Salsberg, C., Aplt. v. Mann, D.
Supreme Court of Pennsylvania
Justice P. Kevin Brobson
Salsberg, C., Aplt. v. Mann, D.
Opinion
[J-4-2023]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
CARA SALSBERG, : No. 7 EAP 2022
:
Appellant : Appeal from the Judgment of
: Superior Court entered on
: September 15, 2021, at No.
v. : 623 EDA 2019 affirming the Order
: entered on January 17, 2019, in
: the Court of Common Pleas,
DONNA MANN AND DREXEL : Philadelphia County, Civil Division
UNIVERSITY, : at No. 170603584
:
Appellees : ARGUED: March 7, 2023
OPINION
JUSTICE BROBSON DECIDED: February 21, 2024
This discretionary matter concerns a claim brought by Cara Salsberg (Salsberg),
a former at-will employee of Drexel University (University), against her former supervisor,
Donna Mann (Mann), asserting that Mann intentionally interfered with Salsberg’s
contractual relationship with Drexel by taking actions that led to and included Salsberg’s
firing. While recognizing that Pennsylvania law permits claims of intentional interference
with the performance of contracts by third parties, the Court of Common Pleas of
Philadelphia County (trial court) and our Pennsylvania Superior Court concluded that
Mann was nonetheless entitled to summary judgment because governing law further
dictates that, in the context of an existing at-will employment relationship, an employee
has no contractual or legally enforceable right to continued employment with which a third
party can interfere. Upon review, we hold that the lower courts erred in reaching that
conclusion. We further hold, however, that an at-will employee cannot recover on a claim
for intentional interference with an existing at-will employment relationship against her
supervisor under the circumstances of this case, where Mann was acting within the scope
of her employment with Drexel and, thus, was not a third party to the relationship as
required to establish the tort in Pennsylvania. Accordingly, we affirm the Superior Court’s
judgment, albeit on alternative grounds.1
I. BACKGROUND
A. RELEVANT LAW
To provide better context for the current dispute, we set forth a brief summary of
the relevant law. This Court has recognized claims for intentional interference with
contractual relations as far back as the 1800s. See Adler, Barish, Daniels, Levin &
Creskoff v. Epstein, 393 A.2d 1175, 1182 n.12 (Pa. 1978) (explaining that this Court “had long recognized a right of action for interference with existing contractual relations” and citing, inter alia, Vanarsdale v. Laverty,69 Pa. 103
(1871), in support), appeal dismissed,442 U.S. 907
(1979). Our Court has done so in an array of factual scenarios, including those which involve: (1) the employment context as well as other unrelated contexts; (2) interference with existing contractual relations and interference with prospective contractual relations; and (3) various third-party entities as defendants.2 Moreover, 1 “This Court may affirm the order of the court below if the result reached is correct without regard to the grounds relied upon by that court,” and we have “discretionary authority to affirm an order of a lower court ‘for any valid reason appearing from the record.’” In re Adoption of C.M.,255 A.3d 343
, 347 n.1, 363 (Pa. 2021) (quoting Ario v. Ingram Micro, Inc.,965 A.2d 1194, 1200
(Pa. 2009)). 2 See, e.g., Vanarsdale,69 Pa. at 109
(affirming judgment against citizens who, without cause, petitioned school board not to employ teacher seeking reappointment for upcoming school term; providing that “[a] groundless petition instigated only by malice cannot surely be the right of any citizen where it actually results in harm to the object of its malicious purpose”); Birl v. Phila. Elec. Co.,167 A.2d 472, 473-75
(Pa. 1960)
(concluding that plaintiff stated cause of action against his former employer and its sales
(continued…)
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throughout the development of the law in this area, the Court has adopted or otherwise
relied upon various iterations of the provisions and attendant commentary in the
Restatement (Second) of Torts (Restatement) as to such claims, including Section 766 of
the Restatement.3 More to this point, our Court cited to Section 766 of the Restatement
(First) of Torts with approval in two cases4 before adopting that provision “and its definition
manager for intentional interference with contractual relations, where plaintiff alleged that
former employer, through sales manager, “falsely and maliciously” induced plaintiff’s
current employer to fire plaintiff); Adler, 393 A.2d at 1177, 1181-86(reinstating award of injunctive relief in favor of law firm on claim that firm’s former associates intentionally interfered with existing contractual relationships between law firm and its clients); Glenn v. Point Park College,272 A.2d 895, 896-98
(Pa. 1971) (recognizing cause of action for intentional interference with prospective contractual relationship in case where real estate brokers brought suit against real estate vendee for vendee’s negotiation of direct purchase of real estate from vendor, depriving brokers of anticipated commissions); Thompson Coal Co. v. Pike Coal Co.,412 A.2d 466, 469-72
(Pa. 1979) (collecting Pennsylvania cases that have examined alleged interferences with both existing contracts and prospective business relations but denying relief on both claims in dispute concerning whether defendants interfered with plaintiffs’ leasehold interest in, and ongoing attempts to purchase, property from owners). 3 See, e.g., Birl,167 A.2d at 474
(adopting prior version of Section 766 of Restatement and relying upon special note to comment m to describe concept of malice); Adler,393 A.2d at 1182
n.13 (observing that “we have repeatedly looked to the Restatement as authority for the elements of a cause of action for intentional interference with existing contract relations”); Glenn,272 A.2d at 897, 899
(explaining that “[t]he courts of this Commonwealth have accepted and applied [Section] 766 in a variety of situations” and citing favorably to “proposed comment D to the Tentative Draft of [Section] 766A of the Restatement” relating to intent); Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc.,20 A.3d 468, 469-70, 479
(Pa. 2011) (holding that “Restatement [Section] 772(a) applies in Pennsylvania to preclude an action for tortious interference with contractual relations where it is undisputed that the defendant’s interfering statements were truthful” and explaining that “[t]he Restatement commentary [the Court] set forth [previously] amply explain[ed] why the conveyance of truthful information cannot reasonably be deemed to be ‘improper’ interference”); see also Thompson Coal Co.,412 A.2d at 470
(noting then-recent trend of separating claims of interference with existing contract rights pursuant to Section 766 of Restatement and interference with prospective contractual relations pursuant to Section 766B of Restatement). 4 Bloom v. Devonian Gas & Oil Co.,155 A.2d 195, 196
(Pa. 1959); Bright v. Pittsburgh Musical Soc’y,108 A.2d 810, 814
(Pa. 1954).
[J-4-2023] - 3
of the right of action for intentional interference with existing contractual relations” in Birl
v. Philadelphia Electric Company. Adler, 393 A.2d at 1181-82 & n.12. We explained in
Birl:
At least since Lumley v. Gye, (1853) 2 Ell. & Bl. 216,
1 Eng.Rul.Cas. 706, the common law has recognized an action in tort for
an intentional, unprivileged interference with contractual relations. It is
generally recognized that one has the right to pursue his business relations
or employment free from interference on the part of other persons except
where such interference is justified or constitutes an exercise of an absolute
right: Restatement, Torts, Section 766. . . .
....
The elements of this tort of inducing breach of contract or refusal to
deal, which must be averred in the complaint, are set forth in the
Restatement, Torts, Section 766, which says, . . . [‘]one who, without a
privilege to do so, induces or otherwise purposely causes a third person not
to (a) perform a contract with another, or (b) enter into or continue a
business relation with another is liable to the other for the harm caused
thereby’. In other words, the actor must act (1) for the purpose of causing
this specific type of harm to the plaintiff, (2) such act must be unprivileged,
and (3) the harm must actually result. Furthermore, where the defendant is
alleged to have induced another to discharge his employee by false
statements, the substance of such statements should be set out in the
complaint. Moran v. Dunphy, [59 N.E. 125(Mass. 1901)]. Birl,167 A.2d at 474
.
Almost two decades later, in recognition of the American Law Institutes’ “continuing
effort to provide the judicial system orderly and accurate restatements of the common
law,” and given that the “Court constantly seeks to harmonize common law rules,
principles, and doctrines with modern perceptions of societal needs and responsibilities,”
the Court in Adler chose to examine the case before it in light of the most current version
of Section 766 available at the time. Adler, 393 A.2d at 1183. This version, then
contained in Tentative Draft Number 23 of Section 766 of the Restatement, is virtually the
same as the version currently set forth in the Restatement, which provides:
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Intentional Interference with Performance of Contract by Third Person
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.
Section 766 of the Restatement.5
Notwithstanding the above, there is a dearth of case law from this Court explicitly
addressing the precise scenario here—i.e., where an at-will employee claims that a
supervisor intentionally interfered with the at-will employment relationship between the
employee and employer—or the question of whether our common law recognizes such
claims pursuant to Section 766 of the Restatement or otherwise. It appears that the only
case from this Court that touches upon this discrete question is Menefee v. Columbia
Broadcasting System, Inc., 329 A.2d 216(Pa. 1974), where this Court summarily concluded that certain higher-level employees who had exercised an employer’s contract right to terminate an employee on thirteen weeks’ notice could not be found liable for conspiracy to interfere with an employee’s contractual relationship with the employer because they had a “privilege” to advise the employer on handling its employees and cause the termination of the employee. Menefee,329 A.2d at 217, 221
. 5 By way of further background, prior to Adler, our Court had elaborated on the elements of the tort as concerns both existing contracts and prospective contractual relations by requiring: (1) “the existence of a contract or of a prospective contractual relation[ship] between the third person and the plaintiff;” (2) an act for “the purpose or intent to harm plaintiff” by inducing a breach of contract or refusal to deal, or preventing a prospective relationship from occurring; “(3) the absence of privilege or justification on the part of the actor . . . and (4) the occurrence of actual harm or damage to plaintiff as a result of the actor’s conduct.” Glenn, 895 A.2d at 898. Of further note, Adler highlighted the then-“new” Restatement’s shift to “focus[ing] upon whether conduct is ‘proper,’ rather than ‘privileged,’ and used the factors set forth in Section 767 of the Restatement to determine whether conduct is “improper” for purposes of the tort. Adler,393 A.2d at 1184
& n.17.
[J-4-2023] - 5
In contrast, the Superior Court has addressed this scenario on multiple occasions.
