J-A13011-16

                             2016 PA Super 244



SALSGIVER COMMUNICATIONS, INC.,                 IN THE SUPERIOR COURT OF
SALSGIVER TELECOM, INC., AND                          PENNSYLVANIA
SALSGIVER, INC.,

                         Appellants

                    v.

CONSOLIDATED COMMUNICATIONS
HOLDINGS, INC., NORTH PITTSBURGH
SYSTEMS, INC., AND NORTH
PITTSBURGH TELEPHONE COMPANY,
INC.,

                         Appellees                    No. 946 WDA 2015


                Appeal from the Judgment Entered June 2, 2015
              In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): G.D. 08-007616


BEFORE: OLSON, STABILE AND MUSMANNO, JJ.:

OPINION BY OLSON, J.:                           FILED NOVEMBER 10, 2016

      Appellants, Salsgiver Communications, Inc., Salsgiver Telecom, Inc.,

and Salsgiver, Inc., appeal from the June 2, 2015 judgment entered in favor

of   defendants,   Consolidated      Communications   Holdings,   Inc.,   North

Pittsburgh Systems, Inc., and North Pittsburgh Telephone Company, Inc.

(collectively “Defendants”). We affirm.

      On April 14, 2008, Appellants instituted the current action against

Defendants.     Appellants’ amended complaint sounded in trespass and

alleged that Defendants tortiously interfered with their existing and

prospective contractual relations.
J-A13011-16



        Within    Appellants’   amended        complaint,    Appellants    averred    that

Salsgiver Communications, Inc. (“Salsgiver Communications”) and Salsgiver

Telecom, Inc. (“Salsgiver Telecom”) are wholly-owned subsidiaries of

Salsgiver,       Inc.      Appellants      claimed     that,     under     the    Federal

Telecommunications Act of 1996, 47 U.S.C. §§ 151 et seq. (“the Act”),

Salsgiver Communications is a “cable television system operator” and

Salsgiver Telecom is a “telecommunications carrier.” Appellants’ Amended

Complaint, 8/4/08, at ¶¶ 1-4. Defendants own and maintain utility poles in

Western Pennsylvania. Id. at ¶ 6.

        According to Appellants, they “can provide [their cable television and

telecommunication] services to customers only by way of fiber optic cable[,]

which must be attached to utility poles en route to their destination.” Id. at

¶ 9.    In addition, under “[t]he Pole Attachment Section of the [Act] (47

U.S.C.     § 224)[,]    cable    television     system      operators,    like   Salsgiver

Communications, and telecommunications carriers, like Salsgiver Telecom,

must be granted access to those [utility] poles by utilities in their service

areas, such as [Defendants], which own the poles.”1 Id.
____________________________________________


1
    Section 224(f)(1) of the Act declares:

          A utility shall provide a cable television system or any
          telecommunications carrier with nondiscriminatory access to
          any pole, duct, conduit, or right-of-way owned or controlled
          by it.

47 U.S.C. § 224(f)(1).



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J-A13011-16



       Appellants      averred      that,      in   September   2004,   “Salsgiver

Communications entered into its first cable franchise agreement with a

municipality, the Borough of Freeport, Armstrong County.”           Id. at ¶ 17A.

Under the agreement with Freeport, Salsgiver Communications is obliged to

provide “cable television programming and other cable services” to Freeport,

for a period of at least 50 years. Id. at ¶ 22D.

       As Appellants alleged, the cable franchise agreement with Freeport

“entitled Salsgiver Communications to pole access as a ‘cable television

system’ under § 224 of the Act.”2 Id. at ¶ 17A. Therefore, in October 2004,

Salsgiver Communications “formally requested, in writing, access to the

telephone poles owned by Defendants,” so that Salsgiver Communications

could provide cable television services to its existing and prospective

customers. Id. at ¶ 11. Nevertheless, Appellants claimed:

         knowing that such conduct would harm Salsgiver
         Communications’ existing and prospective contractual
         relations with its customers, . . . [Defendants] repeatedly
         refused to allow Salsgiver Communications to attach to its
         poles, despite the fact that Salsgiver Communications also
         entered into cable franchise agreements with Buffalo
         Township on December 31, 2004[] and with Harrison
         Township on April 26, 2006.

