J-S04001-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TIMOTHY YANKA AND POLLY W. 

NESSA, H/W

v.

LEITHBRIDGE CO. D/B/A KURFISSSOTHEBY'S INTERNATIONAL REALTY 

AND DELAWARE RIVER CLOSING 

SERVICES, INC.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 839 EDA 2021

Appeal from the Order Entered March 24, 2021

In the Court of Common Pleas of Bucks County Civil Division at No(s): 

2018-003406-0000

BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 22, 2022

Appellants, Timothy Yanka and Polly W. Nessa, husband and wife, 

appeal from the trial court’s March 24, 2021 orders denying summary 

judgment in their favor and granting summary judgment in favor of Appellees, 

Leithbridge Co. d/b/a Kurfiss-Sotheby’s International Realty (“KSIR”), and 

Delaware River Closing Services, Inc (“DRCS”). We affirm. 

Background

The trial court summarized the background of this matter as follows:

I. PROCEDURAL HISTORY

On September 5, 2018, [Appellants] filed an Amended Complaint. 

On March 7, 2019, [KSIR] filed an Answer to [Appellants’] 

Amended Complaint and a Crossclaim against [DRCS]. On March 

8, 2019, [DRCS] filed an Answer and New Matter to [Appellants’] 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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Amended Complaint and a Crossclaim against [KSIR]. On 

September 23, 2019, [Appellants] filed an Answer to [DRCS’s] 

New Matter. On January 22, 2019, the [c]ourt sustained 

[Appellees’] Preliminary Objections and dismissed Counts II 

through IV from [Appellants’] Amended Complaint.[1] Thus, 

[Appellants’] only surviving claim against [Appellees] was Count I 

– Negligent Failure to Safeguard Personal and Confidential 

Information.

On December 23, 2020, [KSIR] filed a Motion for Summary 

Judgment. On December 31, 2020, [DRCS] also filed a Motion for 

Summary Judgment. On February 2, 2021, [Appellants] filed a 

Response and their own Motion for Summary Judgment. 

II. FACTUAL BACKGROUND 

In 2017, [Appellants] contracted [KSIR] to help find and purchase 

a residential property. Nancy Bousum..., an employee of [KSIR], 

served as [Appellants’] real estate agent. [Appellants] eventually 

found a residential property they wanted to purchase and 

scheduled a closing date. [KSIR] instructed [Appellants] that 

[DRCS] would provide intermediary services to properly close on 

the property. 

The closing date was set forth for November 15, 2017[,] at 

[DRCS’s] office. On November 8, 2017, [Appellants] received an 

email from a Dorle Friedman asking [Appellants] to electronically 

transfer $390,343.61 to an alleged [DRCS] trust account prior to 

the closing date. [Appellants], believing the email was sent by 

[DRCS] at the direction of [KSIR], transferred the funds into the 

account. At the closing, [Appellants] discovered the email was 

not sent by either [DRCS] or [KSIR]. [Appellants] would later 

discover the email soliciting the transfer of funds was sent by an 

unknown criminal actor purporting to be [DRCS]. The unknown 

criminal actor successfully induced [Appellants] to transfer 

$390,343.61 into the criminal actor’s bank account. [Appellants] 

were able to recover close to $73,000.00 of the lost funds with 

the help of the Federal Bureau of Investigation (“FBI”). 

[Appellants] brought this negligence action against [KSIR] and 

[DRCS] alleging they failed to properly secure [Appellants’] 

____________________________________________

1 Appellants raised claims against Appellees for negligent failure to warn in 

Count II, negligence (failure to investigate) in Count III, and unfair and 

deceptive trade practices in Count IV. 
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“confidential personal and transactional information[.]” The sole 

confidential personal information allegedly compromised was 

[Appellants’] email address. [Appellants] claimed [Appellees’] 

lack of cybersecurity caused [Appellants] to transfer the funds to 

the unknown criminal actor. As a result, [Appellants] sought 

damages totaling $317,362.50[,] based on their allegations of 

negligence. 

Trial Court Opinion (TCO), 6/17/21, at 1-3 (footnotes and internal citations 

omitted). 

On March 24, 2021, the trial court — in three separate orders — granted 

DRCS’s motion for summary judgment, granted KSIR’s motion for summary 

judgment, and denied Appellants’ motion for summary judgment. The trial 

court’s orders did not provide any rationale for its rulings. On April 23, 2021, 

Appellants filed a single, timely notice of appeal, purporting to appeal “from 

the orders granting and denying cross-motions for summary judgment 

entered in this matter on March 24, 2021.” Notice of Appeal, 4/23/21, at 1 

(unnumbered pages). 