Most relevant here, in Curran v. Children’s Service Center, 578 A.2d 8(Pa. Super. 1990), appeal denied,585 A.2d 468
(Pa. 1991), the Superior Court considered whether a psychologist who worked for an organization as an at-will employee could assert against the clinical director who terminated him a claim for intentionally interfering with his contractual relationship with the organization. Curran,578 A.2d at 9
. In answering the question, the Superior Court observed that “[a] cause of action for intentional interference with a contractual relationship may be sustained even though the employment relationship is at-will.”Id. at 13
. Notably, in support, the Curran Court cited to Yaindl v. Ingersoll-Rand Co. Standard Pump-Aldrich Division,422 A.2d 611
(Pa. Super. 1980) (abrogation on other grounds as recognized in Yetter v. Ward Trucking Corp.,585 A.2d 1022
(Pa. Super. 1991)), which in turn relied on Comment g of Section 766 of the
Restatement6 for the proposition that “an action for intentional interference with the
performance of a contract lies even though the contract interfered with is terminable at
6 Comment g to Section 766 of the Restatement provides:
g. 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. (See § 774A).
One’s interest in a contract terminable at will is primarily an interest in future
relations between the parties, and he has no legal assurance of them. For
this reason, an interference with this interest is closely analogous to
interference with prospective contractual relations. (See § 766B). If the
defendant was a competitor regarding the business involved in the contract,
his interference with the contract may be not improper. (See § 768,
especially Comment i).
[J-4-2023] - 6
the will of the parties.” Yaindl, 422 A.2d at 618n.6.7 The Superior Court in Curran nonetheless concluded that the psychologist was unable to state a cognizable claim for intentional interference “on account of the termination of his employment.” Curran,578 A.2d at 13
. The Superior Court explained that, because “a corporation can act only through its agents” and the psychologist identified the clinical director who terminated his employment as an agent of organization-employer in the complaint, there was “no third party against whom an action for intentional interference with a contractual relationship [could] lie.”Id.
As a result, the Superior Court affirmed the trial court’s order granting
summary judgment in favor of the clinical director and organization.
Following Curran, the Superior Court decided Hennessy v. Santiago, 708 A.2d
1269(Pa. Super. 1998), and Haun v. Community Health Systems, Inc.,14 A.3d 120
(Pa. Super. 2011), both of which restricted the application of Section 766 of the Restatement to prospective at-will contracts, seemingly in the face of the Superior Court’s prior decision in Curran. In Hennessy, a doctor employed at-will a habilitative counselor to counsel clients at the doctor’s individual practice and at a corporation that the doctor controlled in part and which provided community living arrangements for county residents pursuant to county contracts. Hennessy,708 A.2d at 1272
. The doctor fired the counselor after the counselor, upon receiving a report of a rape that occurred at the community living facility, investigated the report and aided the victim in reporting the rape to authorities.Id.
Claiming that an assistant county administrator, who oversaw the county’s activities, instructed the doctor to terminate the counselor in retaliation for helping the rape victim, the counselor brought a claim against the assistant county administrator for tortious 7 Yaindl, which involved claims for wrongful discharge and intentional interference with a prospective employment relationship, made the above observation in connection with its point that it was “most useful . . . to view an action for wrongful discharge . . . as a particularized instance of a more inclusive tort of intentional interference with the performance of a contract.” Yaindl,422 A.2d at 618
.
[J-4-2023] - 7
interference with the counselor’s employment relationship. Id. In considering whether
the counselor could bring such a claim against the county administrator, the Superior
Court ultimately held that “an action for intentional interference with performance of a
contract in the employment context applies only to interference with a prospective
employment relationship whether at-will or not, not a presently existing at-will employment
relationship.” Id. at 1279. While the counselor relied upon the above-quoted language
from Yaindl relating to at-will contracts in support of her position that an action lies against
a third party for intentional interference with an at-will employment relationship, the
Superior Court concluded that the language in Yaindl was dicta and that the counselor
had cited no other cases “where [the] doctrine [relating to intentional interference with
contracts terminable at-will] has been extended to the ambit of at-will employment.” Id.
at 1278. As a result, the Superior Court affirmed the trial court’s order granting the county
administrator’s preliminary objection in the nature of a demurrer as to the counselor’s
intentional-interference claim. Id. at 1272, 1279.
In Haun, a chief financial officer (CFO) filed a medical malpractice action against
a hospital—where he worked as an at-will employee—and others in connection with
injuries that his son sustained following the son’s birth at the hospital. Haun, 14 A.3d
at 121-22. Shortly thereafter, an executive for the hospital’s parent company and related subsidiary companies (Companies) instructed the chief executive officer (CEO) of the hospital to consider terminating the CFO.Id. at 122
. Subsequently, the hospital’s CEO and human resources director advised the CFO that he was being terminated given that he had become an adversary and the attendant risk involved.Id.
The CFO then filed suit against the hospital and Companies, alleging, inter alia, that the Companies tortiously interfered with the CFO’s employment contract.Id.
In a divided opinion, a majority of the
Superior Court observed that it was constrained by Hennessy to conclude that the CFO
[J-4-2023] - 8
could not successfully assert a cause of action for intentional interference with a
contractual relationship in the foregoing context because his employment relationship
was at-will and not prospective. Id. at 125. In a footnote, the majority recognized that Hennessy remained the prevailing law on the matter unless and until an en banc decision of the Superior Court or decision of this Court overturned it.Id.
at 125 n.1. The majority added that, insofar as the CFO relied upon language from Yaindl and Curran to support his contrary position, such language was “merely dicta and, therefore, th[ose] two prior decisions ha[d] no bearing” on the case before it or Hennessy’s precedential value.Id.
Based on the foregoing, the majority reversed the trial court’s order to the extent that it overruled preliminary objections in the form of a demurrer relative to this cause of action.Id. at 125
.
In a concurring and dissenting opinion in Haun, then-Judge, now-Justice Mundy
disagreed with the majority’s conclusion that Hennessy was the prevailing decisional law
and that it constrained the Court’s decision. In so doing, she explained that her review of
the law revealed “that different panels of [the Superior Court] ha[d] made contradictory
rulings regarding a plaintiff’s ability to bring an action for intentional interference with a
contractual relationship in an at-will employment context.” Haun, 14 A.3d at 126(Mundy, J., concurring and dissenting). Preliminarily, while she agreed that the language cited from Yaindl, recognizing intentional interference claims in the context of contracts terminable at will, was dicta, she concluded that Curran’s pronouncement that such claims were cognizable in the at-will employment context was not.Id. at 126
(Mundy, J.,
concurring and dissenting). Then-Judge Mundy reasoned that Curran’s “unequivocal[]”
proclamation that “[a] cause of action for intentional interference with a contractual
relationship may be sustained even though the employment relationship is at-will” was
essential to Curran’s ruling because the Curran panel would never had to have reached
[J-4-2023] - 9
the question of whether the supervisor was an appropriate third-party otherwise. Id.(Mundy, J., concurring and dissenting) (quoting Curran,578 A.2d at 13
). Then, after conceding that this Court’s adoption of Section 766 of the Restatement did not mandate that the Hennessy panel follow the precepts of Comment g, then-Judge Mundy nevertheless found it notable that the Hennessy panel failed to address Section 766, Comment g, or the Curran decision, which referenced Comment g.Id. at 127
(Mundy, J., concurring and dissenting). Furthermore, given this Court’s adoption of Section 766 and the Superior Court’s precedent recognizing Comment g, then-Judge Mundy “believe[d] it was incumbent upon the panel in Hennessy to explain its departure from the path established by [this] Court.”Id.
(Mundy, J., concurring and dissenting). Then-Judge Mundy concluded that, “[i]n failing to do so, the Hennessy decision not only contradict[ed] a prior panel of th[e Superior] Court, but . . . also commit[ted] the jurisprudential error” of enunciating a new precept of law—a task left for this Court—through its departure from Comment g.Id.
(Mundy, J., concurring and dissenting). Finding that Hennessy was not controlling in light of this Court’s precedent regarding Section 766 and the Superior Court’s “contradictory precedent citing Comment g,” and believing that the Superior Court’s decisional law on the issue before it was in conflict, then-Judge Mundy would have affirmed the trial court’s order overruling the preliminary objections to the CFO’s intentional-interference claim.Id.
(Mundy, J., concurring and dissenting).
B. THIS MATTER
Having set forth the relevant legal precedent under which the present controversy
arose, we now turn to the underlying facts and procedural history of this case. Salsberg
worked as an at-will employee for Drexel under Mann’s supervision from
October 2011 until June 2017, when she was fired for unsatisfactory job performance
based on Mann’s recommendation and representations. Pertinently, Salsberg began her
[J-4-2023] - 10
employment with Drexel as a senior tax accountant in the Office of Tax Compliance (Tax
Office). Salsberg received consistently positive annual performance reviews from Mann
through 2016. In the interim, in March 2015, Salsberg was promoted to manager of
tax/compliance. Then, beginning sometime in late 2016 or early 2017, the relationship
between Salsberg and Mann began to deteriorate. The parties dispute the reasons for
this decline in their relationship and the circumstances of Salsberg’s termination.
Generally, according to Salsberg, Mann started exhibiting erratic workplace behavior and
imposing increased work demands on Salsberg, which prompted Salsberg to meet with
Mann’s supervisor, David Rusenko (Rusenko), about these concerns. Salsberg further
claims that, in response, Mann manufactured performance issues—specifically placing
Salsberg on a “performance improvement plan” (PIP)—and then used the performance
issues as a pretext for effectuating Salsberg’s firing in retaliation for Salsberg’s meeting
with Rusenko and based upon Mann’s personal animus toward Salsberg. In retort, Mann
attributes the relationship’s breakdown and Salsberg’s firing to a legitimate decline in
Salsberg’s work product and attitude in response to increased job demands.
Following her termination, Salsberg filed suit against Mann and Drexel, asserting,
inter alia, a claim against Mann for intentional interference with Salsberg’s contractual
relationship with Drexel. After a period of discovery, Mann and Drexel filed a motion for
summary judgment seeking dismissal of all claims, which Salsberg opposed. In the
context of these filings and subsequent litigation on the motion, the parties disputed the
following pertinent issues relative to Salsberg’s claim against Mann: (1) whether a
contractual relationship existed between Salsberg and Drexel with which Mann could
interfere, given the at-will nature of Salsberg’s employment with Drexel; (2) whether
Mann, as Salsberg’s supervisor and Drexel’s agent, was a third party to the contract
(assuming one existed) and otherwise engaged in privileged and/or justified conduct;
[J-4-2023] - 11
and (3) whether Pennsylvania law only recognizes a claim for intentional interference with
a prospective at-will employment relationship and not a presently existing at-will
employment relationship.
