., 74 A.3d 1027 (Pa. 2013).

Our Supreme Court granted Appellants’ petition for allowance of 

appeal and, in its opinion, the Supreme Court reversed this Court on both 

issues. First, the Supreme Court held “that [Appellants’] negligence claim 

was not barred by the gist of the action doctrine, as the claim was based on 

an alleged breach of a social duty imposed by the law of torts, and not a 

breach of a duty created by the underlying contract of insurance.” Bruno v. 

Erie Ins. Co., 106 A.3d 48, 50-51 (Pa. 2014). In arriving at this conclusion, 

our Supreme Court reasoned:
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The homeowners’ policy required Erie [Insurance] to pay up 

to $5,000 to [Appellants], when their home sustained a 

direct physical loss as the result of mold, for the cost of: 

(1) removing the mold, including tearing out or replacing 

parts of the property in order to gain access to the mold; 

(2) testing the air inside the property, or the property itself, 

to confirm the presence of mold; and (3) any increased 

expenses incurred by [Appellants] to maintain their 

standard of living, if the subject property was rendered 

uninhabitable by the mold. [Appellants’] claim against Erie 

[Insurance] for its alleged actions at issue in this appeal, 

quite simply, is not based on [Erie Insurance’s] violation of 

any of these contractual commitments. [Appellants] do not 

allege that Erie [Insurance] failed to pay the $5,000 it was 

obliged to pay by the policy for the costs of testing and 

remediation of damage to the property, and, indeed, the 

parties agree that Erie [Insurance] did, in fact, pay 

[Appellants] the $5,000 it owed under the policy for these 

purposes.

Instead, [Appellants’] claim against Erie [Insurance] is 

predicated on the allegedly negligent actions taken by its 

agents on behalf of Erie [Insurance] while they were 

performing [Erie Insurance’s] contractual obligation to 

investigate the claim made by [Appellants] under their 

policy in order to determine if the mold discovery triggered 

any of [Erie Insurance’s] aforementioned payment 

obligations. Specifically, as recounted supra, [Appellants] 

asserted in their complaint that [Erie Insurance’s] agents, 

while conducting the claim investigation, were negligent for: 

rendering unfounded advice to [Appellants] that the mold 

was “harmless,” denying the potential for adverse human 

health consequences posed by [Appellants’] exposure to the 

mold; and telling them that they “should continue tearing 

out the existing paneling.” [Appellants] further aver that, 

because of this advice and recommendation, they 

proceeded with the removal of the basement paneling, 

which later led to them suffering health problems from the 

mold exposure, and their entire house being rendered 

uninhabitable such that it had to be destroyed.

Accordingly, while Erie [Insurance] had contractual 

obligations under its policy to investigate whether mold was 

present, and also to pay for all property damage caused by 
J-A05024-12

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mold, the substance of [Appellants’] allegations is not that it 

failed to meet these obligations; rather, it is that Erie 

[Insurance], during the course of fulfilling these obligations 

through the actions of its agents, acted in a negligent 

manner by making false assurances regarding the toxicity of 

the mold and affirmatively recommending to [Appellants]

that they continue their renovation efforts, which caused 

them to suffer physical harm because of their reasonable 

reliance on those assurances. Consequently, these 

allegations of negligence facially concern [Erie Insurance’s] 

alleged breach of a general social duty, not a breach of any 

duty created by the insurance policy itself. The policy in 

this instance merely served as the vehicle which established 

the relationship between [Appellants] and Erie [Insurance], 

during the existence of which Erie [Insurance] allegedly 

committed a tort.

Id. at 70-71 (internal citations omitted) (emphasis in original).

Further, with respect to Appellants’ second claim on appeal, the 

Supreme Court held that “[Appellants] were not required to obtain a 

certificate of merit in order to proceed with their negligence suit against the 

professional engineer, since they were not patients or clients of the 

engineering company which employed him.” Id. at 50-51. 