Id. at ¶ 17C.

____________________________________________


2
 On November 26, 2007, the Federal Communications Commission (“FCC”)
declared that Salsgiver Communications was a “cable television system”
under the Act. Appellants’ Amended Complaint, 8/4/08, at ¶ 20.




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J-A13011-16



       Appellants alleged that Defendants’ actions were intentional and

harmed     Salsgiver    Communications’        reputation,   as   well   as   “Salsgiver

Communications’ existing and prospective contractual relations with its

customers.” Id. at ¶¶ 17C and 23.

       Appellants also claimed that, in 2005, “the Pennsylvania Public Utilities

Commission [] provisionally approved Salsgiver Telecom’s application to

provide telecommunications services” in Pennsylvania.             Id. at ¶ 28A.     The

approval “entitle[d] Salsgiver Telecom to pole access as a [‘Competitive

Access Provider’] under § 224 of the Act.”3           Id. at ¶ 28A.      Therefore, in

October 2005, Salsgiver Telecom requested, in writing, access to the

telephone poles owned by Defendants, so that Salsgiver Telecom could

provide telephone services to its existing and prospective customers. Id. at

¶ 12. However, Defendants “repeatedly refused to allow Salsgiver Telecom

to attach to their poles.” Id. at ¶ 28C. Appellants alleged that Defendants’

“willful, intentional[,] and negligent behavior” tortiously caused harm to

Salsgiver Telecom’s reputation and caused Salsgiver Telecom to lose

potential profits. Id. at ¶ 31.

       Prior to trial, Defendants filed a motion for summary judgment and

claimed, amongst other things, that the two-year statute of limitations
____________________________________________


3
   On May 23, 2007, the FCC declared that Salsgiver Telecom was a
“telecommunications carrier” under the Act.   Appellants’ Amended
Complaint, 8/4/08, at ¶ 30.




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J-A13011-16



barred Appellants’ claims.         Defendants’ Motion for Summary Judgment,

6/18/12, at ¶ 15. On February 12, 2013, the trial court entered an order

partially granting Defendants’ summary judgment motion and declaring that

“the two-year statute of limitations bars [Appellants’] claims [] for alleged

tortious conduct occurring prior to April 14, 2006.”     Trial Court Opinion,

2/12/13, at 3; Trial Court Order, 2/12/13, at 1.

       The case proceeded to a jury trial and, during trial, Defendants

introduced evidence that they did not allow Appellants utility pole access

because Defendants’ attorneys concluded that Appellants were neither a

“cable television system operator” nor a “telecommunications carrier,” as

defined under the Act. N.T. Deposition of Kevin Albaugh, 5/1/15, at 6 and

16 (introduced into evidence on May 8, 2015). Therefore, according to the

Defendants, they believed that Appellants were ineligible to receive utility

pole attachments. Id. at 11.

       The evidentiary portion of the trial concluded on May 13, 2015. The

next morning, the trial court heard argument on the parties’ proposed jury

instructions.4     As is relevant to the current appeal, during argument,

Appellants objected to two proposed jury instructions that were proffered by

Defendants. First, Appellants objected to Defendants’ proposed instruction
____________________________________________


4
 Defendants’ proposed jury instructions are attached to the certified record;
however, Appellants’ proposed jury instructions are not included in the
certified record.




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J-A13011-16



that Defendants “cannot be liable to [Appellants] for interference with a

prospective contract if [the jury finds] that the Defendants, in good faith,

were asserting a legally protected interest of their own.” See Defendants’

Proposed Jury Instructions, 5/13/15, at 9; N.T. Trial, 5/14/15, at 687-689.

According to Appellants, this instruction was improper because Pennsylvania

case law “does not . . . encompass any explicit good faith test in the context

of intentional interference with contractual relations” and because “the term

‘legally protected interest’ is kind of confusing to the jury.”    N.T. Trial,

5/14/15, at 688-689. The trial court agreed that the term “legally protected

interest” was confusing and thus “knock[ed] out” that part of the instruction.

Id. at 690. However, the trial court declared that it would instruct the jury

on “good faith.” Id.