Ultimately, the trial court issued an order granting the motion for summary
judgment and dismissing Salsberg’s complaint with prejudice. Salsberg then appealed
to the Superior Court. In its Pennsylvania Rule of Appellate Procedure 1925(a) opinion,
the trial court explained that it granted summary judgment as a matter of law pursuant to
the Superior Court’s decisions in Hennessy and Haun. In doing so, however, the trial
court noted that Comment g to Section 766 of the Restatement plainly “acknowledges a
right to initiate a cause of action by an at-will employee such as []Salsberg,” further citing
Adler and Curran. (Trial Ct. 1925(a) Op., 3/20/2019, at 5.) The trial court added that it
was persuaded by the minority opinion authored by then-Judge Mundy in Haun. (Id.)
Nonetheless, the trial court recognized that it was not the “forum to create new law or new
interpretations” and, thus, granted summary judgment in favor of Mann accordingly.8
(Id. at 5-6.)
Upon review, the Superior Court affirmed in a divided, published, en banc opinion.
Salsberg v. Mann, 262 A.3d 1267 (Pa. Super. 2021) (en banc). Before the Superior Court,
Salsberg argued that the trial court erred in granting summary judgment relative to her
intentional interference claim because Pennsylvania law permits intentional interference
claims in the context of contracts terminable at will, and Section 766 of the Restatement
and federal case law permit such claims in the context of at-will employment contracts.
Writing for the majority, President Judge Panella observed that Hennessy was the
8 Notwithstanding its conclusion above, the trial court also commented on the issue of
whether Mann’s conduct was privileged and justified, noting that “such a determination is
typically a question of fact for a jury” and that “the record reveal[ed] many genuine issues
of disputed facts and circumstances.” (Trial Ct. 1925(a) Op., 3/20/2019, at 6.)
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prevailing decisional law in holding that an intentional interference claim is cognizable in
Pennsylvania in the employment context relative only to a “prospective employment
relationship whether at-will or not, not a presently existing at-will employment
relationship.” Id. at 1271 (quoting Hennessy, 708 A.2d at 1279). The majority pointed out that the Hennessy panel held, albeit “[w]ithout much explanation,” that the difference between prospective and existing at-will employment relationships was “critical.”Id.
Noting that “Pennsylvania law distinguishes between claims for intentional interference with prospective contractual relationships and existing contractual relationships,” the majority observed that, unlike in the case of existing contractual relationships, prospective contractual relationships afford “something less than a contractual right, [but] something more than a mere hope” and that “a claim for interference with a prospective contractual relationship requires merely a showing of the probability of a future contractual relationship.”Id.
(quoting Thompson Coal Co.,412 A.2d at 471
).
The majority explained that, here, “there was nothing prospective about Salsberg’s
employment relationship with Drexel” but that, instead, “Salsberg had an existing at-will
employment contract, limited by implied terms.” Id.In this regard, the majority opined: “In Pennsylvania, absent a statutory or contractual provision to the contrary, either party may terminate an employment relationship for any or no reason.”Id.
(quoting Mikhail v. Pa. Org. for Women in Early Recovery,63 A.3d 313, 316
(Pa. Super. 2013)). As such, “Salsberg did not have any reasonable expectation of continued employment guaranteed by contract.”Id.
Rather, “any expectation of continued at-will employment is nothing more than a mere hope.”Id.
The majority explained that, “[w]hile Pennsylvania law provides a remedy for interference with expectations that are ‘something less than a contractual right,’ it does not provide a remedy where those expectations are a ‘mere hope.’”Id.
at 1272 (quoting Thompson Coal,412 A.2d at 471
). The majority added that,
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in declining to recognize a “common law cause of action against an employer for
termination of an at-will employment relationship” except in the “most limited of
circumstances, where discharges of at-will employees would threaten clear mandates of
public policy,” this Court clearly “wishe[d] to limit the impact of tort law on at-will
employment.” Id.at 1271-72 (quoting McLaughlin v. Gastrointestinal Specialists, Inc.,750 A.2d 283, 287
(Pa. 2000), and Weaver v. Harpster,975 A.2d 555, 562-63
(Pa. 2009)).
Thus, while recognizing the “tension in Hennessy’s explicit reasoning” differentiating
between existing at-will employment contracts and prospective ones, and though
characterizing Salsberg’s arguments as an implicit request to overturn Hennessy, the
majority declined to do so, opining that the decision was consistent with this Court’s
precedent. Id. at 1272. The majority, therefore, affirmed the trial court’s order dismissing
Salsberg’s complaint with prejudice.
Judge Stabile authored a dissenting opinion, which Judges Dubow and King
joined. Therein, Judge Stabile concluded 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.” Id. at 1272 (Stabile, J.,
dissenting). In reaching this conclusion, Judge Stabile first opined that this Court adopted
Section 766 of the Restatement in its entirety in Adler and that Section 766 “expressly
and unambiguously applies to contracts terminable at[ ]will” by virtue of Comment g. Id.
(Stabile, J., dissenting). Next, Judge Stabile agreed with then-Judge Mundy’s minority
opinion in Haun that the Haun majority opinion and Hennessy were in tension with Curran,
holding that a cause of action for intentional interference with a contractual relationship
may be brought in the context of an at-will employment relationship under Section 766 of
the Restatement. Id. at 1273 (Stabile, J., dissenting). Suggesting that the en banc panel
should revisit Haun and Hennessy given the inconsistency, Judge Stabile further opined
[J-4-2023] - 14
that both decisions contravened Section 766 as adopted by this Court, Comment g, and
the weight of authority from the United States Supreme Court and many other
jurisdictions. Id. at 1273-74 (Stabile, J., dissenting) (relying upon, inter alia, Truax v.
Raich, 239 U.S. 33, 38(1915) (“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.”) (collecting cases)). Positing that Haun and Hennessy declined to follow Section 766 and adopted the minority approach “without explanation,” Judge Stabile added that the decisions “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.” Id. at 1274-75 (Stabile, J., dissenting). Judge Stabile further opined that “[u]nder [Section] 766, the at-will employee is to be free of third-party interference with his or her employment.” Id. at 1275 (Stabile, J., dissenting) (quoting upon Frank J. Cavico, Tortious Interference With Contract in the At-Will Employment Context,79 U. Det. Mercy L. Rev. 503
, 511 (2002) (“[T]he gravamen of the tort is interference with the employment
contract irrespective of the term of that contract. The Restatement . . . 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.”) (footnote and internal quotation marks omitted)).
Judge Stabile observed that the majority was misguided not only in adhering to
Haun and Hennessy but also in relying upon Weaver and McLaughlin “for the proposition
that [this] Court ‘wishes to limit the impact of tort law on at-will employment.’” Id. (Stabile,
J., dissenting) (quoting Salsberg, 262 A.3d at 1272). Noting that Weaver and McLaughlin
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pertained to wrongful discharge claims arising against a former employer, Judge Stabile
explained that, by contrast, claims of intentional interference with contractual relations
arise against a third party—either a stranger to the employment relationship or another
employee acting outside the scope of his employment—who purportedly interfered with
the plaintiff’s at-will employment. Id. at 1275-76 (Stabile, J., dissenting). Judge Stabile
opined that McLaughlin and Weaver “concern[ed] the significant limitations on the ability
of at-will employees to sue their former employers for wrongful termination” and that
“[t]hose concerns do not apply here.” Id. at 1275 (Stabile, J., dissenting). Accordingly,
because he believed that Section 766 of the Restatement “protects [Salsberg’s] existing
employment relationship (as opposed to a prospective relationships [sic], as per Haun
and Hennessy) from third-party interference,” Judge Stabile would have overruled
Hennessy and Haun, reversed the trial court’s order granting summary judgment, and
remanded the case for further proceedings. Id. at 1276 (Stabile, J., dissenting) (emphasis
omitted).
II. ISSUE
We granted discretionary review to resolve the following issue, as stated by
Salsberg: “Whether Pennsylvania should apply [Section 766 of the Restatement] to an
[i]ntentional [i]nterference claim by an employee at will against a supervisor who acted
against that employee, not as an agent on behalf of her employer, but ultra vires and
pursuant to personal animus?” Salsberg v. Mann, 275 A.3d 964(Pa. 2022) (per curiam). This issue comes to this Court by way of an order granting summary judgment and implicates a question of law. Accordingly, “our standard of review is de novo, and our scope of review is plenary.” Gallagher v. GEICO Indem. Co.,201 A.3d 131, 137
(Pa. 2019); Khalil v. Williams,278 A.3d 859
, 871 (Pa. 2022).
[J-4-2023] - 16
III. PARTIES’ ARGUMENTS
Before this Court, Salsberg reiterates that the trial court erred in granting summary
judgment in favor of Mann on the basis that a claim for intentional interference with
contractual relations will not lie for a third party’s interference with an existing at-will
employment relationship. In support, Salsberg relies upon Yaindl, Section 766 of the
Restatement, Comment g, and federal authority to argue that the at-will nature of her
employment relationship does not defeat her claim. Salsberg also echoes then-Judge
Mundy’s observations in Haun and notes that federal courts have predicted that this Court
would recognize a claim for intentional interference with an at-will employment
relationship. Salsberg additionally claims that case law makes clear that Mann, as
Salsberg’s supervisor, can be held liable for intentional interference with contractual
relations as a third party to the employment relationship by engaging in conduct that is
intentional, improper, without privilege, and outside the scope of her authority.
(Salsberg’s Br. at 12 (quoting Yaindl, 422 A.2d at 619 n.8 (observing that “[i]t is widely
held that an agent is liable if he intentionally and improperly induces his principal to break
its contract with a third person”)).) Salsberg submits that, as demonstrated by the record,
this case involves several disputed material facts relative to Mann’s actions in that regard,
which a jury should resolve. Further highlighting the trial court’s receptiveness to her
position, Salsberg requests that we recognize her claim against Mann under
Section 766 of the Restatement, reverse the decisions below, and remand the matter for
further proceedings.