The Supreme Court thus reversed our order. However, the Supreme 

Court remanded the case to this Court, so that we could consider whether 

Appellants’ negligence claim against Erie Insurance is “otherwise legally 

cognizable.” Id. at 71. We conclude that, as pleaded in Appellants’ 
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complaint, Appellants’ negligence claim is cognizable under Sections 323 and 

324A of the Restatement (Second) of Torts.8

We have stated:

A preliminary objection in the nature of a demurrer is 

properly [sustained] where the contested pleading is legally 

insufficient. Preliminary objections in the nature of a 

demurrer require the court to resolve the issues solely on 

the basis of the pleadings; no testimony or other evidence 

outside of the complaint may be considered to dispose of 

the legal issues presented by the demurrer. All material 

facts set forth in the pleading and all inferences reasonably 

deducible therefrom must be admitted as true.

In determining whether the trial court properly sustained 

preliminary objections, the appellate court must examine 

the averments in the complaint, together with the 

documents and exhibits attached thereto, in order to 

evaluate the sufficiency of the facts averred. The impetus 

____________________________________________

8 Within Erie Insurance’s brief to this Court on remand, Erie Insurance notes 

that, in our original memorandum, we declared that Appellants’ claim was 

not independently cognizable under Section 323 of the Restatement 

(Second) of Torts. Erie Insurance’s Brief at 14; see also Bruno v. Erie 

Ins. Co., 55 A.3d 131 (Pa. Super. 2012) (unpublished memorandum) at 18. 

Our earlier ruling was based upon our conclusion that the claims pleaded in 

Appellants’ complaint were contractual in nature – and not tortious; 

therefore, the gist of the action doctrine subsumed Appellants’ negligence 

claims. Id. However, our Supreme Court later held that Appellants’ 

“negligence claim was not barred by the gist of the action doctrine, as the 

claim was based on an alleged breach of a social duty imposed by the law of 

torts, and not a breach of a duty created by the underlying contract of 

insurance.” Bruno, 106 A.3d at 50-51. Specifically, our Supreme Court 

held, Appellants’ complaint pleaded that “Erie [Insurance], during the course 

of fulfilling [its contractual] obligations through the actions of its agents, 

acted in a negligent manner by making false assurances regarding the 

toxicity of the mold and affirmatively recommending to [Appellants] that 

they continue their renovation efforts, which caused them to suffer physical 

harm because of their reasonable reliance on those assurances.” Id. at 70-

71. 
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of our inquiry is to determine the legal sufficiency of the 

complaint and whether the pleading would permit recovery 

if ultimately proven. This Court will reverse the trial court’s 

decision regarding preliminary objections only where there 

has been an error of law or abuse of discretion. When 

sustaining the [preliminary objections] will result in the 

denial of claim or a dismissal of suit, [the preliminary 

objections may be sustained] only where the case [is] free 

and clear of doubt.

Lugo v. Farmers Pride, Inc., 967 A.2d 963, 966 (Pa. Super. 2009) 

(internal citations, quotations, and corrections omitted).

Section 323 of the Restatement (Second) of Torts is entitled “negligent 

performance of undertaking to render services” and provides:

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as 

necessary for the protection of the other’s person or things, 

is subject to liability to the other for physical harm resulting 

from his failure to exercise reasonable care to perform his 

undertaking, if

(a) his failure to exercise such care increases the risk of 

such harm, or

(b) the harm is suffered because of the other’s reliance 

upon the undertaking.

Restatement (Second) of Torts § 323; see also DeJesus v. Liberty Mut. 

Ins. Co., 223 A.2d 849 (Pa. 1966) (adopting section 323 of the Restatement 

(Second) of Torts). As the comment to section 323 explains, 

Section [323] applies to any undertaking to render services 

to another which the defendant should recognize as 

necessary for the protection of the other’s person or things. 

It applies whether the harm to the other or his things 

results from the defendant’s negligent conduct in the 

manner of his performance of the undertaking, or from his 
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failure to exercise reasonable care to complete it or to 

protect the other when he discontinues it.

