The Pennsylvania Supreme Court’s recent holding in Dittman v. University of Pittsburgh Medical Center, No. 43 WAP 2017, 2018 WL 6072199 (Nov. 21, 2018) made headlines in legal circles for its landmark ruling that an “employer owes employees a duty to exercise reasonable care to protect them against an unreasonable risk of harm in collecting and storing employees’ data on its computer systems,” confirming the existence of a duty of care in so-called “data breach” cases. What received less publicity was the second half of the Dittman opinion, where the court effectively merged Pennsylvania’s “economic loss doctrine” with Pennsylvania’s “gist of the action” doctrine.

Pennsylvania courts have long struggled with the question of whether and when a party to a contractual relationship can assert a tort cause of action against another contracting party for conduct arising out of the contractual relationship. Two separate doctrines emerged in Pennsylvania common law to attempt to answer this question.