Mann counters that the trial court did not err in granting summary judgment in her
favor. Mann argues that, as an at-will employee, Salsberg did not possess the contractual
relationship needed to establish an intentional interference claim. Mann submits that our
courts “have long framed at-will employment as the inverse of a contractual relationship”
[J-4-2023] - 17
and argues that recognizing intentional interference claims in this context would
“contravene the long-settled law of this Commonwealth that employees do not have
contractual rights in [the] at-will employment” realm. (Mann’s Br. at 11-12 (emphasis
omitted).) Further observing the precept that “discharges will not be reviewed in a judicial
forum” except in rare instances, Mann contends that permitting a claim of intentional
interference in the at-will employment context risks opening the floodgates of litigation,
thereby forcing Pennsylvania courts to sit as a “super-personnel board” to review any
workplace conflict. (Id. at 13-14 (quoting Scott v. Extracorporeal, Inc., 545 A.2d 334, 336
(Pa. Super. 1988)).) Mann adds that recognizing such claims will “erode the
long-standing principles of at-will employment” and that “[a]ny further erosion of the at-will
presumption in Pennsylvania should be effected by the legislature, not the courts.” (Id.)
Mann also disputes any suggestion by Salsberg that this Court has adopted Comment g
to Section 766 of the Restatement and argues that we are under no obligation to adopt
Comment g here. Based on the foregoing, Mann “urges this Court to reject Comment g[]
and adopt the reasoning of the Hennessy and Haun majorities.” (Id. at 13.)
Assuming, arguendo, that this Court allows claims of intentional interference with
contractual relations in the context of existing at-will employment relationships as a matter
of law, Mann submits that Salsberg’s claim fails nonetheless because Mann at all times
acted properly within the scope of her authority as an agent of Drexel as demonstrated
by the record. As such, Mann submits, her conduct was privileged and/or justified, and
there was no third-party interference with the employment relationship, as Mann and the
University were one and the same. In support, Mann argues that, in Pennsylvania, a
corporation’s supervisory personnel have “a privilege to cause their corporate employer
to terminate an employee.” (Mann’s Br. at 15 (relying upon Menefee, 329 A.2d at 221).)
Mann submits that “[t]he overwhelming weight of authority in Pennsylvania is that a . . .
[J-4-2023] - 18
management level agent is not personally liable for inducing breach of contract unless
the individual’s sole motive in causing the corporation to breach a contract is actual malice
directed toward the plaintiff, or the individual’s conduct is against the interest of the
corporation. (Id. at 16 (emphasis in original) (citing, inter alia, Geary v. U.S. Steel Corp.,
319 A.2d 174 (Pa. 1974)).) Arguing that there is no record evidence from which a jury
could infer that Mann acted solely with actual malice or against Drexel’s interest when
documenting Salsberg’s performance, Mann faults Salsberg for failing to cite to the record
or otherwise misrepresenting the record in support of her claim. Mann further notes that
mere suspicion of improper or malicious conduct is insufficient to establish that an agent
acts outside the scope of her authority and submits that her conduct was proper as
demonstrated by application of the six-factor test established for making such
determinations.9 Further relying upon cases that denied intentional interference claims
for want of a third party,10 Mann asks this Court to affirm the Superior Court’s decision.
IV. ANALYSIS
We begin our analysis by clarifying whether our common law recognizes claims
for intentional interference with existing at-will employment relationships as a general
matter. In doing so, we again set forth the relevant provisions of Section 766 of the
Restatement, which, as noted, we have relied upon previously in addressing claims for
intentional interference with contracts by third parties:
9 See Adler, 393 A.2d at 1184(relying upon Section 767 of Restatement for following factors to consider in determining whether conduct is “improper:” “(a) The nature of the actor’s conduct, (b) The actor’s motive, (c) The interests of the other with which the actor’s conduct interferes, (d) The interests sought to be advanced by the actor, (e) The proximity or remoteness of the actor’s conduct to the interference and (f) The relations between the parties”). 10 Maier v. Maretti,671 A.2d 701, 707
(Pa. Super. 1995), appeal denied,694 A.2d 622
(Pa. 1997); Nix v. Temple Univ. of Commonwealth Sys. of Higher Educ.,596 A.2d 1132, 1137
(Pa. Super. 1991); Daniel Adams Assocs., Inc. v. Rimbach Pub., Inc.,519 A.2d 997, 1002
(Pa. Super.), appeal denied,535 A.2d 1056
-57 (Pa. 1987).
[J-4-2023] - 19
One who intentionally and improperly interferes with the performance
of a contract . . . 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.
It is true that, by its plain language, Section 766 does not limit the type of contract that
falls within its ambit and, accordingly, would appear to encompass claims of intentional
interference with existing at-will employment contracts. Moreover, as illustrated above,
Comment g certainly lends further credence to the conclusion that Section 766 comprises
such claims. Nonetheless, insofar as these observations are akin to an exercise in
statutory construction, while notable, they do not provide a sufficient basis in and of
themselves upon which to conclude that claims for intentional interference with at-will
employment contracts are to be recognized in Pennsylvania. This Court has explained
that adoption of Restatement
principles into our common law is distinct in concept and application from
the adoption of a statute by the General Assembly. Although the reporter’s
words have intrinsic significance because their purpose is to explain the
legal principle clearly, they are not entitled to the fidelity due a legislative
body’s expression of policy, whose judgment and intent, wise or unwise, a
court generally is obligated to effectuate, absent constitutional infirmity. The
language of a restatement, as a result, is not necessarily susceptible to
“statutory”-type construction or parsing. An effective and valuable
restatement of the law offers instead a pithy articulation of a principle of law
which, in many cases, including novel or difficult ones, represents a starting
template for members of the judiciary, whose duty is then to employ an
educated, candid, and common-sense approach to ensure dispensation of
justice to the citizenry. The common law relies in individual cases upon
clear iterations of the facts and skillful advocacy, and evolves in principle by
analogy, distinction, and reasoned explication. This is the essence of
justice at common law.
Tincher v. Omega Flex, Inc., 104 A.3d 328, 399-400(Pa. 2014) (citation omitted); see also Brunier v. Stanert,85 A.2d 130, 134
(Pa. 1951) (observing that “[t]his Court has
never held that Comment c. of [Section] 44 of the Restatement of Trusts was accepted in
toto as the law in Pennsylvania” and that to accept “comment as a correct enunciation of
the law in Pennsylvania would necessitate judicial assumption of the legislative
[J-4-2023] - 20
prerogative” and require Court “to overrule, at least by necessary implication, the well[-
]established principle that oral trusts are viewed with disfavor”). We have made similar
observations in addressing claims of intentional interference with contractual relations.
See Walnut St. Assocs., Inc., 20 A.3d at 478-79 (“Of course, the fact that the Second
Restatement contains [a] refinement [relative to claims for intentional interference with
contractual relations by virtue of Section 722 of the Restatement and its commentary,
relating to truthful information and honest advice], and explicitly provides that the
conveyance of truthful information is not ‘improper’ interference, is not reason alone for
this Court to ‘adopt’ the provision, or to deem it a proper statement of Pennsylvania law.
We adopt the provision, instead, because we believe the formation is consistent with the
very nature of the tort, and with Pennsylvania law.”).
We, nonetheless, conclude that recognition of a claim for intentional interference
with an existing at-will employment contract or relationship against a third party to the
relationship not only is consistent with—and a logical application or extension of—“the
very nature of the tort . . . and . . . Pennsylvania law,” but also “serves the interests of
justice.” Walnut St. Assocs., Inc., 20 A.3d at 479; Tincher,104 A.3d at 355
. Our Court has already recognized an individual’s “right to pursue his business relations or employment free from interference on the part of other persons except where such interference is justified or constitutes an exercise of an absolute right.” Birl,167 A.2d at 474
(emphasis added). At-will employment—though generally characterized by the
ability of the parties to the employment relationship to terminate the relationship at any
time and for any reason or no reason11—is employment nonetheless. Moreover, while
we acknowledge that at-will employment does not confer a contractual “right” to continued
employment as between the parties to the employment relationship, it does not follow that
11 See infra at pages 30-31.
[J-4-2023] - 21
an employee has no protectable interest whatsoever in the continuance of that
employment relationship vis-à-vis third parties:
The fact that the employment is at the will of the parties . . . 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, 239 U.S. at 38. Furthermore, insofar as this Court has looked to the approach of other jurisdictions in determining whether to apply common law rules,12 the weight of authority indeed appears to be aligned with our decision to recognize such claims based on similar reasoning.13 12 See, e.g., Bilt-Rite Contractors, Inc. v. The Architectural Studio,866 A.2d 270, 285
(Pa. 2005) (explaining that Court was persuaded by decisions of sister jurisdictions to formally adopt restatement provision as applied by those jurisdictions in particular scenario); Tincher, 103 A.3d at 355 & n.7 (providing that “a court should consider whether the application [of a general common law principle as set forth in restatement provision] is logical and serves the interests of justice, and whether the general principle has been accepted elsewhere”). But see id. at 355 n.7 (providing that “questions remain subject to dispute regarding the ‘essential nature of the modern Restatements’ and whether uniformity among jurisdictions is necessary and wise”). 13 See, e.g., Bochnowski v. Peoples Fed. Sav. & Loan Ass’n,571 N.E.2d 282, 284-85
(Ind. 1991) (noting that Indiana courts had “held that contracts involving at[-]will employment relationships cannot form the basis of a claim for interference with a contractual relationship” on grounds that at-will employment contracts are unenforceable as to terms that remain executory, but observing that “reasoning has been rejected by the vast majority of states” and further recognizing such claims); Mendelson v. Blatz Brewing Co.,101 N.W.2d 805, 807
(Wis. 1960) (providing that “Wisconsin has aligned itself with the majority in holding that a cause of action is maintainable for unlawful interference with an employment contract terminable at will”); Wagenseller v. Scottsdale Mem’l Hosp.,710 P.2d 1025, 1041-42
(Ariz. 1985) (relying upon, inter alia, Truax and Comment g to Restatement to recognize cause of action for intentional interference with “any contract, at-will or otherwise,” including at-will employment contract), superseded in part by statute on other grounds as stated in Galati v. Am. W. Airlines, Inc.,69 P.3d 1011, 1013
(Ariz. Ct. App. 2003); RTL Dist., Inc. v. Double S Batteries, Inc.,545 N.W.2d 587, 590
(Iowa Ct.