On May 4, 2021, the trial court entered the following order directing 

Appellants to file a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b):

[P]ursuant to Pennsylvania Rule of Appellate Procedure 1925(b), 

Appellant[s are] DIRECTED to file of record a Concise Statement 

of Errors Complained of on Appeal within twenty-one (21) days 

from the filing date of this Order. Appellant[s] shall file such 

Statement of Errors Complained of on Appeal and shall 

concurrently serve the undersigned in person or by mail as 

provided in Pa.R.A.P. 121(a). Service on parties shall be 

concurrent with filing and shall be by any means of service 

specified under Pa.R.A.P. 121(c). It is further ordered that 

Appellant[s] shall file a formal request for a transcript of all 

testimony and pay the cost thereof, pursuant to Pa.R.A.P. 1911. 
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Any issue not properly included in the statement timely filed and 

served pursuant to Rule 1925(b) shall be deemed waived.

Pa.R.A.P. 1925(b) Order, 5/4/21, at 1 (unnumbered pages; emphasis and 

capitalization in original). 

According to the trial court, and as reflected on the trial court’s docket, 

Appellants failed to file their concise statement in the trial court. TCO at 3. 

Notwithstanding, the trial court noted that Appellants mailed to its chambers 

a “broad” concise statement that “failed to specify the errors complained of 

on appeal....” Id. Further, our own review of the appellate court docket 

reveals that Appellants timely filed their concise statement with this Court —

instead of with the trial court — on May 24, 2021.2 The trial court issued a 

Rule 1925(a) opinion on June 17, 2021, in which it “generally address[ed] the 

[c]ourt’s decisions for the three Motions for Summary Judgment.” Id.

Appellants’ Notice of Appeal and Rule 1925(b) Statement

Before reaching the questions Appellants raise on appeal, we must 

initially address: (1) the propriety of Appellants’ filing one notice of appeal 

____________________________________________

2 Accord Appellants’ Reply Brief at 6 (“[C]ounsel encountered difficulty in 

deciding whether the requirement of Rule 1925(b) to file the appellant’s 

statement of errors ‘of record’ refers to filing in the trial court or the appellate 

court. The text of the rule states that the filing is to be in the trial court, but 

the rule also specifies that the filing shall be made ‘in accordance with 

[Pa.]R.A.P. 121[,’] which calls for filing in the appellate court. Counsel decided 

that Rule 1925(b) required the statement of errors to be filed in the appellate 

court, because the record in the trial court was already closed when the 

[n]otice of [a]ppeal was filed, and because there was a separate provision for 

serving the statement of errors upon the trial judge (which was done). The 

statement of errors was filed in the appellate court and was not rejected, and 

apparently the document was not sent by the Superior Court prothonotary to 

the Bucks County prothonotary.”).
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from multiple orders; (2) whether Appellants have waived their issues on 

appeal by filing their Rule 1925(b) statement in this Court, instead of in the 

trial court; and (3) if Appellants’ broadly-worded Rule 1925(b) statement 

results in waiver of any of their issues. 

First, we assess the propriety of Appellants’ notice of appeal. As 

mentioned supra, Appellants filed a single notice of appeal purporting to 

appeal from three separate orders, in which the trial court, respectively, 

granted KSIR’s motion for summary judgment, granted DRCS’s motion for 

summary judgment, and denied Appellants’ motion for summary judgment. 

Our Supreme Court has stated that, “in the circumstance where each of the 

defendants in a single action is dismissed prior to trial, an appeal from the 

order dismissing the remaining claim or party is sufficient to bring for review 

the earlier issued orders.” K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003) 

(citation omitted); see also Pa.R.A.P. 341(b) (defining a final order as, inter 

alia, disposing of all claims and of all parties); Fulano v. Fanjul Corp., 236 

A.3d 1, 8 (Pa. Super. 2020) (rejecting the defendants’ argument that the 

plaintiffs’ appeal should be quashed because they did not file notices of appeal 

from the separate orders sustaining the defendants’ preliminary objections). 

Thus, we conclude that Appellants did not need to file a separate notice of
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appeal from each order. Their single notice of appeal was sufficient to bring 

for review all three of the trial court’s orders.3 

Second, with respect to the consequences of Appellants’ filing their 

concise statement in the wrong court, we recently addressed this issue in 

Reverse Mortgage Funding, LLC v. Russo, 241 A.3d 364, 2020 WL 

5890760 (Pa. Super. filed Oct. 5, 2020) (unpublished, non-precedential 

memorandum).4 In that case, the trial court ordered the appellant to “file of 

record” a concise statement “pursuant to the Pennsylvania Rules of Appellate 

Procedure.” Id. at *3. The appellant subsequently filed his concise statement 

in this Court, and not the trial court. Although we determined that the trial 

court’s order complied with the requirements of Rule 1925(b), we nevertheless 

concluded that “[the a]ppellant’s filing in this Court is a filing ‘of record’ and 

documented that the statement was timely filed[,]” and that “[a] filing in the 

wrong court is to be transferred to the proper court, not disregarded.” Id.

