J-A13012-16
2017 PA Super 8
BARBARA A. DITTMAN, GARY R. IN THE SUPERIOR COURT OF
DOUGLAS, ALICE PASTIRIK, JOANN PENNSYLVANIA
DECOLATI, TINA SORRENTINO, KRISTEN
CUSHMAN AND SHANNON MOLYNEAUX,
INDIVIDUALLY AND ON BEHALF OF ALL
OTHERS SIMILARLY SITUATED
Appellants
v.
UPMC D/B/A THE UNIVERSITY OF
PITTSBURGH MEDICAL CENTER, AND
UPMC MCKEESPORT
Appellees No. 971 WDA 2015
Appeal from the Order Entered May 28, 2015
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD14-003285
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
CONCURRING STATEMENT BY STABILE, J.: FILED JANUARY 12, 2017
I join the Majority’s opinion today, but write merely to express my
view that in this constantly developing area of law and technology we must
proceed to establish precedent slowly and with caution. Today’s decision
should stand for no more than the conclusion that a legal duty was not found
to exist under the facts as pled in this case. As the Majority notes, the
Appellants failed to make allegations of specific threats and problems with
UPMC’s computer system to alter the finding of no duty in this case. See
Maj. Op. at 8 n.4 (citing In re: The Home Depot, Inc. Customer Data
Security Breach Litigation, 2016 WL 2897520 (N.D. Ga., May 18, 2016)).
J-A13012-16
Had UPMC been on notice of actual or potential security breaches of its
systems, or reasonably should have anticipated that the negligent handling
of confidential information would have left it vulnerable to criminal activity,1
a different conclusion may have been reached under the factors of the
Althaus2 test.
I also agree under the second factor of the Althaus test that there is
significant social utility in companies like UPMC being able to store
information electronically. The entire world is moving towards electronic
storage of information. With this will come a greater awareness of what is
reasonable in terms of the care and storage of confidential information. At
some point, the balance of weighing social utility in favor of data storage
entities may shift more in favor of persons like Appellants. When harm
becomes foreseeable under circumstances that commonly are understood to
render storage vulnerable, the fourth Althaus factor may weigh in favor of
imposing additional duties upon an actor even absent legislative action. As
for the fifth and final factor under the Althaus test (the overall public
interest), I believe that this factor too may shift as the foreseeability of harm
changes with the evolution and increased use of this technology.
Judge Olson joins this Concurring Statement.
____________________________________________
1
As the Majority notes, citing Mahon v. Am-Guard, Inc., 841 A.2d 1052,
1060-1061 (Pa. Super. 2003).
2
Althaus v. Cohen, 756 A.2d 1166 (Pa. 2000).
-2-
Dittman, B. v. UPMC
Combined Opinion