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2021 PA Super 185
CARA SALSBERG IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DONNA MANN AND DREXEL UNIVERSITY
Appellant No. 623 EDA 2019
Appeal from the Order Entered January 17, 2019
In the Court of Common Pleas of Philadelphia County
Civil Division at No: 170603584
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J., DUBOW,
J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.
DISSENTING OPINION BY STABILE, J.: FILED SEPTEMBER 15, 2021
I respectfully dissent, as I would conclude that Pennsylvania law
recognizes an action for intentional interference with an at-will employment
contract and that a genuine issue of material fact exists as to that cause of
action in this matter.
In Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 393 A.2d
1175, 1183 (Pa. 1978), our Supreme Court adopted in its entirety § 766 of
the Restatement (Second) of Torts. That section, titled “Intentional
Interference with Performance of Contract by Third Person”, provides:
One who intentionally and improperly interferes with the
performance of a contract (except a contract to marry) between
another and a third person by inducing or otherwise causing the
third person not to perform the contract, is subject to liability to
the other for the pecuniary loss resulting to the other from the
failure of the third person to perform the contract.
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Restatement (Second) of Torts § 766 (1979). Section 766 expressly and
unambiguously applies to contracts terminable at-will:
Contracts terminable at-will. A similar situation exists with
a contract that, by its terms or otherwise, permits the third person
to terminate the agreement at-will. Until he has so terminated it,
the contract is valid and subsisting, and the defendant may not
improperly interfere with it. The fact that the contract is
terminable at-will, however, is to be taken into account in
determining the damages that the plaintiff has suffered by reason
of its breach.
Restatement (Second) of Torts § 766, cmt. g (1979).
Appellant, Cara Salsberg, alleges that Appellee Donna Mann
intentionally and improperly interfered with Appellant’s at-will employment
contract with Appellee Drexel University. In affiming the trial court’s ruling
that Appellant has no viable cause of action under § 766, the Majority cites
Haun v. Community Health Sys., Inc., 14 A.3d 120 (Pa. Super. 2011), and
Hennessy v. Santiago,
708 A.2d 1269 (Pa. Super. 1996). In both cases,
this Court held that Pennsylvania recognizes intentional interference under
§ 766 with respect to prospective, but not existing, at-will employment
relationships. As then-Judge Mundy noted in her dissent in Haun, both Haun
and Hennessy are in tension with this Court’s earlier opinion in Curran v.
Children’s Serv. Ctr. of Wyoming Cty., Inc.,
578 A.2d 8, 13 (Pa. Super.
1990), in which we held that “a cause of action for intentional interference
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with a contractual relationship may be sustained even though the employment
relationship is at-will.” Haun, 14 A.3d at 126 (Mundy, J. dissenting).1
Because this Court’s prior jurisprudence is inconsistent, I believe this en
banc panel should revisit Haun and Hennessy. And because Haun and
Hennessy are inconsistent with the language of § 766, as adopted by our
Supreme Court in Adler, I would overrule both. “[T]his Court is obligated to
follow the precedent set down by our Supreme Court. It is not the prerogative
of [this Court] to enunciate new precepts of law[.]” Lance v. Wyeth, 4 A.3d
160, 169 (Pa. Super. 2010) (citing Moses v. TNT Red Star Express,
725
A.2d 792, 801 (Pa. Super. 1999), appeal denied,
739 A.2d 1058 (Pa. 1999)),
reversed in part on other grounds,
85 A.3d 434 (Pa. 2014); Haun,
14
A.3d at 127 (Mundy, J. dissenting). In restricting the application of § 766 to
prospective at-will employment contracts, the Haun and Hennessy Courts
adopt a precept of law with no support in the language of § 766 and contrary
to that of comment g. The Majority also adopts an approach contrary to the
weight of authority from the United States Supreme Court and many other
states.
The United States Supreme Court addressed this issue more than a
century ago:
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1 The Curran Court affirmed summary judgment in favor of the defendant
because the plaintiff failed to identify a third party against whom the § 766
action could lie. Curran, 578 A.2d at 13.
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It is said that the bill does not show employment for a term,
and that under an employment at-will the complainant could be
discharged at any time, for any reason or for no reason, the
motive of the employer being immaterial. The conclusion,
however, that is sought to be drawn is too broad. The fact that
the employment is at the will of the parties, respectively, does not
make it one at the will of others. The employee has manifest
interest in the freedom of the employer to exercise his judgment
without illegal interference or compulsion and, by the weight of
authority, the unjustified interference of third persons is
actionable although the employment is at-will.
Truax v. Reich, 239 U.S. 33, 38 (1915).