____________________________________________

3 Even if Appellants should have filed a separate notice of appeal from each 

summary judgment order, we note that the “[f]ailure of an appellant to take 

any step other than the timely filing of a notice of appeal does not affect the 

validity of the appeal, but it is subject to such action as the appellate court 

deems appropriate, which may include, but is not limited to, remand of the 

matter to the lower court so that the omitted procedural step may be taken.” 

See Pa.R.A.P. 902; see also Commonwealth v. Young, 265 A.3d 462, 477 

(Pa. 2021) (discussing Rule 902’s “preference for correcting procedurally 

defective, albeit timely, notices of appeal so that appellate courts may reach 

the merits of timely appeals”). 

4 See Pa.R.A.P. 126(b) (providing that unpublished, non-precedential 

memorandum decisions of the Superior Court filed after May 1, 2019, may be 

cited for their persuasive value). 
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(citing Pa.R.A.P. 751, 905(a)(4)). Similarly, here, Appellants timely filed their 

concise statement in this Court. Though they filed the concise statement in 

the wrong court, we will not find waiver on this basis. 

Third and finally, we must consider whether Appellants have waived 

their issues due to their “broad” concise statement that “failed to specify the 

errors complained of on appeal....” See TCO at 3. Appellants’ concise 

statement consists of the following:

This Concise Statement of Errors Complained of on Appeal is 

submitted on behalf of [Appellants], pursuant to the Order of [the 

trial court] in this matter o[n] May [4], 2021. 

The trial court has at no time given any information whatsoever 

as to its findings of fact and conclusions of law regarding orders 

granting and denying cross-motions for summary judgment 

entered in this matter on March 24, 2021, from which this appeal 

is taken. Those orders were entered without even the most 

rudimentary opinion as to the substance of the [c]ourt’s rulings, 

and no such opinion has since been filed. This procedure does not 

comport with Pa.R.A.P. 1925(a)(1), which requires that the trial 

court give “at least a brief opinion of the reasons[...]”:

[T]he judge who entered the order giving rise to the notice 

of appeal, if the reasons for the order do not already appear 

of record, shall [...] file of record at least a brief opinion of 

the reasons for the order, or for the rulings or other errors 

complained of, or shall specify in writing the place in the 

record where such reasons may be found.

Accordingly, the [c]ourt’s [o]rder dated March 3, 2021 is literally 

not susceptible of compliance, at least not until such time as the 

[c]ourt sheds some light upon the reasons for its rulings.

[A]ppellants do not waive any of their rights to file a Statement of 

Errors Complained of on Appeal at such time as the requisite 

preconditions are satisfied. [A]ppellants incorporate herein by 

reference all the pleadings, briefs and moving papers submitted 

by them and [Appellees] in support of [A]ppellants[’] contention 

that the trial court came to wrong conclusions in this matter.
J-S04001-22

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Appellants’ Rule 1925(b) Statement, 5/24/21, at 1-2 (unnumbered pages; 

some brackets added). 

Regarding Rule 1925(b) statements, this Court has explained:

“The [Rule 1925(b)] Statement shall concisely identify each error 

that the appellant intends to assert with sufficient detail to identify 

the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). 

“[T]he [Rule] 1925(b) statement must be sufficiently ‘concise’ and 

‘coherent’ such that the trial court judge may be able to identify 

the issues to be raised on appeal, and the circumstances must not 

suggest the existence of bad faith.” Commonwealth v. 

Vurimindi, 200 A.3d 1031, 1038 (Pa. Super. 2018). “[A] Rule 

1925(b) statement is a crucial component of the appellate process 

because it allows the trial court to identify and focus on those 

issues the party plans to raise on appeal.” Id. (citing Riley v. 

Foley, 783 A.2d 807, 813 (Pa. Super. 2001)). “[W]hen issues are 

too vague for the trial court to identify and address, that is the 

functional equivalent of no concise statement at all.”

Commonwealth v. Smith, 955 A.2d 391, 393 (Pa. Super. 2008) 

(citing Commonwealth v. Dowling, 778 A.2d 683, 686 (Pa. 

Super. 2001)). “When the trial court has to guess what issues an 

appellant is appealing, that is not enough for meaningful review.”

Commonwealth v. Lemon, 804 A.2d 34, 37 (Pa. Super. 2002) 

(citing Dowling, 778 A.2d at 686).