App. 1996) (explaining that “[t]he existence of an at-will contract of employment . . . does
not insulate a defendant from liability for tortious interferences” and that “[u]ntil a contract
is terminated, it remains valid and subsisting, and third persons may not improperly
(continued…)
[J-4-2023] - 22
In view of the above, we find the Superior Court’s decisions in Hennessy, Haun,
and the instant matter to be in error in categorically barring intentional interference claims
relative to existing at-will employment relationships. As noted, the Superior Court’s
rationale was premised on a distinction it delineated between “prospective” and “existing”
at-will employment contracts, observing that intentional interference claims were
permitted in the former scenario on the grounds that there is a “probability of a future
contractual relationship” (which is a protectable interest) but denying such claims in the
latter scenario because there is only a “mere hope” that the employment relationship will
continue (which is not a protectable interest). See Salsberg, 262 at 1270-72. This
distinction ignores the expectation interest a party to the at-will employment relationship
has in continued employment absent unlawful interference by a third party, identified
above. It also fails to recognize the parallel between this “expectancy” interest in future
relations and the “expectancy” interest implicated in the context of prospective contractual
relations14—i.e., that there is a “reasonable likelihood or probability” that the prospective
contractual relationship would have come to fruition but for the third party’s intentional
interfere with it”); Nordling v. Northern States Power Co., 478 N.W.2d 498, 505(Minn. 1991) (concluding that “a tortious interference claim will lie for an at-will employment agreement” and that “[t]he 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”); Lewis v. Oregon Beauty Supply Co.,733 P.2d 430, 433
(Or. 1987) (noting that parties in at-will employment relationship have same interest in integrity and security of their contract as parties to any other contract and that until party to at-will contract terminates same, it is valid and third party is prohibited from improperly interfering therewith); Forrester v. Stockstill,869 S.W.2d 328, 330
(Tenn. 1994)
(observing that “intentional interference with at-will employment by a third party, without
privilege or justification, is actionable”).
14 “One’s interest in a contract terminable at will is primarily an interest in future relations
between the parties, and he has no legal assurance of them. For this reason, an
interference with this interest is closely analogous to interference with prospective
contractual relations. (See [Section 766B of the Restatement].)” Section 766 of the
Restatement, Comment g.
[J-4-2023] - 23
interference—which our Court has already deemed to be protected in this
Commonwealth. Glenn, 272 A.2d at 898-99; Thompson Coal,412 A.2d at 471
. Indeed, in Glenn, this Court saw “no reason whatever why an intentional interference with a prospective business relationship which results in economic loss is not as actionable as where the relation[ship] is presently existing.” Glenn,272 A.2d at 897
. Similarly, where
our common law permits claims for intentional interference with existing contractual
relations and prospective contractual relations, we find no compelling reason to bar in
toto a cause of action that is, in essence, a permutation of those two claims.
Accordingly, insofar as we have never before explicitly recognized a claim for
intentional interference with an existing at-will employment relationship by a third party,
we do so today.15 This conclusion, however, does not end our inquiry, as “[c]ourts around
the country are not in complete agreement over how such an action should be pleaded
and proved” when the tort involves an employer’s officer, agent, or employee as the
purported third party interfering with the employment relationship. Gruhlke v. Sioux
Empire Fed. Credit Union, Inc., 756 N.W.2d 399, 404 n.1 (S.D. 2008). Nonetheless, it is beyond cavil that any claim for intentional interference with a contractual relationship by a third party requires, inter alia, the existence of an identifiable third-party actor who is interfering with the relationship between two other parties. To illustrate, in Glazer v. Chandler,200 A.2d 416
(Pa. 1964), this Court addressed a situation in which the plaintiff sued the defendant in tort for inducing breach of contract and refusing to deal with third parties. Glazer,200 A.2d at 417
. However, the plaintiff’s “allegations and evidence only
disclose[d] that [the] defendant breached his contracts with [the] plaintiff and that as an
15 We note our agreement with Mann that this Court has never formally adopted
Comment g to Section 766 of the Restatement. Nor do we see a compelling reason to
adopt Comment g or elaborate on any particular standards or elements relative to the
instant claim asserted beyond what is necessary to—and prescribed by—our analysis
herein.
[J-4-2023] - 24
incidental consequence thereof [the] plaintiff’s business relationships with third parties
ha[d] been affected.” Id. at 418. This Court explained that, under these circumstances, “an action lies only in contract for defendant’s breaches, and the consequential damages recoverable, if any, may be adjudicated only in that action.”Id.
In support, the Court recognized that all successful claims for the tort, whether involving existing or prospective contractual relationships, require the relationships to “exist[] between third parties and a plaintiff.”Id.
(footnote omitted). The Court continued:
To permit a promisee to sue his promissor in tort for breaches of
contract inter se would erode the usual rules of contractual recovery and
inject confusion into our well[-]settled forms of actions. Most courts have
been cautious about permitting tort recovery for contractual breaches and
we are in full accord with this policy. The methods of proof and the damages
recoverable in actions for breach of contract are well established and need
not be embellished by new procedures or new concepts which might tend
to confuse both the bar and litigants.
Id. (citations omitted).
Stated another way, Glazer makes clear that a party cannot “interfere with its own
contract.” Gruhlke, 756 N.W.2d at 410(quoting Latch v. Gratty, Inc.,107 S.W.3d 543, 545
(Tex. 2003)). Moreover, while satisfaction of the “third party” element is left
unquestioned in many scenarios—e.g., those that involve a true stranger to the
contractual relationship—it cannot be in the present context, where the plaintiff has
brought a claim against a coworker. It is
generally accepted . . . that a corporation can only act through its officers,
agents, and employees. See Weatherly Area Sch. Dist. v. Whitewater
Challengers, Inc., . . . 616 A.2d 620, 621 ([Pa.] 1992) (noting that
governmental agencies, political subdivisions, and private corporations can
act only “through real people—its agents, servants or employees.”);
Maier[, 671 A.2d at 707] (concluding employees, agents, and officers of a
corporation may not be regarded as separate parties when acting in their
official capacity). Indeed, under the doctrine of vicarious liability, the
corporation, not the employee, is liable for acts committed by the employee
in the course of employment. See Travelers Cas. & Sur. Co. v.
Castegnaro, . . . 772 A.2d 456, 460 ([Pa.] 2001) (concluding a principal is
[J-4-2023] - 25
liable for the negligent acts and torts of its agents, as long as those acts
occurred within the agent’s scope of employment).
Tayar v. Camelback Ski Corp., Inc., 47 A.3d 1190, 1196(Pa. 2012); see also BouSamra v. Excela Health,210 A.3d 967
, 984 n.13 (Pa. 2019) (quoting Petrina v. Allied Glove Corp.,46 A.3d 795, 799
(Pa. Super. 2012) (“A corporation is a creature of legal fiction which can act or speak only through its officers, directors, or other agents. Where a representative for a corporation acts within the scope of his or her employment or agency, the representative and the corporation are one and the same entity, and the acts performed are binding on the corporate principal.”)). As noted, the Superior Court has already recognized the import of these pronouncements in circumstances similar to those here. Curran,578 A.2d at 13
(explaining that “corporation can act only through its agents” and that, because clinical director who terminated employee was agent of organization-employer, there was “no third party against whom an action for intentional interference with a contractual relationship [could] lie”); Maier,671 A.2d at 707
(rejecting employee’s intentional interference claim against supervisor because supervisor was “same party” as employer where supervisor’s actions fell within scope of employment; explaining that “[e]ssential to recovery on the theory of tortious interference with contract is the existence of three parties” and that “a corporation acts only through its agents and officers, and such agents or officers cannot be regarded as third parties when they are acting in their official capacity”); Martin v. Cap. Cities Media, Inc.,511 A.2d 830, 845
(Pa.
Super. 1986) (“Even if we consider the employee’s at-will status as a broad type of
contract which could be interfered with, we hold that this allegation is improper in light of
the fact that the claim is made by an employee against the publisher of the newspaper
[J-4-2023] - 26
where she worked. There was no third[-]party interference with appellant’s contract.”
(emphasis in original)), appeal denied, 523 A.2d 1132 (Pa. 1987).16
Thus, it is clear that a plaintiff cannot sue a coworker for the tort of intentional
interference with contractual relations between the plaintiff and her employer unless the
alleged misconduct of the coworker falls outside of the scope of the coworker’s
employment or authority. Finally, while not heretofore mentioned by this Court in relation
to intentional interference claims, we have analyzed “the common law ‘scope of
employment’ inquiry . . . using the factors set forth [in Section 228 of] the Restatement
(Second) of Agency”). McGuire ex rel. Neidig v. City of Pittsburgh, 285 A.3d 887, 892
(Pa. 2022). Pursuant thereto:
(1) Conduct of a servant is within the scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
16 The Superior Court has also rejected claims in this context for both want of a third party
and, in line with our decision in Menefee, the existence of a privilege. Rimbach, 519 A.2d
at 1002-03(concluding that where “a plaintiff has entered into a contract with a corporation, and that contract is terminated by a corporate agent who has acted within the scope of his or her authority, the corporation and its agent are considered one so that there is no third party against whom a claim for contractual interference will lie” and that, because the employer “had an absolute contractual right to terminate [the] contract and [the defendant], acting within the scope of his authority as its corporate officer, was privileged to exercise that right,” plaintiff’s discharge by defendant on behalf of corporation did not give rise to claim for intentional interference); Nix,596 A.2d at 1137
(rejecting
claim because defendants were administrative officers acting on behalf of university when
employee was discharged and, thus, were not third parties; further concluding that alleged
interference was privileged because “[c]orporate officers, as well as managerial
employees, by virtue of the responsibilities of their offices, are permitted to take action
which would have the effect of interfering with a contractual relationship between the
corporation and employee”); Rutherfoord, 612 A.2d at 508 (holding that no third party
existed for purposes of intentional interference claim because defendants were acting as
agents for hospital and further rejecting claim that defendant can be liable for intentional
and improper inducement even though defendant is not a separate entity on grounds that
defendants were privileged to cause corporate employer to terminate employee). Given
our focus on the “third party” element of the tort and our ultimate conclusion discussed
below that Salsberg’s claim fails for lack of a third party, we need not proceed to address
the nature of the third party’s conduct as “privileged,” “justified,” or otherwise “improper.”
