Pennsylvania Court Rejects Request to Create Common Law Duty to Protect Sensitive Personal and Financial Information

by Ballard Spahr LLP

A Pennsylvania judge has dismissed a class action arising out of the breach of confidential employee information, adding to a growing body of state courts that have found that negligence claims alleging failure to provide reasonable data security for personal health and other information are not actionable.

Dittman v. UPMC arose out of a data breach of the University of Pittsburgh Medical Center's (UPMC) network, resulting in the theft of sensitive personal information for 62,000 employees, including birthdates, Social Security numbers, confidential tax information, addresses, salaries, and bank account information. Plaintiffs sought to recover damages associated with "imminent identity theft," including the cost of credit monitoring, asserting that UPMC had a common law duty to protect highly sensitive personal and financial information by designing, maintaining, and testing its security systems.

Allegheny County Court of Common Pleas Judge R. Stanton Wettick, Jr. rejected that argument, holding that Pennsylvania law did not recognize such a common law duty, which in the Court's view would need to be created by the state General Assembly. "The legislature is aware of and has considered the issues that plaintiffs want this court to consider. As of this date, the only legislation which the General Assembly has chosen to enact requires entities that suffer a breach of their security systems to provide notification," Judge Wettick wrote. "Furthermore, the legislature gives the Office of Attorney General exclusive authority to bring an action for violation of the notification requirement (i.e., no private actions are permitted)."

The Court also cited the economic loss doctrine, which precludes negligence claims for purely economic losses that do not involve bodily damage or property damage, as a basis for rejecting the plaintiffs' negligence claim.

Dittman is the latest in a line of cases rejecting class actions seeking economic damages arising out of data breaches. The balance of federal case law currently favors dismissal of such actions on the grounds that fear of identity theft is not a sufficient harm to trigger Article III standing. Most state courts examining the issue have found, like Judge Wettick, that there is no common law duty to provide adequate and reasonable data security.

The case, if anything, goes further than other state court decisions analyzing the wisdom of imposing a common law duty to protect sensitive personal information, noting the public policy implications if state courts were to permit such claims to go forward. In particular the Court expressed concern that a ruling in favor of the plaintiffs could result in hundreds of thousands of new lawsuits being filed in Pennsylvania. "Clearly, the judicial system is not equipped to handle this increased caseload of negligence actions," Judge Wettick said. "Courts will not adopt a proposed solution that will overwhelm Pennsylvania's judicial system" and would require defendant companies, victims themselves as the Court noted, to expend substantial resources to defend such claims.

Dittman also differs from other data breach class actions insofar as at least some of the plaintiffs alleged actual identify theft in the form of fraudulent income tax returns. Many courts that have rejected claims for damages arising out of data breaches have nonetheless permitted claims to go forward where the plaintiffs were able to demonstrate actual damages, rather than a speculative fear of identity theft.

Notwithstanding Dittman, the viability of future negligence claims stemming from the loss of sensitive personal information in connection with a data breach remains an open issue in many jurisdictions. The case does not address the viability of consumer fraud or breach of contract claims. Likewise, because the UPMC employment records disclosed in Dittman did not constitute "protected health information" under HIPAA, the Court sidestepped the question of whether HIPAA provides the standard of care for a common law negligence claim. While HIPAA does not provide a private cause of action for statutory violations, several state courts, including the Connecticut Supreme Court in Byrne v. Avery Center for Obstetrics and Gynecology, 2014 WK 5507439, Conn. Nov. 11, 2014, have rejected preemption arguments and allowed plaintiffs to use HIPAA to establish the standard of care in negligence claims.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.