Fulano, 236 A.3d at 9. 

At the same time, though, we have also recognized that:

When the reasons for a trial court’s ruling are vague or not 

discernable from the record, then an appellant may be 

forced to file a vague Rule 1925(b) statement, and it would 

be unjust to consider such filing a violation of the Rule. Just 

as the trial judge cannot be made to guess what an 

appellant is complaining of on appeal, an appellant cannot 

be made to guess what the trial judge is thinking in his or 

her ruling. Therefore, under these limited circumstances 

where the appellant is unable to ascertain the trial court’s 

rationale for the ruling under appeal, it is not appropriate to 

find waiver or to dismiss the appeal based on a vague Rule 

1925(b) statement.
J-S04001-22

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Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803-04 (Pa. Super. 

2007) (internal citations and quotation marks omitted).

However, “[i]f the appellant in a civil case cannot readily discern 

the basis for the judge’s decision, the appellant shall preface the 

Statement with an explanation as to why the Statement has 

identified the errors in only general terms. In such a case, the 

generality of the Statement will not be grounds for finding waiver.” 

Pa.R.A.P. 1925(b)(4)(vi).

Fulano, 236 A.3d at 9-10 (emphasis in original). 

Here, we agree with Appellants that the trial court’s March 24, 2021 

orders disposing of the parties’ summary judgment motions did not set forth 

any reasons for its rulings.5 Consequently, pursuant to Rule 1925(b)(4)(vi), 

Appellants’ Rule 1925(b) statement sufficiently conveyed, in general terms, 

that it was challenging the trial court’s rulings with respect to the summary 

judgment motions. See Pa.R.A.P. 1925(b)(4)(vi) (“If the appellant in a civil 

case cannot readily discern the basis for the judge’s decision, the appellant 

shall preface the Statement with an explanation as to why the Statement has 

identified the errors in only general terms. In such a case, the generality of 

the Statement will not be grounds for finding waiver.”); Appellants’ Rule 

1925(b) Statement at 1 (“The trial court has at no time given any information 

whatsoever as to its findings of fact and conclusions of law regarding orders 

____________________________________________

5 We point out to Appellants that, under Rule 1925(a)(1), the trial court did 

not have to give the reasons for its rulings in the summary judgment orders 

themselves; instead, under Rule 1925(a)(1), “upon receipt of the notice of 

appeal, the judge who entered the order giving rise to the notice of appeal, 

if the reasons for the order do not already appear of record, shall within 

the period set forth in Pa.R.A.P. 1931(a)(1) file of record at least a brief 

opinion of the reasons for the order, or for the rulings or other errors 

complained of, or shall specify in writing the place in the record where such 

reasons may be found.” Pa.R.A.P. 1925(a)(1) (emphasis added). 
J-S04001-22

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granting and denying cross-motions for summary judgment entered in this 

matter on March 24, 2021, from which this appeal is taken.”).6 Accordingly, 

as Appellants referenced the summary judgment orders in their Rule 1925(b) 

statement and justifiably claimed that they could not determine the reasons 

for the trial court’s rulings relating to those particular orders, we will not find 

that Appellants waived any errors relating to the trial court’s disposition of the 

summary judgment motions based on the generality of their Rule 1925(b) 

statement. However, to the extent that Appellants challenge any other order 

or ruling issued by the trial court outside of summary judgment, we deem 

such issues waived for failure to identify any such errors, even in general 

terms, in their Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vi), supra. 

Issues 

With those preliminary matters addressed, we now proceed to the 

merits of Appellants’ appeal. Appellants present the following issues for our 

review:

[1]. Whether the trial court should have permitted [Appellants] to 

amend so as to reinstate their claim (which had been dismissed 

on preliminary objections) against both [Appellees] for negligence 

for failure to warn them of the dangers of wire transfer fraud and 

failure to instruct them [on] how to carry out a wire transfer 

safely[?] 

[2]. Whether the trial court should have granted summary 

judgment in favor of [Appellants] on their amended claim for 

____________________________________________

6 We note that, although Appellants’ Rule 1925(b) statement was not specific, 

the trial court nevertheless discerned that Appellants were challenging its 

decisions on the motions for summary judgment, and it discussed the reasons 

for its summary judgment orders in its Rule 1925(a) opinion. 
J-S04001-22

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failure to warn them of the dangers of wire transfer fraud and 

failure to advise them [on] how to carry out a wire transfer with 

safety, when the cause of action was articulated by the top 

executives of [KSIR] and [DRCS] and adopted by them as a 

standard to which their companies should adhere; and when their 

failure to follow through on this resolution was exacerbated by 

other instances of negligence; and when the facts of record 

reflecting these occurrences were clearly admissible and were not 

disputed by [KSIR] and [DRCS]?