[J-4-2023] - 27
(b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master,
and
(d) if force is intentionally used by the servant against another, the
use of force is not unexpectable by the master.
(2) Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized time or
space limits, or too little actuated by a purpose to serve the master.
We likewise find it appropriate to conduct the “scope of employment” analysis through
use of these factors.
In sum, we reiterate that a third party can be liable for intentional interference with
an at-will employment relationship between an employee and employer in Pennsylvania.
In the case of an employee asserting the tort against a coworker, the coworker cannot be
held liable unless, at a minimum, the coworker is acting outside the scope of her
employment pursuant to Section 228 of the Restatement (Second) of Agency such that
she qualifies as a true third party, or stranger, to the contractual relationship. This
conclusion is in accord with our common law and the law of other jurisdictions,17 and it
17 See, e.g., Gruhlke, 756 N.W.2d at 408(holding that “when corporate officers act within the scope of employment, even if those actions are only partially motivated to serve their employer’s interests, the officers are not third parties to a contract between the corporate employer and another in compliance with the requirements for the tort of intentional interference with contractual relations”); Latch,107 S.W.3d at 545
(“The acts of a corporate agent on behalf of his or her principal are ordinarily deemed to be the corporation’s acts. To show that an agent has interfered with his or her principal’s contract, the plaintiff must prove the agent acted solely in furtherance of [his or her] personal interests so as to preserve the logically necessary rule that a party cannot tortiously interfere with its own contract.” (internal citations and quotation marks omitted) (alteration in original)); McGanty v. Staudenraus,901 P.2d 841, 846-47, 849
(Or. 1995) (holding that employee acting within scope of employment is not third party to contract between employer and another for purpose of tort of intentional interference with economic relations and utilizing similar “scope of employment” test); Reed v. Michigan Metro Girl Scout Council,506 N.W.2d 231, 233
(Mich. Ct. App. 1993) (“To maintain a
cause of action for tortious interference, the plaintiffs must establish that the defendant
was a ‘third party’ to the contract or business relationship. . . . It is now settled law that
corporate agents are not liable for tortious interference with the corporation’s contracts
unless they acted solely for their own benefit with no benefit to the corporation.”).
[J-4-2023] - 28
serves the interests of justice. In this vein, we find the observations made by the Supreme
Court of South Dakota, which has employed a similar analysis to that which we adopt
today relative to the “scope of employment” inquiry in the context of this specific tort, to
be particularly apt as concerns Pennsylvania jurisprudence as well:
In the employment context, we think a claim of tortious interference
with contractual relations may be made against a corporate officer, director,
supervisor, or co-worker, who acts wholly outside the scope of employment,
and who acts through improper means or for an improper purpose. Such
individuals should not stand immune from their independently improper acts
committed entirely for personal ends. There are two reasons, however, why
judicial vigilance is called for here. First, the tort should not be tolerated as
a device to bypass South Dakota’s at-will employment law. “An
employment having no specified term may be terminated at the will of either
party on notice to the other, unless otherwise provided by statute.” If we fail
to hold the line on these types of tort actions, we put at stake converting
at-will employment law into a rule requiring just cause for every employee
termination. . . .
. . . Second, use of the tort without adequate controls could chill the
advantages of corporate formation. As the Minnesota Supreme Court
wrote:
If a corporation’s officer or agent acting pursuant to his company
duties terminates or causes to be terminated an employee, the
actions are those of the corporation; the employee’s dispute is with
the company employer for breach of contract, not the agent
individually for a tort. To allow the officer or agent to be sued and to
be personally liable would chill corporate personnel from performing
their duties and would be contrary to the limited liability accorded
incorporation.
Nordling v. N. States Power Co., 478 N.W.2d 498, 505-06 (Minn. 1991).
Indeed, a rule allowing suits against corporate officers who act within the
scope of their authority would be a “dangerous doctrine.” Moreover, the
distinction between contract and tort would be blurred by the untrammeled
imposition of tort liability on contracting parties.
Gruhlke, 756 N.W.2d at 405 (some internal citations omitted).
This Court has likewise already cautioned against “erod[ing]” the distinction
between tort-based and contract-based theories of recovery in the context of claims for
intentional interference with contractual relations. Glazer, 200 A.2d at 418. We similarly
[J-4-2023] - 29
acknowledge the concern that allowing the tort recognized here today risks eviscerating
our at-will employment principles and stifling employers’ ability to structure and conduct
their businesses as they choose. Our Commonwealth operates not only under a “strong
presumption [that] all non-contractual employment relations [are] at[ ]will” but also
pursuant to the well-settled rule that the parties to the at-will employment relationship may
terminate the relationship at any time, for any reason or no reason, except in “the most
limited of circumstances.” Weaver, 975 A.2d at 562-63; McLaughlin,750 A.2d at 286-87
; Rothrock v. Rothrock Motor Sales, Inc.,883 A.2d 511
, 512 n.1, 516 (Pa. 2005) (further explaining that “Pennsylvania has been consistently reluctant to erode th[e] convention” that, “absent an employment contract, an employer is free to terminate an employee at any time, for any reason,” and “continu[ing] to hold to Pennsylvania’s traditional view that exceptions to at-will termination should be few and carefully sculpted so as to not erode an employer’s inherent right to operate its business as it chooses”). These circumstances include instances in which the discharge of an at-will employee would violate a constitutional, contractual, or statutory provision, or would otherwise contravene “a clear mandate of public policy.” Weaver,975 A.2d at 556
; McLaughlin,750 A.2d at 287
; Socko v. Mid-Atlantic Sys., of CPA, Inc.,126 A.3d 1266, 1273
(Pa. 2015). Nonetheless, “as a general rule, there is no common law cause of action against an employer for termination of an at-will employment relationship.” Clay v. Advanced Comp. Applications, Inc.,559 A.2d 917, 918
(Pa. 1989); see also Geary,319 A.2d at 184-85
(holding that where
there is “a plausible and legitimate reason for terminating an at-will employment
relationship and no clear mandate of public policy is violated thereby, an employee at will
has no right of action against his employer for wrongful discharge”).
These pronouncements exemplify the limited impact tort law has in the at-will
employment arena in Pennsylvania, as the Superior Court correctly noted below in the
[J-4-2023] - 30
instant matter. Moreover, while our wrongful discharge cases “concern the significant
limitations on the ability of at-will employees to sue their former employers for wrongful
termination,” our discussion herein lays bare our respectful disagreement with the notion
that “[t]hose concerns do not apply here.” Salsberg, 262 A.3d at 1275 (Stabile, J.,
dissenting). Rather, such concerns are directly implicated insofar as we recognize that
allowing the tort in this context breeds potential for parties to use it to “maneuver . . .
around at-will employment law.” Gruhlke, 756 N.W.2d at 405. We, therefore, agree that
courts must remain vigilant against such a practice when addressing claims of intentional
interference with contractual relationships by third parties in the at-will employment
context.
Having set forth the above standards, we now turn to the circumstances of this
case. In doing so, we are mindful that the trial court decided this matter on a motion for
summary judgment filed by Mann and Drexel. It is well settled that summary judgment
should be awarded “only in cases where the record contains no genuine issue of material
fact, and the moving party is entitled to judgment as a matter of law.” Williams, 278 A.3d
at 871. “As we are reviewing the Superior Court’s order affirming the grant of summary
judgment, we view the record in the light most favorable” to Salsberg as the non-moving
party. Bourgeois v. Snow Time, Inc., 242 A.3d 637, 639 n.1 (Pa. 2020). Upon review,
we conclude that the trial court did not err in granting the motion for summary judgment
in favor of Mann on Salsberg’s claim for intentional interference with contractual relations,
albeit on different grounds. Specifically, we hold that Salsberg has failed to establish that
there exists a genuine issue of material fact that Mann acted outside the scope of her
employment such that Mann qualifies as a third party to the employment relationship
between Salsberg and Drexel.
[J-4-2023] - 31
Preliminarily, it is undisputed that Drexel employed Salsberg as an at-will
employee in its Tax Department under the supervision of Mann at all times relevant
herein. Moreover, the record reveals that Mann’s supervisory duties encompassed the
authority to set/approve Salsberg’s schedule and work assignments, evaluate and
address Salsberg’s job performance, and make recommendations about Salsberg’s
employment, including recommendations on hiring, promoting, and firing Salsberg.18
Mann reviewed Salsberg’s performance annually through 2016, providing Salsberg
18 (See Original Record (O.R.), Item No. 24, Motion for Summary Judgment, Exhibit B,
“Performance Improvement Process” Policy (outlining PIP procedures and identifying
actions supervisor may take when employee’s “performance, attendance, or behavior is
unsatisfactory,” including termination upon consultation and approval with HR, and
preserving at-will nature of employment relationship); Exhibit F (letter dated
September 26, 2011, from HR offering Salsberg position of senior tax accountant “[u]pon
the recommendation of . . . Mann,” providing that Salsberg “will work under the direction
of . . . Mann,” and explaining that Salsberg’s “supervisor will inform [Salsberg] of the
expectations regarding [Salsberg’s] daily schedule”); Exhibit H (letter dated
March 19, 2015, from HR congratulating Salsberg on “position as Manager, Tax
Compliance within the Office of Tax Compliance,” directing that Salsberg “will work under
the direction of . . . Mann,” and providing that Salsberg’s “supervisor will inform [Salsberg]
of the expectations regarding [Salsberg’s] daily schedule”); Exhibit I, “Hours of Work”
Policy (defining “Drexel’s Business Hours” as “8am to 5pm,” allowing “Flexible Work
Arrangements” with “approval of the immediate supervisor and Department Head,” and
explaining that “[i]t is the immediate supervisor’s responsibility to ensure coverage during
Drexel Business Hours so all Professional Staff Members of the work group are aware of
each other[’s] work schedules”); Exhibit L (PIP issued by Mann to Salsberg on
March 22, 2017, identifying performance issues); Exhibit O (email dated May 29, 2017,
from Mann to HR Representative regarding May 26, 2017 meeting between Mann and
Salsberg on PIP progress and setting forth continued performance issues); Exhibit P,
“Termination of Employment” Policy (providing guidelines for termination of employment
but preserving at-will status of professional staff members); Exhibit Q (letter dated
June 2, 2017, from HR providing that, “as discussed today with . . . Mann, . . . [Salsberg
was] being terminated from [her] position . . . . based on [Salsberg’s] unsatisfactory
performance;” further explaining that, “[i]n conversations with [Salsberg’s] supervisor,
[Mann] has observed deficiencies and the lack of demonstrated improvement to meet
expectations within [Salsberg’s] position”); (See also Salsberg’s Deposition at 54-56,
77-78, 121-22, 211-12, 216 (acknowledging that Mann approved Salsberg’s schedule and
set work assignments, made recommendations about Salsberg’s employment, including
promotion and discharge, and reviewed Salsberg’s work).)