      Second, Appellants objected to Defendants’ proposed jury instruction

regarding “mitigation of damages.”    Id. at 691.   According to Appellants,

“there was not much testimony at all” about how Appellants could have

mitigated their damages in this case and “the jury [would] really [have] no

context within which to view [the mitigation] instruction.” Id. at 692. The

trial court disagreed with Appellants, holding that it was “up to the

determination of the jury [] to determine whether or not there was

mitigation and whether or not [Appellants] did it and whether or not it was

reasonable.” Id. at 699.




                                     -6-
J-A13011-16



       The trial court then instructed the jury on the tort of intentional

interference with prospective contractual relations5 in the following manner:

         One who intentionally induces or otherwise intentionally
         prevents another from entering into a prospective business
         relationship with a third person or makes the entry into that
         business relationship more expensive is responsible for the
         loss that person or company suffered as a result of the
         prevention or interference with such prospective business
         relationship.

         In order to succeed on this claim for tortious interference
         with prospective business relations, the Plaintiff must prove
         by a preponderance of the evidence, [number one,] the
         existence of a prospective contractual or business relation
         between the Plaintiffs and a third party; [number two],
         purposeful action on the part of the Defendants intended to
         interfere with or prevent the prospective relation from
         occurring; [number three], the absence of privilege or
         justification on the part of the Defendants; and [number
         four], the occasioning of actual legal damage as a result of
         the Defendants’ conduct.

         These items are called the elements of Plaintiffs’ claim. The
         term “prospective business relationship” includes any
         prospective relationship leading to potentially profitable
         contracts.    A prospective relationship is less than a
         contractual right, but more than a mere hope.

         Plaintiffs must have had a realistic expectation that they
         would have entered into a contractual relationship with
         residential and business customers purchasing Plaintiffs’
         services.

         The tort of intentional interference with prospective
         business relations requires Plaintiffs to prove by a fair
____________________________________________


5
  The trial court did not instruct the jury on intentional interference with
existing contractual relations.




                                           -7-
J-A13011-16


       preponderance of the evidence that the interference was
       intentional and improper.

       The term “intent” or “intentional” is not limited to
       consequences which are desired. If the actor knows that
       the consequences are certain or substantially certain to
       result from his act and still goes ahead, he is treated by the
       law as if he had, in fact, desired to produce the result.

       If the Defendants did not have that intent, that conduct
       does not subject them to liability to the Plaintiffs. If the
       Defendants’ conduct was for a purpose other than
       interference with the Plaintiffs’ prospective contractual
       relations, you may take that into consideration in your
       determination of whether the Defendants intended any
       interference.

       Intent to interfere does not require proof of ill will towards
       the Plaintiffs. Defendants may be liable even if they act
       with no desire to harm the Plaintiffs.

       With respect to the propriety of Defendants’ conduct, it is
       up to you to determine . . . whether the conduct of the
       Defendants was improper in connection with those items
       complained of by the Plaintiffs.

       In order to determine whether the Defendants’ conduct is
       improper, you should consider the following factors:
       [number one], the nature of Defendants’ conduct; [number
       two], the Defendants’ motive; [number three], the interest
       of the Plaintiff with which the Defendants’ conduct allegedly
       interfered; [number four], the interest of the Defendants
       which they sought to advance by their conduct and whether
       Defendants advanced it in good faith, the social interest in
       protecting the freedom of action of the Defendants, the
       contractual interest of the Plaintiffs, the proximity or
       remoteness of the Defendants’ conduct of the interference
       and the relationship between the parties in question.

       You may consider society’s interest in protecting business
       competition as well as its interest in protecting the
       individual against interference with his or her pursuance of
       gains.


                                   -8-
J-A13011-16



Id. at 786-789.

        With respect to mitigation of damages, the trial court instructed the

jury:

          The law requires a person who is injured by another to take
          all reasonable steps to minimize the damages.           The
          Defendants have the burden of proving that the Plaintiffs
          failed to act to take such steps and that some damages
          could have been avoided.

Id. at 792.

        Before the jury retired, Appellants “renew[ed] the same [exceptions

they made] in chambers beforehand” and the trial court declared: “Okay.