[3]. Whether the trial court should have granted summary 

judgment, where there was an evident disagreement about the 

facts of the case and the legal basis of the claims and defenses[?]

[4]. Whether the trial court should have granted summary 

judgment in favor of [KSIR] and [DRCS], when the paradigm they 

sought to prove (referred to by the trial court in a footnote to its 

order of 1/22/2019 granting and denying preliminary objections 

to the Amended Complaint) was subsequently disavowed by the 

trial court as inappropriate as a paradigm and inapplicable to the 

case at bar?

Appellants’ Brief at 3-5.7 

While Appellants raise four issues in their statement of the questions 

involved, they do not divide the argument section of their brief into four 

corresponding parts. We admonish Appellants for their lack of compliance 

with Pa.R.A.P. 2119(a). See Pa.R.A.P. 2119(a) (“The argument shall be 

divided into as many parts as there are questions to be argued; and shall have 

at the head of each part—in distinctive type or in type distinctively displayed—

the particular point treated therein, followed by such discussion and citation 

of authorities as are deemed pertinent.”); Donaldson v. Davidson Bros., 

Inc., 144 A.3d 93, 99 n.9 (Pa. Super. 2016) (determining that the appellant 

failed to comply with Rule 2119(a) where the appellant’s brief did not “present 

____________________________________________

7 We have re-ordered Appellants’ issues for ease of disposition. 
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and develop eight arguments in support of the eight questions raised”). While

Appellants’ noncompliance with Rule 2119(a) makes our review more difficult 

to conduct, it does not totally preclude it. Therefore, we address their issues 

to the extent we can discern their arguments. 

Analysis 

Issues 1 and 2

In Appellants’ first and second issues, they argue that the trial court 

should have reinstated their failure-to-warn claim — which had been 

previously dismissed on preliminary objections — and that the trial court 

should have granted summary judgment in their favor based on this claim. 

See Appellants’ Brief at 4-5. These issues are waived. 

As set forth supra, Appellants did not identify any errors in their Rule 

1925(b) statement aside from the trial court’s rulings on the summary 

judgment motions.

8

In other words, they made no mention of their failureto-warn claim in their Rule 1925(b) statement.

9

 Accordingly, we deem waived 

any arguments concerning their failure-to-warn claim. See Pa.R.A.P. 

____________________________________________

8 Appellants claim that they “argued with clarity in their summary judment 

[sic] motion their request to reinstate the failure[-]to[-]warn claim, but 

despite repetition of this request in their reply brief (R. 354a-356a) and 

citation of the evidence adduced in discovery, the trial court did not address 

the claim other than to state that it had been dismissed on preliminary 

objections.” Appellants’ Brief at 15-16. The record belies this assertion; the 

pages of the reproduced record that Appellants refer to in support do not 

contain a request to reinstate the failure-to-warn claim. Accord KSIR’s Brief 

at 11; DRCS’s Brief at 25. 

9 The trial court also did not consider Appellants’ failure-to-warn claim in its 

Rule 1925(a) opinion. 
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1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.”); 

Pa.R.A.P 1925(b) Order at 1 (warning that “[a]ny issue not properly included 

in the statement timely filed and served pursuant to Rule 1925(b) shall be 

deemed waived”) (unnumbered page); see also Greater Erie Indus. Dev. 

Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) 

(en banc) (“[I]n determining whether an appellant has waived his issues on 

appeal based on non-compliance with [Rule] 1925, it is the trial court’s order 

that triggers an appellant’s obligation[. T]herefore, we look first to the 

language of that order.”) (citations omitted; some brackets added). No relief 

is due on these claims. 

Issues 3 and 4

We next address Appellants’ third and fourth issues together. Therein, 

they contest the trial court’s entry of summary judgment in favor of KSIR and 

DRCS. See Appellants’ Brief at 3-4. It is well-established that: 

[S]ummary judgment is appropriate only in those cases where the 

record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as 

a matter of law. When considering a motion for summary 

judgment, the trial court must take all facts of record and 

reasonable inferences therefrom in a light most favorable to the 

non-moving party. In so doing, the trial court must resolve all 

doubts as to the existence of a genuine issue of material fact 

against the moving party, and, thus, may only grant summary 

judgment where the right to such judgment is clear and free from 

all doubt. On appellate review, then,

an appellate court may reverse a grant of summary 

judgment if there has been an error of law or an abuse of 

discretion. But the issue as to whether there are no genuine 
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issues as to any material fact presents a question of law, 

and therefore, on that question our standard of review is de 

novo. This means we need not defer to the determinations 

made by the lower tribunals.