Appellant has alleged unjustified interference of a third person with her
existing at-will employment contract—in this case Mann acting outside the
scope of her employment—and the weight of authority remains in favor of
allowing a cause of action in these circumstances. E.g., Hall v. Integon Life
Ins. Co., 454 So.2d 1338, 1344 (Ala. 1984); Wagenseller v. Scottsdale
Mem’l Hosp.,
710 P.2d 1025, 1041-44 (Ariz. 1985) (superseded in part by
statute on other grounds as stated in Galati v. America West Airlines, Inc.,
69 P.3d 1011, 1013 (Ariz. Ct. App. 2003)); Ixchel Pharma, LLC v. Biogen,
Inc.,
470 P.3d 571, 580 (Cal. 2020); Unistar Corp. v. Child,
415 So.2d 733,
734 (Fla. Dist. Ct. App. 1982);2 Guinn v. Applied Composites Eng’g, Inc.,
994 N.E.2d 1256, 1267 (Ind. 2013); RTL Dist., Inc. v. Double S Batteries,
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2 Florida federal courts have held, without citing state court precedent, that
at-will employment cannot be the basis for intentional interference with a
contract. Scelta v. Delicatessen Support Serv., Inc.,
57 F.Supp.2d 1327,
1356 (M.D. Fla. 1999) (citing Weld v. Southeaster Cos., Inc.,
10 F.Supp.2d
1318, 1322 n.8 (M.D.Fla 1998)).
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Inc., 545 N.W.2d 587, 590 (Iowa Ct. App. 1996) Health Call of Detroit v.
Atrium Home & Health Care Servs., Inc.,
706 N.W.2d 843, 849-50 (Mich.
Ct. App. 2005) (quoting Feaheny, v. Caldwell,
437 N.W.2d 358, 363-64
(Mich. Ct. App. 1989)); Nordling v. Northern States Power Co.,
478
N.W.2d 498, 505 (Minn. 1991); Levens v. Campbell,
733 So.2d 753, 760
(Miss. 1999); Topper v. Midwest Div., Inc.,
306 S.W.3d 117, 125-26 (Mo.
Ct. App. 2010); Bloch v. The Paul Revere Life Ins. Co.,
547 S.E.2d 51, 59
(N.C. Ct. App. 2001), review denied,
553 S.E.2d 35 (N.C. 2001); Jenkins
v. Region Nine Housing Corp.,
703 A.2d 664, 667 (N.J. Super. Ct. App. Div.
1997), certification denied,
709 A.2d 798 (N.J. 1998); McNickle v. Phillips
Petroleum Co.,
23 P.3d 949, 951 (Okla. Civ. App. 1999); Lewis v. Oregon
Beauty Supply Co.,
733 P.2d 430, 433 (Or. 1987); Forrester v. Stockstill,
869 S.W.2d 328, 330 (Tenn. 1994); Trepanier v. Getting Organized, Inc.,
583 A.2d 583, 589 (Vt. 1990); Charolais Breeding Ranches, Ltd. v. FPC
Sec. Corp.,
279 N.W.2d 493, 496 (Wis. Ct. App. 1979).
These courts continue to employ a rationale like that expressed by the
United States Supreme Court in Truax. “A third party’s interference with
contracts terminable at-will is actionable, because, until one of the contracting
parties terminates the contract, the parties are in a subsisting relation that
presumably will continue and is of value to the plaintiff.” Topper, 306 S.W.3d
at 125. Similarly, in Bochnowski, the Indiana Supreme Court reasoned,
“[a]n employee with an at-will employment contract must be able to expect
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that his continued employment depends on the will of his employer and not
upon the whim of a third party interferer.” Bochnowski, 571 N.E.2d at 285.
Minnesota employs the same rationale: “The at-will employment subsists at
the will of the employer and employee, not at the will of a third party meddler
who wrongfully interferes with the contractual relations of others.” Nordling,
478 N.W.2d at 505. This approach is consistent with comment g of § 766 as
adopted in full by the Pennsylvania Supreme Court. Haun and Hennessy,
without explanation, declined to follow § 766 and adopted the minority
approach3 to this issue.
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3 Some jurisdictions forbid a cause of action for tortious interference with at-will employment. E.g. Thornton v. Kaplan,