[J-4-2023] - 32
consistently positive reviews each year. (O.R., Item No. 27, Exhibit 2, Mann’s Deposition,
at 29-30, 55.) In March 2015, Salsberg was promoted to Manager of Tax Compliance
upon Mann’s recommendation. (O.R., Item No. 24, Motion for Summary Judgment,
Exhibit H.) During Salsberg’s tenure as Tax Manager, Drexel’s Tax Office consisted of
four people: Mann, Salsberg, Hillary Stein (Stein), and Kate Rosenberger (Rosenberger).
(Salsberg’s Deposition at 24-27, 128.) Mann supervised Stein (in addition to Salsberg),
while Salsberg supervised Rosenberger. (Id.)
As for the circumstances precipitating Salsberg’s termination, Salsberg’s own
account reveals as follows. Mann and Salsberg had a good working relationship up until
March 10, 2017. (Salsberg’s Deposition at 113-14, 125.) On that date, Salsberg, Mann,
and Stein had a meeting to discuss workload, the need to work overtime, and the need
to cover for Rosenberger while Rosenberger was out during the tax “busy season.” (Id.
at 24-25, 28, 33-34.) Though Mann expressed the need for Salsberg and Stein to work
overtime, Mann did not indicate how many hours were necessary when Salsberg asked.
(Id. at 33, 124.) Indeed, Salsberg did not “think it was necessary to work overtime” and
felt that she was able to get her work done during her normal hours.” 19 (Id. at 42, 114,
123.) Salsberg expressed these thoughts to Mann at the March 10, 2017 meeting, though
Salsberg did not say that she would or would not work the overtime because she did not
know what was expected. (Id. at 114, 163-64.) Stein also did not believe overtime was
necessary and apparently indicated that at the March 10, 2017 meeting as well. (Id. at
121.) In response, Mann explained that Rusenko, Mann’s supervisor, indicated that the
University was going through changes, that “everything . . . was coming from [Rusenko],”
and that Mann “would have to speak to [Rusenko] and [Mann] would get back to” Salsberg
19 Pertinently, while Drexel’s regular work hours were 8:00 a.m. to 5:00 p.m., Salsberg
was working from 7:00 a.m. to 3:00 p.m. at the time leading up to her separation based
on a request to—and approval by—Mann. (Salsberg’s Deposition at 30-32.)
[J-4-2023] - 33
and Stein. (Id. at 114, 116, 124.) According to Salsberg, it seemed like Mann was using
Rusenko as her reason for requiring the extra work. (Id. at 163.) Moreover, the meeting
on March 10, 2017, was “contentious” and Mann “was definitely upset.” (Id. at 123.)
Based on the foregoing, on March 13, 2017, Salsberg took it upon herself to meet
with Rusenko directly. (Id. at 24-25.) Salsberg did not consider her meeting with Rusenko
to be an official action pursuant to any policy; rather, Salsberg went to Rusenko hoping
to help herself and Mann. (Id. at 139, 164-65.) In this regard, Salsberg sought the
meeting for two specific reasons: (1) to obtain clarity as to the issues discussed at the
March 10, 2017 meeting, particularly as to how much overtime would be required to work;
and (2) to discuss certain concerning behaviors that Salsberg had observed Mann
exhibiting in the office. (Id. at 33-35, 44, 48-50, 56-57, 116, 124, 151.) With respect to
the overtime issue, Salsberg and Rusenko discussed certain alternative solutions to
address the overtime demands and Salsberg’s schedule given her family responsibilities
outside of work. (Id. at 49, 148.) Salsberg also indicated that she “worked hard during
[her] time at the office” and “basically took a stab at the fact that [Mann] did nothing all
day” based on Salsberg’s belief that Mann “spent more time doing personal stuff than she
did work.” (Id. at 115, 123.) As for Mann’s concerning behavior, Salsberg told Rusenko
that “[Mann] was crazy”—e.g., “[Mann] would pick her head until it bled,” “physically r[u]n
through the office,” “bump into walls and stuff,” and slam her door. (Id. at 49-50.)
Salsberg and Rusenko speculated as to whether this behavior stemmed from
concussions Mann had previously suffered, and Rusenko indicated that he would “work
behind the scenes with HR to get [Mann] help.” (Id. at 143.) Ultimately, however,
Rusenko did not provide additional clarity on the amount of overtime that would be
required of Salsberg and said that Salsberg should discuss her concerns with Mann. (Id.
at 35, 147-49.) While Salsberg asked Rusenko to accompany Salsberg in addressing
[J-4-2023] - 34
Mann, Rusenko declined because “he wanted [Salsberg] to deal with it on [her] own” and
did not “want [Salsberg] to make matters worse.” (Id. at 148-49.) Salsberg also
expressed to Rusenko that she was afraid that Mann would retaliate against Salsberg for
meeting with him directly, because Salsberg knew the meeting would “make Mann mad.”
(Id. at 57-58.) While Salsberg was “scared to death to have that meeting with [Rusenko],
. . . [Salsberg] felt . . . that someone needed to know what was going on in that office”
relative to Mann’s behavior, and Salsberg wanted Mann to get “help.” (Id. at 138-39.) In
response, Rusenko told Salsberg not to worry because Drexel took retaliation very
seriously. (Id. at 65.)
After meeting with Rusenko, and in accordance with his recommendations,
Salsberg approached Mann. (Id. at 35, 170.) Mann, however, indicated that she would
not speak to Salsberg without the presence of HR. (Id. at 51, 170.) Indeed, Mann “[p]retty
much” did not speak with Salsberg in the absence of HR from the March 10, 2017 meeting
until Salsberg was terminated on June 2, 2017. (Id. at 51-54, 120.) Mann did, however,
meet with Salsberg and an HR representative two or three times, including for purposes
of issuing Salsberg a PIP on March 22, 2017, and discharging Salsberg. (Id. at 51-54,
120, 170-71, 179.) With respect to the PIP in particular, Salsberg stated that the PIP was
the first time Mann indicated that she was dissatisfied with Salsberg’s work product. (Id.
at 178-79.) Salsberg refused to sign the PIP because she did not agree with it. (Id.
at 171-72.) As for the termination meeting, Salsberg explained that Mann and an HR
representative handed Salsberg a letter and said she was being terminated for
performance issues. (Id. at 179-81.) Salsberg does not know who made the decision to
discharge her. (Id. at 181.)
According to Salsberg, her fear that Mann would retaliate against her for meeting
with Rusenko was borne out. (Id. at 59.) In furtherance of her position that Mann began
[J-4-2023] - 35
treating her differently after that meeting, Salsberg explained that Mann purposefully
excluded Salsberg from a learning opportunity at work, refused to approve time off for
doctor’s appointments for Salsberg, and required Salsberg to cover for everyone in the
office. (Id. at 59-60, 140-43.) Salsberg also accused Mann of lying to Rusenko about
Salsberg screaming in the March 10, 2017 meeting. (Id. at 162.) Salsberg additionally
elaborated on her disagreement with Mann’s statements in the PIP. Specifically, Mann
indicated in the PIP, inter alia, that Salsberg: (1) exhibited a “lack of behavior expected”
in the role of manager, including presenting herself “as a positive influence to all
colleagues and show[ing] respect for [her] supervisor;” (2) needed to “improve the quality
of [her] work as [her] final work product should have minimal/no errors, especially at the
level of the manager role;” (3) needed to “contribute to the increased volume of work and
additional responsibilities the Tax Office is required to take on by working extra hours to
assist [Mann] in getting the tasks completed;” and (4) at the March 10, 2017 meeting, was
“disrespectful towards [Mann] and . . . Rusenko” and “refused to help out where [she was]
needed.” (O.R., Item No. 24, Exhibit L, PIP issued 3/22/2017, at 1.) In contrast, Salsberg
thought that she was a good manager, and she worked the overtime requested of her.
(Salsberg’s Deposition at 172.) Salsberg also stated that the work she was producing
had only minimal errors while adding that Mann was more critical of Salsberg’s work after
the PIP,20 but that Salsberg improved while on the PIP and tried her hardest because she
loved her job and was a good employee. (Id. at 173-74.) Salsberg also emphasized that,
at the March 10, 2017 meeting, Salsberg only stated that overtime was unnecessary, not
that she refused to work overtime. (Id. at 175.) Salsberg added that she worked extra
20 Mann provided Salsberg with “review notes” as to the tax returns Salsberg completed
both before and after Mann placed Salsberg on the PIP. (Salsberg’s Deposition at 53-56,
174.) Through these review notes, Mann would identify errors and “areas that [Mann]
thought [Salsberg] needed to make a change or improve." (Id. at 56.)
[J-4-2023] - 36
hours but felt that Mann did not utilize her during that time, that she “did the best [she]
could” to work more hours, and that Mann even thanked her for the overtime she put in
during one “check in” she had with Mann and HR after the “busy season” but still said it
was not enough. (Id. at 44-47, 149-50, 177.) Given that Mann had never indicated that
Salsberg was not putting in enough overtime up until that point, Salsberg believed that
Mann “set up” Salsberg so that she did not work enough. (Id. at 177.) Salsberg also
indicated that her experience was not an isolated incident, as Mann also had “issues” with
Stein, others left the office because of Mann, and Mann engaged in certain documentation
practices designed to “get rid” of others. (Id. at 119, 188-93.)