To the extent that this Court must resolve a question of law, we 

shall review the grant of summary judgment in the context of the 

entire record. 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (cleaned 

up). 

Here, in denying Appellants’ motion for summary judgment and granting 

summary judgment in favor of KSIR and DRCS, the trial court opined:

Pennsylvania common law requires a plaintiff to prove the 

following elements to succeed in a negligence claim: “(1) the 

defendant owed a duty to the plaintiff; (2) the defendant breached 

that duty; (3) a causal relationship between the breach and the 

resulting injury suffered by the plaintiff; and (4) actual loss 

suffered by the plaintiff.” Furthermore, this case proceeds under 

a theory the Supreme Court recently recognized in Dittman v. 

UPMC, 196 A.3d 1036 ... (Pa. 2018), for negligent collection and 

storage of personal information.

In Dittman, the plaintiffs were employees of the 

defendant/employer University of Pittsburgh Medical Center 

(“UPMC”). UPMC required its employees to provide it with 

sensitive personal information as part of their employment. This 

sensitive personal information included: social security numbers; 

tax information; birthdates; full names; home addresses; and 

personal bank account information. UPMC’s computer network 

was subsequently hacked and most of the employees’ sensitive 

personal information was compromised. The employees alleged 

their stolen personal information was used to file fraudulent tax 

returns. Ultimately, the Supreme Court of Pennsylvania held that 

an employer may be liable for negligence when the employer 

actively requests sensitive personal information from its 

employees and fails to collect and store that personal data with 

reasonable care. 

***
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1. The March [24], 2021 Order Denying [Appellants’] 

Motion for Summary Judgment[]

In viewing the record in the light most favorable to [Appellees] as 

the nonmoving parties, [Appellants] failed to provide sufficient 

evidence to show they were entitled to summary judgment in their 

favor. [Appellants’] only surviving count was their negligence 

claim against [Appellees]. [Appellants] argued [Appellees] were 

liable for the fraudulent transaction pursuant to the negligence 

theory recently recognized by the Supreme Court in Dittman. 

However, upon considering the evidence in the record and 

applying the Supreme Court’s reasoning to this case, it is clear 

that [Appellants’] claim must fail. In Dittman, the Supreme Court 

held an employer has a duty to use reasonable care in collecting 

and storing its employees’ sensitive personal information[,]

including social security numbers and bank account numbers[,]

when an employer actively requests the information from its 

employees. Significantly, the Supreme Court limited its decision 

to cases involving employers and employees. 

In this case, [Appellants] provided no evidence to show either 

[Appellee] actively requested any sensitive private financial 

information from [Appellants]. Nothing in the record showed 

[Appellees] requested [Appellants’] tax information, social 

security numbers[,] or other sensitive personal information. 

Critically, neither [Appellants] nor [Appellees] alleged the 

existence of an employer/employee relationship. Nothing in the 

record supported even an inference of the existence of an 

employer/employee relationship. Although the [c]ourt could 

foresee other relationships — in addition to an 

employer/employee relationship — where the precedent 

established in Dittman may apply, there is no Pennsylvania 

statutory or precedential law supporting [Appellants’] claim of 

negligence against [Appellees]. Following careful deliberation and 

consideration of the record, the [c]ourt found [Appellants’] claim 

for negligent collection and storage of personal information 

consisting of an email address failed as a matter of law. 

Even assuming, arguendo, [Appellants’] claim against [Appellees] 

was properly raised under Dittman, [Appellants] failed to provide 

sufficient evidence to show they were entitled to summary 

judgment. First, [Appellants] provided no evidence to show 

[Appellees] owed them a duty of care to safeguard their email 

address from all potential threats. [Appellants] argued their 

allegedly compromised email address was sensitive personal 
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information similar to the information at issue in Dittman. This 

[c]ourt disagrees. As previously stated, the “sensitive personal 

information” at issue in Dittman compromised a totality of 

sensitive personal information which included: social security 

numbers; tax information; birthdates; full names; home 

addresses; and personal bank account information. Conversely, 

[Appellants’] private information allegedly compromised in this 

case included [Appellants’] email address. The [c]ourt finds this 

a significant distinction because an email address alone does not 

contain the same amount of private data as does the totality of 

the private sensitive information compromised in Dittman. 

Additionally, [Appellants] failed to provide any controlling law 

holding a personal email address constitutes sensitive personal 

information. Rather, a personal email address is quasi-public 

information to the extent it is used by the owner of the address 

communicating with various other persons and entities on the 

internet. Thus, the [c]ourt finds the evidence in the record placed 

this matter well outside the scope of Dittman. 

