Salsberg, C. v. Mann, D.

2021 Pa. Super. 185, 262 A.3d 1267

• Court: Superior Court of Pennsylvania
• Decided: September 15, 2021
• Docket: 623 EDA 2019
• Status: Published

Opinion

J-E01001-21

2021 PA Super 185

CARA SALSBERG : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : DONNA MANN AND DREXEL : No. 623 EDA 2019 UNIVERSITY :

Appeal from the Order Entered January 17, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 170603584

BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.

OPINION BY PANELLA, P.J.: FILED SEPTEMBER 15, 2021

Cara Salsberg appeals from the order entered in the Philadelphia County

Court of Common Pleas, granting summary judgment in favor of Donna Mann

and Drexel University. On appeal, Salsberg contends that the trial court erred

in granting judgment as a matter of law on her claim for intentional

interference with her at-will employment contract. We affirm.

Salsberg was hired by Drexel University as a tax accountant in the Office

of Tax Compliance, where she worked under the supervision of Mann. During

the course of her employment, Salsberg received mostly positive performance

reviews from Mann. Salsberg’s performance reviews often indicated that she

either met or exceeded expectations. As a result, Salsberg was promoted to

tax compliance manager. J-E01001-21

Shortly thereafter, the professional relationship between Salsberg and

Mann began to deteriorate. The parties dispute the reasons for, and the

circumstances of, this deterioration. Mann claims that Salsberg failed to

perform like a salary exempt manager, whereas Salsberg contends that

Mann’s erratic workplace behavior was responsible for the breakdown in their

professional relationship.

In the end, Mann and Human Resources collectively decided that

terminating Salsberg was the best course of action for the University. Mann

and a representative from Human Resources summoned Salsberg to a

meeting. At this meeting, Salsberg was notified of Drexel’s decision to

terminate her employment because of deficient job performance.

Following her discharge, Salsberg filed suit against Donna Mann and

Drexel University asserting three claims: (1) Mann had intentionally interfered

with her contractual relations with Drexel (2) Drexel had breached an implied

employment contract by firing her; and (3) both Drexel and Mann had

intentionally inflicted emotional distress on her through this process. Mann

and Drexel University filed a motion for summary judgment seeking the

dismissal of all counts. The trial court ultimately granted the motion in its

entirety and dismissed Salsberg’s complaint with prejudice. This timely appeal

followed.1

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1 The trial court did not order Salsberg to file a Pa.R.A.P. 1925(b) statement,

but did issue a Pa.R.A.P. 1925(a) opinion.

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On appeal, Salsberg’s only issue challenges the trial court’s grant of

summary judgment on her intentional interference claim. See Appellant’s

Brief at 5.

We review the grant of summary judgment to determine whether the

court erred in concluding the record indicates the moving party is entitled to

judgment as a matter of law:

In reviewing an order granting summary judgment, our scope of review is plenary, and our standard of review is the same as that applied by the trial court. Our Supreme Court has stated the applicable standard of review as follows: [A]n appellate court may reverse the entry of summary judgment only where it finds that the lower court erred in concluding that the matter presented no genuine issue as to any material fact and that it is clear that the moving party was entitled to a judgment as a matter of law. In making this assessment, we review the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. As our inquiry involves solely questions of law, our review is de novo.

[Therefore], our responsibility as an appellate court is to determine whether the record either establishes that the material facts are undisputed or contains insufficient evidence of facts to make out a prima facie cause of action, such that there is no issue to be decided by the fact-finder. If there is evidence that would allow a fact-finder to render a verdict in favor of the non-moving party, then summary judgment should be denied.

Gerber v. Piergrossi, 142 A.3d 854, 858 (Pa. Super. 2016) (citation

omitted).

As an initial matter, we note that Drexel University classified Salsberg

as an at-will employee. Neither party disputes this fact. The parties, however,

disagree as to whether Salsberg’s status as an at-will employee provides her

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with a claim against Mann for intentional interference with Salsberg’s

employment contract with Drexel.

Salsberg argues an at-will employment relationship does not defeat a

claim of intentional interference with that existing employment. See

Appellant’s Brief at 10. She contends that a claim of intentional interference

is cognizable under Pennsylvania law, even though the contract in issue is

terminable at the will of the parties. See id. To support her argument,

Salsberg relies on the Restatement (Second) of Torts § 766 and federal district

court decisions. Salsberg asserts that section 766 of the Restatement and

federal case law permits an action for intentional interference with the

performance of an at-will employment contract. See id., at 13-14.

In contrast, Mann argues that Pennsylvania law does not recognize

Salsberg’s claim for intentional interference with contractual relations. See

Appellee’s Brief at 14. Salsberg had an existing at-will employment

relationship with the University; therefore, Mann contends Salsberg’s claim

for intentional interference with a presently existing at-will relationship does

not fit within the scope of this cause-of-action. See id., at 16. Furthermore,

Mann asserts that Pennsylvania courts, as well as federal courts applying

Pennsylvania law, routinely reject claims based on alleged interference with

an existing at-will employment relationship. See id., at 19-20.

Our Supreme Court adopted the Restatement (Second) of Torts § 766

in Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 393 A.2d 1175,

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1182 (Pa. 1978). Section 766 of the Restatement defines the tort of intentional

interference with existing contractual relations and provides:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Rest. (2d) of Torts § 766.

To state a cause of action for intentional interference with contractual

relations, a plaintiff must prove the following elements:

(1) the existence of a contractual relationship between the complainant and a third party;

(2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship;

(3) the absence of privilege or justification on the part of the defendant; and

(4) the occasioning of actual damage as a result of defendant’s conduct.