Upon review of the circumstances of Salsberg’s termination in the light most
favorable to Salsberg, we conclude that there is no genuine issue of material fact as to
whether Mann acted outside the scope of her authority such that Mann can be considered
a third party that is liable for intentionally interfering with Salsberg’s at-will employment
relationship with Drexel.21 As an initial matter, there is no dispute that Mann’s conduct at
all relevant times fell within authorized time and space limits and that this matter does not
21 Justice Mundy expresses a preference for remanding this matter to allow the parties to
present more fulsome advocacy as to whether Mann’s actions fell within the scope of her
employment. In support, Justice Mundy cites to an allegation in Salsberg’s Complaint,
suggesting the allegation alone creates a genuine issue of material fact notwithstanding
the undisputed record evidence discussed above. (Concurring and Dissenting Op. at 2-3
(Mundy, J.) (quoting Complaint, 6/30/2017, ¶ 97 at 10).) In responding to a motion for
summary judgment, however, “the nonmoving party cannot rest upon the pleadings, but
rather must set forth specific facts demonstrating a genuine issue of material fact.” Bank
of Am., N.A. v. Gibson, 102 A.3d 462, 464(Pa. Super. 2014), appeal denied,112 A.3d 648
(Pa. 2015). Instead, “a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Ertel v. Patriot-News Co.,674 A.2d 1038, 1042
(Pa. 1996) (emphasis added), cert. denied,519 U.S. 1008
(1996). A non-movant’s
“[f]ailure to adduce [such] evidence establishes that there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law.” Id. As explained
herein, our review reveals that there is no genuine issue of material fact on the scope-of-
employment issue as demonstrated by the evidence of record, even when viewed in the
light most favorable to Salsberg.
[J-4-2023] - 37
involve any use of force. See Section 228(1)(b), (d) of Restatement (Second) of Agency.
Moreover, Mann’s conduct was clearly “of the kind [she wa]s employed to perform” in
supervising Salsberg (i.e., directing Salsberg’s work and schedule, evaluating Salsberg’s
performance, and making recommendations as to Salsberg’s employment at Drexel).
See Section 228(1)(a) of the Restatement (Second) of Agency. Finally, we conclude that
there is no issue of genuine material fact that Mann’s actions were “actuated, at least in
part, by a purpose to serve” Drexel. Section 228(1)(c) of the Restatement (Agency).
While this issue appears to be the most contested by the parties, Salsberg admitted that
she openly disagreed with Mann’s approach to handling the Tax Office’s increased
workload and Salsberg’s schedule, by-passed Mann by raising the issue at a meeting
with Mann’s own supervisor even though Salsberg knew the meeting would anger Mann,
and stated that Mann had mental health issues during that meeting. Salsberg also does
not dispute that Mann was displeased with the amount of hours that Salsberg was working
and Salsberg’s attitude and performance as a manager, including as it related to admitted
errors in Salsberg’s work. As noted in Geary, decided in the wrongful discharge context
but under similar circumstances, an employer has a legitimate interest in “preserv[ing]
administrative order in its own house” irrespective of whether the employee’s “intentions
were good,” and an employer can fire an at-will employee to advance that interest subject
to limitations not at issue here. Geary, 319 A.2d at 178-79.22 Thus, even accepting that 22 In Geary, an at-will employee working for United States Steel Corporation (US Steel) repeatedly voiced concerns about the safety of a new product, eventually “by-passing his immediate superiors” and raising the matter with a vice president in charge of the sale of the product. Geary,319 A.2d at 173, 180
. While the product was ultimately reevaluated
and withdrawn from the market, Geary was fired. Id. at 173-74. This Court rejected
Geary’s wrongful-discharge claim, holding that where a “complaint itself discloses a
plausible and legitimate reason for terminating an at-will employment relationship and no
clear mandate of public policy is violated thereby, an employee at will has no right of
action against his employer for wrongful discharge.” Id. at 180. The Court reasoned that
“[t]he most natural inference from the chain of events recited in the complaint [wa]s that
(continued…)
[J-4-2023] - 38
the additional hours were unnecessary, the expectations were not clear, Salsberg “did
her best” with her work, Salsberg met with Rusenko for the benefit of herself and Mann,
and Mann acted for personal retaliatory reasons in effectuating Salsberg’s firing, there is
no genuine dispute that Salsberg was terminated at least in part for a purpose to serve
Drexel. See, e.g., Gruhlke, 756 N.W.2d at 409-10(rejecting claim that plaintiff sufficiently alleged that defendant constituted third party by “act[ing] out of his personal interests when he advocated for the termination of [plaintiff’s] business relationship with [corporation]” because “corporate officers cannot be considered third parties to contracts between the corporate employer and another if the actions of the officers were even partially motivated to serve employer interests” and plaintiff failed to allege that defendant acted “solely” for personal interest); see also Reed,506 N.W.2d at 232-33
(rejecting claim
for intentional interference with economic relations against defendant serving as
executive director and chief executive officer of girl scout council for failure to show
defendant “was acting strictly for her own personal benefit when she allegedly persuaded
the council not to sell [property] to plaintiffs[; a]lthough plaintiffs alleged that [defendant]
personally disliked [one plaintiff] and was out to ‘punish’ him, these allegations stem[med]
from a prior real estate transaction in which [that plaintiff] ultimately sued the council[ and,
thus, the defendant’s] motives therefore [could] not be said to be strictly personal”).
Indeed, in light of Geary, and in exercising the aforementioned judicial vigilance against
attempts to circumvent our at-will employment doctrine, we view this case as such an
attempt and reject it accordingly.
[the employee] had made a nuisance of himself, and the company discharged him to
preserve administrative order in its own house.” Id. at 178.
[J-4-2023] - 39
V. CONCLUSION
For the foregoing reasons, we hold that Pennsylvania does not categorically bar
claims for intentional interference with an at-will employment contract or relationship by a
third party.23 As such, we hold that the trial court and Superior Court erred to the extent
23 Chief Justice Todd opines that the Court should decline to recognize the above claim
of third-party intentional interference in the at-will employment context because, in that
context—insofar as Pennsylvania law is concerned—no contract exists with which a third
party can interfere. The at-will employment doctrine as adopted in Pennsylvania provides
that, generally, an “employer and employee each have the power to terminate the
employment relationship for any or no reason.” Weaver, 975 A.2d at 557 n.3. From this
doctrine, however, it does not follow that the at-will aspect of the employment relationship
renders the entirety of that relationship non-contractual. At a bare minimum, even in an
at-will employment scenario, an employer offers to pay an employee for work performed,
and the employee agrees to perform that work in exchange for that pay. Indeed, the
recognition of at-will employment as contractual is not controversial; as the Chief Justice
acknowledges, several jurisdictions recognize that at-will employment is contractual.
(Concurring and Dissenting Op. at 3 n.3 (Todd, C.J.).) We fail to see how Pennsylvania’s
at-will employment doctrine, which merely provides that the parties to the employment
relationship can terminate that relationship for any or no reason, negates the contractual
context of the other aspects of the employment relationship.
Relatedly, insofar as Chief Justice Todd disagrees with our decision on the ground
that, because there is no contract for continued employment in the at-will employment
context, there can be no breach for which a third party can be liable, we disagree that the
absence of such a breach precludes recognition of the tort theory we adopt today. This
Court has long recognized that recovery under this tort theory encompasses instances
beyond those involving a breach of contract. See, e.g., Birl, 167 A.2d at 474 (explaining
that tort “of inducing breach of contract or refusal to deal” applies when third party
improperly causes “person not to (a) perform a contract with another, or (b) enter into or
continue a business relation with another”). As we explain above, an at-will employee
and her employer have an expectation interest in the continuance of the at-will
employment relationship absent unlawful interference by a third party. That the employee
or employer can terminate the at-will employment relationship without incurring liability
themselves provides no defense for the third party against incurring liability for unlawfully
causing the termination of that relationship—because both an employer and employee
have an expectation interest that a third party will not so act.
Finally, Chief Justice Todd theorizes that the multifactored standards applicable
to, and fact-specific nature of, claims of third-party tortious interference with contractual
relations will have a significant and detrimental impact on Pennsylvania law in the at-will
employment realm. Preliminarily, we reiterate that our decision today recognizes a theory
of tort recovery against a third party that unlawfully interferes with the at-will employment
(continued…)
[J-4-2023] - 40
that they reached the opposite conclusion, and we overrule the Superior Court’s decision
in Hennessy and its progeny insomuch as they do the same. We further hold, however,
that an employee cannot successfully assert this type of claim against a coworker unless
the employee demonstrates, inter alia, that the coworker acted outside the scope of her
authority under the circumstances of the particular case, thereby rendering the coworker
a true third party, or stranger, to the at-will employment relationship. Finally, because
Salsberg failed to establish a genuine issue of material fact as to whether Mann acted
outside the scope of her authority such that Mann could be treated as a third party to
Salsberg’s at-will employment relationship with Drexel, the courts below did not err in
concluding that Mann was entitled to summary judgment on Salsberg’s claim. We,
therefore, affirm the order of the Superior Court, although we do so on different grounds.
Justices Donohue, Dougherty and Wecht join the opinion.
Justice Wecht files a concurring opinion in which Justice Donohue joins.
Chief Justice Todd files a concurring and dissenting opinion.
Justice Mundy files a concurring and dissenting opinion.
relationship between an employer and an employee. Our decision does not, and cannot,
expose an employer or an employee to liability as parties to the employment relationship
because, as demonstrated herein, neither the employer nor the employee can interfere
with their own at-will employment relationship. Moreover, while our decision opens an
avenue for recovery by an employee against another employee of the employer in the
at-will employment context, such recovery is permitted only when that other employee is,
inter alia, acting as a third party by engaging in conduct that falls outside the scope of her
employment—a concept not unfamiliar to the law or workplace. Respectfully, and for
these reasons, we decline to forego recognition of the tort of third-party intentional
interference with contractual relations in the at-will employment context based upon the
concerns raised by the Chief Justice.
[J-4-2023] - 41
Reference
- Status
- Published