That’s on the record. Okay. Exceptions noted.” Id. at 795.

        On May 14, 2015, the jury rendered its verdict:           it found that

Defendants did not “intentionally interfere[] with [Appellants’] contractual

relations or prospective contractual relations.” Id. at 805. The verdict was

entered on May 15, 2015 and, after the trial court denied Appellants’ timely

post-trial motion,6 Appellants filed a timely notice of appeal to this Court.

Appellants raise two issues on appeal:

          [1.] Whether the trial court erred when it instructed the jury
          that it could consider, in connection with the propriety of
          Defendants’ conduct in a tortious interference with business
          relations case, whether Defendants acted in good faith?


____________________________________________


6
 Appellants filed their post-trial motion on Tuesday, May 26, 2015.        The
motion was timely because Monday, May 25, 2015 was Memorial Day.




                                           -9-
J-A13011-16


         [2.] Whether the trial court erred in instructing the jury on
         mitigation of damages?

Appellants’ Brief at 4 (some internal capitalization omitted).

      Our standard of review when considering the adequacy of jury

instructions in a civil case is to determine whether the trial court committed

a clear abuse of discretion or error of law controlling the outcome of the

case. Pringle v. Rapaport, 980 A.2d 159, 165 (Pa. Super. 2009) (citation

omitted). “It is only when the charge as a whole is inadequate or not clear

or has a tendency to mislead or confuse[,] rather than clarify a material

issue[,] that error in a charge will be found to be a sufficient basis for the

award    of   a   new   trial.”   Id.   (quotation   and    citation   omitted);

Commonwealth v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009) (“[a] charge

will be found adequate unless the issues are not made clear, the jury was

misled by the instructions, or there was an omission from the charge

amounting to a fundamental error”). Further:

         [i]n reviewing a trial judge’s charge, the proper test is not
         whether certain portions taken out of context appear
         erroneous. We look to the charge in its entirety, against the
         background of the evidence in the particular case, to
         determine whether or not error was committed and whether
         that error was prejudicial to the complaining party.

Reilly by Reilly v. S.E. Pa. Transp. Auth., 489 A.2d 1291, 1305 (Pa.

1985).

      Appellants claim that the trial court erred “when it instructed the jury

that it could consider, in connection with the propriety of Defendants’

conduct . . . , whether Defendants acted in good faith.” Appellants’ Brief at


                                     - 10 -
J-A13011-16



12 (some internal capitalization omitted).            According to Appellants, the

instruction was erroneous because Pennsylvania does not recognize a good

faith   “defense”    to   tortious    interference   with   prospective    contractual

relations.7 Id. This claim fails.

        At the outset, the trial court did not instruct the jury that there was a

good faith “defense” to the tort of intentional interference with prospective

contractual relations. Rather, the trial court instructed the jury that one of

the eight factors that the jury should consider “to determine whether

the Defendants’ conduct [was] improper” was “the interest of the

Defendants which they sought to advance by their conduct and whether

Defendants advanced it in good faith.”             N.T. Trial, 5/14/15, at 788-789.

Further, as will be explained below, the impropriety of Defendants’

interference was an element of Appellants’ cause of action.               See Empire
____________________________________________


7
  Within Appellants’ brief to this Court, Appellants also argue that the trial
court’s “good faith” instruction was confusing and that the trial court “should
have [] limited [its instruction] to the clear elements of the cause of action.”
Appellants’ Brief at 14-15. Appellants did not levy this specific objection at
trial. Indeed, to the extent Appellants claimed any portion of the charge was
confusing, Appellants’ argument at the charging conference was limited to
the claim that “the term ‘legally protected interest’ [was] kind of confusing
to the jury.” N.T. Trial, 5/14/15, at 688-689. Moreover, during the charging
conference, the trial court sustained that specific objection and, during its
charge, the trial court did not instruct the jury on the term “legally protected
interest.” Id. at 690. Therefore, Appellants’ current claim regarding the
trial court’s “confusing” good faith instruction is waived. Takes v. Metro.
Edison Co., 695 A.2d 397, 399-400 (Pa. 1997) (holding that the failure “to
timely and specifically object to [an allegedly] erroneous [jury] charge”
waives the issue on appeal).




