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).



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