[Appellants] also failed to provide any evidence showing 

[Appellees] breached a duty of care or that [Appellees] caused the 

fraudulent transaction. Although there was evidence showing a 

criminal actor emailed [Appellants] purporting to be an agent of 

[DRCS], [Appellants] failed to identify any evidence in the record 

which showed [Appellees] were in any way responsible for the 

criminal actor[’s] ultimately obtaining [Appellants’] email address. 

[Appellants] heavily relied on an FBI letter as evidence of 

[Appellees’] negligence. In the letter, the FBI stated [Appellants] 

fell victim to a fraudulent transaction with an unknown criminal 

actor. In addition, the FBI stated the fraudulent transaction was 

likely caused by a comprised business email account.

Based largely on this letter, [Appellants] made a version of a res 

ipsa loquitor argument in which they alleged the fraudulent 

transaction itself was prima facie evidence of [Appellees’] 

negligence. However, the FBI did not name either [Appellee] as 

a culpable party for the fraudulent transaction or compromised 

email account. In fact, the FBI did not even state whose email 

address was compromised. [Appellants] unquestionably provided 

evidence to show they were victims of a fraudulent scheme and 

transaction[,] yet failed to provide any evidence to show either 

[Appellee] was in any way the cause of the fraudulent transaction 

or owed a legal duty under Pennsylvania law with respect to their 

email addresses. 
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Ultimately, [Appellants’] Motion for Summary Judgment was 

largely based on bald assertions, accusations[,] and implications. 

Upon careful consideration of the record, it is abundantly clear 

that [Appellants] failed to provide sufficient evidence to move 

forward with their claim. Accordingly, the [c]ourt denied 

[Appellants’] Motion for Summary Judgment. 

2. The March [24], 2021 Orders Granting [Appellees’] 

Motions for Summary Judgment[] 

As previously discussed, the [c]ourt found [Appellants] 

erroneously relied on Dittman in bringing this claim for negligent 

failure to safeguard personal and confidential information against 

[Appellees]. Therefore, for many of the reasons previously 

discussed, the [c]ourt found judgment as a matter of law was 

warranted in [Appellees’] favor. 

When viewing the record in the light most favorable to 

[Appellants] as the nonmoving parties, the evidence — or lack 

thereof — clearly showed [Appellees] were entitled to summary 

judgment. In their Motions for Summary Judgment, [Appellees] 

argued [Appellants] failed to provide any evidence to show they 

breached any duty allegedly owed to [Appellants]. [Appellants] 

countered by arguing the fraudulent transaction was a result of 

[Appellees’] failure to properly secure [Appellants’] email address. 

[Appellants] broadly argued [Appellees’] lack of adequate 

cybersecurity caused [Appellants] to transfer the funds to the 

unknown criminal actor. 

The parties did not dispute that [Appellants] contracted [KSIR]’s 

realty services for the purpose of purchasing a residential 

property. Additionally, the evidence showed the criminal actor 

contacted [Appellants] via email and that the email contained a 

mention to [DRCS]. In their Amended Complaint, [Appellants] 

broadly asserted [KSIR’s] negligently maintained and secured 

[Appellants’] email address. However, [Appellants] failed to 

identify any evidence in the record which substantiated these 

conclusory claims. Nothing was presented to show the criminal 

actor obtained [Appellants’] email address from [KSIR]. 

Pennsylvania law clearly states that when defending against a 

motion for summary judgment[,] the nonmoving party cannot 

succeed by simply making “bold unsupported assertions of 

conclusory accusations.” Here, [Appellants] failed to provide any 

evidence to show [KSIR’s] computer network was, in fact, 

breached by the criminal actor or that the email address was 
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obtained therein as opposed to from some other source, such as 

[Appellants’] host site[,] i.e., Google, Yahoo, or such other 

business entity. The lack of evidence in the record as well as the 

controlling Pennsylvania law cited herein compelled the [c]ourt to 

grant [KSIR]’s Motion for Summary Judgment and enter judgment 

in its favor. 

[Appellants] presented even less evidence to show that [DRCS’s] 

settlement closing agent was in any way involved with the 

fraudulent transaction or responsible as a party with a duty of care 

to protect [Appellants] regarding their email address under the 

facts of the case. [Appellants’] negligence claim against [DRCS] 

was based entirely on speculation and unsupported conclusory 

accusations. [Appellants] failed to identify any evidence in the 

record which showed [DRCS] was in possession of their email 

address or that [DRCS’s] computer system was infiltrated by the 

unknown criminal actor. [Appellants] presumed [DRCS’s] 

involvement in, or responsibility for[,] the alleged fraudulent 

transaction without providing any evidence for support. 