Restatement (Second) of Torts § 323 cmt.

Section 324A of the Second Restatement of Torts is entitled “liability to 

third person for negligent performance of undertaking;” it declares:

One who undertakes, gratuitously or for consideration, to 

render services to another which he should recognize as 

necessary for the protection of a third person or his things, 

is subject to liability to the third person for physical harm 

resulting from his failure to exercise reasonable care to 

protect his undertaking, if

(a) his failure to exercise reasonable care increases the 

risk of such harm, or

(b) he has undertaken to perform a duty owed by the 

other to the third person, or

(c) the harm is suffered because of reliance of the other 

or the third person upon the undertaking.

Restatement (Second) of Torts § 324A.

The comment to Section 324A explains that the rule “parallels the one 

stated in § 323, as to the liability of the actor to the one to whom he has 

undertaken to render services. [Section 324A] deals with the liability to 

third persons.” Restatement (Second) of Torts § 324A cmt.

As our Supreme Court ably summarized, Appellants’ complaint pleaded 

that:

Erie [Insurance], during the course of fulfilling [its 

contractual] obligations through the actions of its agents, 

acted in a negligent manner by making false assurances [to 

David Bruno] regarding the toxicity of the mold and 

affirmatively recommending to [Appellants] that they 
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continue their renovation efforts, which caused them to 

suffer physical harm because of their reasonable reliance on 

those assurances.

Bruno, 106 A.3d at 70-71.

As to David Bruno, the above allegations state a claim for negligence 

under Section 323 and, as to Angela Bruno, Anthony Gotti Bruno, and 

McKayla Marie Blake, the above allegations state a claim for negligence 

under Section 324A. Appellants’ complaint pleaded that (through its agent) 

Erie Insurance: voluntarily “undertook to render services to” David Bruno 

(since Erie Insurance voluntarily and affirmatively took on the duty to advise 

David Bruno “regarding the toxicity of the mold and affirmatively 

recommending to [Appellants] that they continue their renovation efforts”); 

Erie Insurance should have “recognize[d] [that the services were] necessary 

for the protection of” David Bruno and his family (since the advice was 

voluntarily rendered by individuals who were hired to analyze the 

homeowners’ mold, given to the layperson homeowners, and concerned an 

alleged toxic substance in their home); Erie Insurance allegedly failed to 

exercise reasonable care when it provided the advice; and, Appellants 

suffered physical harm as a result of Erie Insurance’s breach (in that Erie 

Insurance’s alleged “failure to exercise [reasonable] care increase[d] the risk 

of [Appellants’] harm” and “the harm [Appellants] suffered [was because of 

their] reliance upon [Erie Insurance’s] undertaking.” See Restatement 

(Second) of Torts §§ 323 and 324A(a) and (c).
J-A05024-12

- 20 -

Therefore, since Appellants’ negligence claim against Erie Insurance is 

“otherwise legally cognizable,” we vacate the trial court’s order and remand 

for further proceedings.9

Order vacated. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/22/2015

____________________________________________

9

In Bruno, our Supreme Court held that “[Appellants] were not required to 

obtain a certificate of merit in order to proceed with their negligence suit 

against the professional engineer, since they were not patients or clients of 

the engineering company which employed him.” Bruno, 106 A.3d at 51. 

Hence, we vacate the portion of the trial court’s order which dismissed 

Appellants’ professional negligence claim against Rudick Engineering. 

We further note that the parties did not appeal our earlier determinations: 

1) that the trial court properly dismissed Appellants’ punitive damages claim 

against Rudick Engineering because Appellants did not plead sufficient facts 

to support an award of punitive damages, but 2) that the trial court erred 

when it denied Appellants’ motion for leave to amend their complaint, to 

properly plead their entitlement to punitive damages. See Bruno v. Erie 

Ins. Co., 55 A.3d 131 (Pa. Super. 2012) (unpublished memorandum) at 13-

29. Thus, our earlier determinations remain undisturbed in the wake of our 

Supreme Court’s opinion in Bruno.