Salsberg, C. v. Mann, D. ( 2021 )

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2021 PA Super 185CARA 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.
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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
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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
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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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