                                          - 11 -
J-A13011-16



Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923 (Pa. Super.

2013) (“[t]hus, in order to succeed in a cause of action for tortious

interference with a contract, a plaintiff must prove not only that a defendant

acted intentionally to harm the plaintiff, but also that those actions were

improper”); see also N.T. Trial, 5/14/15, at 787 (“[t]he tort of intentional

interference with prospective business relations requires Plaintiffs to prove

by a fair preponderance of the evidence that the interference was intentional

and improper”).

      The trial court thus instructed the jury to determine whether

Defendants’ alleged interference was “improper” and to do so by engaging in

a multi-factor balancing test. The court further instructed the jury that one

of the factors they should consider and balance was “the interest of the

Defendants which they sought to advance by their conduct and whether

Defendants advanced it in good faith.” N.T. Trial, 5/14/15, at 788-789. As

such, Appellants’ characterization of the trial court’s instruction in this case

is simply incorrect. The trial court did not instruct the jury that there was a

good faith defense to the tort. Instead, the challenged instruction involved

one part of one factor of a multi-factor balancing test that the jury had to

consider and weigh (with the other factors), to determine whether

Appellants satisfied their burden of persuasion concerning an element of

their cause of action.

      Moreover, the trial court’s instruction on the issue was consistent with

Pennsylvania law.

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J-A13011-16



      The tort of intentional interference with existing or prospective

contractual relations seeks a balance between “two fundamental principles

underlying the American legal and economic systems:”

           On the one hand, the fundamental premise of capitalism is
           that all market participants should be free to pursue their
           economic self-interest (which will, in turn, create the
           greatest macroeconomic benefit to all participants) without
           interference from excessive government regulation. On the
           other hand, the American legal system enforces stability of
           contract, protects against wrongful predatory conduct, and
           thereby encourages economic investment and growth.
           These competing principles conflict when self-interested or
           competitive conduct is perceived as unfair, crossing the line
           into tortious interference with another’s contracts or
           economic expectancies.

Kevin M. Shelley & David W. Oppenheim, When Conflicting Principles Collide:

The Uncharted Boundary Between Fair Competition and Tortious Conduct, 22

FRANCHISE L.J. 184, 184-185 (2003).

      Thus, although the American economic and legal systems place

tremendous value upon, and seek to safeguard, a person’s right to “compete

or protect his business interests in a fair and lawful manner,” the tort of

interference with contractual relations “draws a line beyond which an

individual may not go in intentionally interfering with the business affairs of

others.”     Stuart M. Speiser, Charles F. Krause, & Alfred W. Gans, THE

AMERICAN LAW    OF   TORTS, § 31.38 (1991); see also Walnut Street Assocs.,

Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 475 (Pa. 2011) (“[o]urs is

a free society where citizens may freely interact and exchange information.

Tortious interference, as a basis for civil liability, does not operate to burden


                                      - 13 -
J-A13011-16



such interactions, but rather, to attach a reasonable consequence when the

defendant’s intentional interference was ‘improper’”).

       This Court has declared:

         The requisite elements of a cause of action for interference
         with prospective contractual relations are as follows:

              (1) a prospective contractual relationship;

              (2) the purpose or intent to harm the plaintiff by
              preventing the relation from occurring;

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

              (4) the occasioning of actual damage resulting from the
              defendant's conduct.

Foster v. UPMC South Side Hosp., 2 A.3d 655, 665 (Pa. Super. 2010)

(internal quotations and citations omitted).8
____________________________________________


8
  As noted, this Court in Foster defined the tort of interference with
prospective contractual relations as requiring “the absence of privilege or
justification on the part of the defendant.” Foster, 2 A.3d at 665. All of the
precedent we found declares that “the absence of privilege or justification on
the part of the defendant” is an element of the tort of interference with
prospective contractual relations. However, the phrase is antiquated and
does not align with the Second Restatement of Torts.