937 F. Supp. 1441,1458 (D.
Colo. 1996); Dorricot v. Fairhill Ctr. for Aging,
2 F. Supp. 2d 982, 991
(N.D. Ohio 1998); Matter of Williams v. Cty. of Genesee,
762 N.Y.S.2d
724 (N.Y. App. Div. 2003); Mendonca v. Tidewater, Inc.,
933 So.2d 233,
235 (La. Ct. App. 933 2006), writ denied,
939 So.2d 1280 (La. 2006), cert.
denied
549 U.S. 1309 (2007); Evergreen Moneysource Mortg. Co. v.
Shannon,
2874 P.3d 375, 383 (Wash. App. 2012); Anderson v. South
Lincoln Special Cemetery Dist.,
972 P.2d 136, 141 (Wyo. 1999).
Some jurisdictions have conflicting authority on point. Compare Bible
Way Church of Our Lord Jesus Christ of Apostolic Faith of Washington,
D.C. v. Beards, 680 A.2d 419, 433 (D.C. 1996) (finding no basis for a tortious
interference with contract claim arising from at-will employment); with
Sorrells v. Garfinckel’s,
565 A.2d 285, 288-91 (D.C. 1989) (allowing a
cause of action for intentional interference with contract where the defendant,
acting within the scope of her employment but with malice, caused the at-will
plaintiff’s termination); compare Champion v. Wright,
740 S.W.2d 848,
854 (Tex. App. 1987) (finding no reason to disallow actions for interference
with at-will employment) with Cote v. Rivera,
894 S.W.2d 536, 542 (Tex.
Ct. App. 1995) (holding that tortious interference with a contract depends on
the existence of a valid contract, and that he at-will employee plaintiff had no
contract); compare Champion v. Wright,
740 S.W.2d 848, 854 (Tex. App.
(Footnote Continued Next Page)
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I believe Haun and Hennessy were erroneous, as at-will employment
clearly is contractual. That is, the employee continues to work and is entitled
to be compensated for work performed until termination of the employment.
Under § 766, the at-will employee is to be free of third-party interference with
his or her employment.
The gravamen of the tort is interference with the
employment contract irrespective of the term of that
contract. [Comment g of § 766] also maintains that a contract
terminable at will is nonetheless a valid and subsisting contract
for purposes of an interference with contract tort cause of action;
and thus one cannot improperly interfere with it.
Frank J. Cavico, Tortious Interference With Contract in the At-Will Employment
Context, 79 U. DET. MERCY L. REV. 503, 511 (2002) (emphasis added; footnotes
and internal quotation marks omitted). Given the plain teaching of § 766 on
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1987) (holding that employment at-will can be subject to tortious interference
claims) with Salazar v. Amigos Del Valle, Inc., 754 S.W.2d 410, 414 (Tex.
Ct. App. 1988) (holding that a third party’s effort to induce an at-will employee
to leave his employer does not constitute tortious interference).
Virginia employs a somewhat stricter test, requiring the third-party
defendant to employ “improper methods,” such as “violence, threats or
intimidation, bribery, unfounded litigation, fraud, misrepresentation or deceit,
defamation, duress, undue influence, misuse of inside or confidential
information, or breach of a fiduciary relationship.” Duggin v. Adams, 360
S.E.2d 832, 836 (Va. 1987). Illinois holds that an at-will employee may allege
a cause of action for interference with a prospective economic advantage, but
not a cause of action for intentional interference with a contractual
relationship. Canel and Hale, Ltd. v. Tobin,
710 N.E.2d 861, 871 (Ill. Ct.
App. 1999), appeal denied,
720 N.E.2d 1090 (Ill. 1999).
For a thorough collection of case law on this issue, see 2 Callman on
Unfair Competition, Trademarks and Monopolies, (4th ed., June 2021 update)
§ 9:12.
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the issue before us, I believe the Majority’s continued adherence to Haun and
Hennessy is misguided.
Further the Majority’s reliance on Weaver v. Harpster, 975 A.2d 555
(Pa. 2009) and McLaughlin v. Gastrointestinal Spec.,
750 A.2d 283 (Pa.
2000) for the proposition that our Supreme Court “wishes to limit the impact
of tort law on at-will employment,” is misguided. Majority Opinion, at 9.
McLaughlin and Weaver were wrongful discharge cases. Both cases concern
the significant limitations on the ability of at-will employees to sue their former
employers for wrongful termination. Those concerns do not apply here. A
cause of action under § 766 does not arise against the plaintiff’s former
employer, but against a third party who allegedly interfered with the plaintiff’s
at-will employment. The third party is either a stranger to the employment
contract4 or, as here, another employee who allegedly acted outside the scope
of his or her employment in interfering with the plaintiff’s at-will employment.
The reason for the approach in § 766 and in many states is that “the contract,
even if at-will, is nonetheless a subsisting, protectable relationship, of value
to the parties thereto, and presumed to continue in effect until properly
terminated.” Cavico, supra, at 512.
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4 Salsberg argues that her actions in this case were privileged, as she was
acting within the scope of her employment as Appellant’s superior. The trial
court did not address that issue, instead finding that a cause of action under
§ 766 was not available to Appellant as an at-will employee. I would reverse
the trial court as to the availability of a cause of action under § 766 and
remand for the court to address the privilege issue in the first instance.
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At-will employees possess a reasonable, though
unenforceable, expectation of continued employment at an
employer’s firm absent tortious interference with that
employment by another individual, business, or entity. The true
issue […] is not whether a plaintiff is attempting to evade the at-will doctrine, but rather whether a plaintiff properly is seeking to
hold an interfering defendant liable for infecting a healthy
employment relationship. The result of such reasoning […] is that
for those employees who toil without the benefits and burdens of
an employment contract, tortious interference … provides a means
whereby the court will treat the at-will relationship as something
akin to property.
Id. (footnotes and internal quotation marks omitted).
In summary, I believe a cause of action under § 766 protects the
Appellant’s existing employment relationship (as opposed to a prospective
relationships, as per Haun and Hennessy) from third-party interference. I
would therefore overrule Haun and Hennessy, reverse the order entering
summary judgment, and remand for further proceedings.
I respectfully dissent.
Judge Dubow and Judge King join the Dissenting Opinion.
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