Phillips v. Selig, 959 A.2d 420, 429 (Pa. Super. 2008) (quoting Rest. (2d) of

Torts § 766).

Here, as noted above, Salsberg’s argument relies primarily on § 766 of

the Restatement. She claims that the Restatement “does not restrict its

application to contracts of a certain kind, nor does it ever state that at-will

contracts are excluded from the coverage of § 766.” Appellant’s Brief at 14.

For that reason, Salsberg contends that there is no question that § 766 of the

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Restatement allows her to assert an action against Mann for intentional

interference with her existing at-will employment contract. See id.

While we agree with Salsberg’s assertions regarding the application of

section 766 to at-will employment contracts, we also recognize that Salsberg

overlooks the one crucial factor which goes to the heart of the instant appeal.

That is, a section 766 claim under existing Pennsylvania law applies only to

prospective at-will employment contracts, not existing ones.

This Court’s decision in Hennessey v. Santiago, 708 A.2d 1269, 1279

(Pa. Super. 1998) has been recognized as the controlling precedent on the

availability of a § 766 claim for an at-will employee. See Haun v. Cmty.

Health Sys., 13 A.3d 120, 125 n.1 (Pa. Super. 2011). In Hennessy, a former

at-will employee filed suit against her employer for wrongful discharge. The

former employee’s complaint also included a claim against a third-party for

interfering with her at-will employment relationship. The Hennessy Court

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.

Pennsylvania law distinguishes between claims for intentional

interference with prospective contractual relationships and existing

contractual relationships. As the respective names indicate, the primary

distinction between these torts lies in the first element. In distinction from a

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claim for interference with an existing contract, a claim for interference with

a prospective contractual relationship requires merely a showing of the

probability of a future contractual relationship. See Thompson Coal Co. v.

Pike Coal Co.412 A.2d 466, 471 (Pa. 1979).

Defining a prospective contractual relationship, however, is admittedly

problematic because the term has an evasive quality. See Phillips, 959 A.2d

at 428. Unlike an existing contractual relationship, a prospective contractual

relationship “is something less than a contractual right, something more than

a mere hope.” Thompson Coal Co., 412 A.2d at 471. “[A]nything that is

prospective in nature is necessarily uncertain.” Glenn v. Point Park College,

272 A.2d 895, 898-99 (Pa. 1971).

In this case, there was nothing prospective about Salsberg’s

employment relationship with Drexel. Salsberg had an existing at-will

employment contract, limited by implied terms. Without much explanation,

Hennessey held that this difference was critical; relief could be available for

interference with a prospective at-will relationship, but not for interference

with an existing at-will relationship.2

Although Salsberg does not explicitly challenge this Court’s holding in

Hennessy, her argument, in essence, asks us to overturn that panel’s

2 Whatever the impact of our reasoning is, it is undoubtedly true that this appeal does not concern a claim of interference with prospective contractual relationships.

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decision.3 In implicitly arguing for overruling Hennessy, Salsberg contends

that the plain language of § 766 envisioned the type of claim at issue in this

appeal. See Appellant’s Brief at 17.

The problem with Salsberg’s argument, however, is that any expectation

of continued at-will employment is nothing more than a mere hope: "In

Pennsylvania, absent a statutory or contractual provision to the contrary,

either party may terminate an employment relationship for any or no reason."

Mikhail v. Pa. Org. for Women in Early Recovery, 63 A.3d 313, 316 (Pa.

Super. 2013) (citation omitted).

Salsberg was an at-will employee in Drexel’s Office of Tax Compliance.

Because an at-will employee may be discharged at any time, for any reason,

or for no reason, Salsberg did not have any reasonable expectation of

continued employment guaranteed by contract. See Deal v. Children’s

Hospital of Philadelphia, 223 A.3d 705, 712 (Pa. Super. 2019) (observing

that an at-will employee may be fired at any time even for no reason). Our

Supreme Court has stated: “[There is] no common law cause of action against

an employer for termination of an at-will employment relationship.”

McLaughlin v. Gastrointestinal Specialists, Inc., 750 A.2d 283, 287 (Pa.

2000). However, the Supreme Court noted that there are exceptions to this

3 “It is well settled that this Court, sitting en banc, may overrule the decision

of a three-judge panel of this Court.” In re Adoption of K.M.G., 219 A.3d 662, 666 n.1 (Pa. Super. 2019) (citation omitted).

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general rule but in “only the most limited of circumstances, where discharges

of at-will employees would threaten clear mandates of public policy.” Weaver

v. Harpster, 975 A.2d 555, 562-63 (Pa. 2009), citing Clay v. Advanced

Computer Applications, Inc., 559 A.2d 917, 918 (Pa. 1989). Clearly, the

Supreme Court wishes to limit the impact of tort law on at-will employment.

While 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.” Thompson

Coal Co., 412 A.2d at 471. Therefore, while we recognize the tension in

Hennessy’s explicit reasoning, we nevertheless conclude that Salsberg failed

to state a cognizable claim for intentional interference with existing

contractual relations.

As a result, we decline to overturn Hennessey as it is consistent with

current Supreme Court decisions and affirm the trial court’s order dismissing

Salsberg’s complaint with prejudice.

Order affirmed.

Judges Bender, P. J. E., Lazarus, Nichols, Murray, and McLaughlin join

the opinion.

Judge Stabile files a dissenting opinion in which Judges Dubow and King

join.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/15/2021

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