Additionally, [Appellants] presented no evidence showing [DRCS] 

required [Appellants] to provide it with their personal sensitive 

information, that [DRCS] was in possession of [Appellants’] 

sensitive personal information, nor that [DRCS] was in any way 

responsible for the unknown criminal actor gaining access and 

thereby acquiring knowledge of [Appellants’] email address. 

Accordingly, the [c]ourt found [Appellants] failed to provide 

evidence to establish a prima facie negligence claim against 

[DRCS].

Ultimately, [Appellants] failed to provide sufficient evidence as 

well as legal authority to overcome [Appellees’] Motions for 

Summary Judgment.

TCO at 5-10 (most internal citations omitted). 

On appeal, Appellants do not meaningfully contest the trial court’s 

analysis. This Court has previously explained:

The Rules of Appellate Procedure state unequivocally that each 

question an appellant raises is to be supported by discussion and 

analysis of pertinent authority. Appellate arguments which fail to 

adhere to these rules may be considered waived, and arguments 

which are not appropriately developed are waived. Arguments not 

appropriately developed include those where the party has failed 
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to cite any authority in support of a contention. This Court will 

not act as counsel and will not develop arguments on behalf of an 

appellant. Moreover, we observe that the Commonwealth Court, 

our sister appellate court, has aptly noted that mere issue spotting 

without analysis or legal citation to support an assertion precludes 

our appellate review of a matter. 

Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (cleaned 

up).

Here, Appellants do not counter the trial court’s rationale by discussing

and analyzing pertinent authority, such as Dittman. In addition, they do not

specifically argue that the trial court improperly construed any evidence, or 

explain how that led the trial court to reach an erroneous conclusion. Accord 

KSIR’s Brief at 9 (stating that Appellants’ brief “does nothing to address many 

of the arguments made to the [t]rial [c]ourt and barely acknowledges that a 

[t]rial [c]ourt decision exists”). Thus, to the extent Appellants challenge the 

trial court’s reasoning and/or its application of Dittman, we deem such 

arguments waived.

While Appellants do not meaningfully contest the trial court’s analysis,

they do raise and rely on Section 302B of the Restatement (Second) of Torts

in their brief. See Appellants’ Brief at 9-10, 13. Problematically, though, they 

do not demonstrate to us that they previously raised Section 302B below. See 

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot 

be raised for the first time on appeal.”); Pa.R.A.P. 2117(c) (requiring, where 

an issue is not reviewable on appeal unless raised or preserved below, a 

statement of place of raising or preservation of issues); Pa.R.A.P. 2119(e) 

(“Where under the applicable law an issue is not reviewable on appeal unless 
J-S04001-22

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raised or preserved below, the argument must set forth, in immediate 

connection therewith or in a footnote thereto, either a specific cross-reference 

to the page or pages of the statement of the case which set forth the 

information relating thereto as required by Pa.R.A.P. 2117(c), or substantially 

the same information”).

10, 11

 “Our appellate courts have long held that an 

[appellant] who does not follow Pa.R.A.P. 2117(c) and Pa.R.A.P. 2119(e) 

waives the related issues due to the defects in his brief.” Young v. S.B. 

Conrad, Inc., 216 A.3d 267, 274 (Pa. Super. 2019). “[I]t is not the 

responsibility of this Court to scour the record to prove that an appellant has

raised an issue before the trial court, thereby preserving it for appellate 

review.” Commonwealth v. Baker, 963 A.2d 495, 502 n.6 (Pa. Super. 

2008) (citations omitted). Accordingly, we also deem waived Appellants’ 

arguments relating to Section 302B. 

Finally, to the extent Appellants argue that it did not need an expert 

because the “ordinary juror” is “a user of e-mail in daily life,” see Appellants’ 

Brief at 10, we note that the trial court did not base its decisions on any need 

for expert testimony. Therefore, we decline to review this issue. 

____________________________________________

10 Restatement (Second) of Torts § 302B (“An act or an omission may be 

negligent if the actor realizes or should realize that it involves an unreasonable 

risk of harm to another through the conduct of the other or a third person 

which is intended to cause harm, even though such conduct is criminal.”). 

11 Once again, Appellants cite to a page in the reproduced record to support 

that they raised Section 302B below; nevertheless, our review of that portion 

of the reproduced record does not reveal that Appellants explicitly raised 

Section 302B there. See Appellants’ Brief at 13 (citing to the Reproduced 

Record at 76a). 
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Based on the foregoing, we affirm the trial court’s orders granting 

summary judgment in favor of KSIR and DRCS, and denying summary 

judgment in favor of Appellants. While we are sympathetic to Appellants’ loss 

of $317,362.50, they have not convinced us that the trial court erred. 

Orders affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/2022