Pennsylvania recognized the tort of interference with prospective contractual
relations since at least the time of the First Restatement of Torts. See
Glenn v. Point Park Coll., 272 A.2d 895, 897 (Pa. 1971). The First
Restatement defined the torts of interference with existing and prospective
contractual relations in one section – Section 766. The torts were defined, in
relevant part, as follows:

         . . . one who, without a privilege to do so, induces or
         otherwise purposely causes a third person not to
(Footnote Continued Next Page)


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J-A13011-16


                       _______________________
(Footnote Continued)


         (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.

Restatement (First) of Torts § 766 (emphasis added).

The Pennsylvania Supreme Court adopted Section 766 of the First
Restatement and held that, to plead a prima facie case for interference with
prospective contractual relations, a plaintiff must plead: “(1) a prospective
contractual relation between [the third party] and plaintiff[], (2) the purpose
or intent to harm plaintiff by preventing the relationship from occurring, (3)
the absence of privilege or justification on the part of the
[defendant], and (4) the occurrence of actual harm or damage to plaintiff
as a result of the [defendant’s] conduct.”         Glenn, 272 A.2d at 898
(emphasis added); see also Thompson Coal Co. v. Pike Coal Co., 412
A.2d 466, 471 (Pa. 1979).

However, courts around the country had difficulty applying the element of
“absence of privilege or justification.” See Restatement (Second) of Torts at
Introductory Note to Chapter 37. Specifically, courts diverged on the issue
of whether the plaintiff or the defendant had the burden of pleading and
proving “the absence of privilege or justification” and courts had difficulty
defining the term “justification.” Id.Subnote.A

    Subnote.A: The Pennsylvania Supreme Court held that the plaintiff had
    the burden of pleading and proving “the absence of privilege or
    justification” on the part of the defendant. See Glenn, 272 A.2d at 900
    (holding that the plaintiff failed to plead a prima facie case because “the
    complaint as presently drafted does not negate the existence of privilege
    on the part of defendant”); see also Gresh v. Potter McCune Co., 344
    A.2d 540, 542 (Pa. Super. 1975) (“[t]he presence of a privilege is not an
    affirmative defense, rather the absence of such a privilege is an element
    of the cause of action which must be pleaded and proved by the
    plaintiff”) (internal citations and quotations omitted); see also Birl v.
    Phila. Electric Co., 167 A.2d 472, 474 (Pa. 1960) (the plaintiff must
    plead that the defendant’s act is “unprivileged”).



(Footnote Continued Next Page)


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J-A13011-16



                       _______________________
(Footnote Continued)

Therefore, in 1979, the American Law Institute propounded the Second
Restatement of Torts and defined the tort in terms of an “improper”
interference. See Restatement (Second) of Torts § 767 cmt. b (“[u]nlike
other intentional torts . . . [the tort of interference with contractual
relations] has not developed a crystallized set of definite rules as to the
existence or non-existence of a privilege to act. . . . Because of this fact,
[Section 767] is expressed in terms of whether the interference is improper
or not, rather than in terms of whether there was a specific privilege to act
in the manner specified”). In particular, the Second Restatement defines
the tort of intentional interference with prospective contractual relations as
follows:

         One who intentionally and improperly interferes with
         another's prospective contractual relation (except a contract
         to marry) is subject to liability to the other for the pecuniary
         harm resulting from loss of the benefits of the relation,
         whether the interference consists of

             (a) inducing or otherwise causing a third person not to
             enter into or continue the prospective relation or

             (b) preventing the other from acquiring or continuing
             the prospective relation.

Restatement (Second) of Torts § 766B (emphasis added).

The Pennsylvania Supreme Court has not explicitly adopted Section 766B of
the Second Restatement. Nevertheless, both the Supreme Court and this
Court have held that Restatement (Second) of Torts § 766 correctly restates
Pennsylvania law regarding interference with existing contractual relations.
Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175,
1183 (Pa. 1978) (“[a]n examination of this case in light of Restatement
(Second) of Torts, § 766 [defining the tort of interference with existing
contractual relations], reveals that the sole dispute is whether appellees’
conduct is ‘improper’”); Walnut Street Assocs., 20 A.3d at 478 (“[t]he
question [in the case] is whether [the defendant’s] intentional interference
with [appellant’s] contract was improper, and thus actionable”); Sears,
Roebuck & Co. v. 69th St. Retail Mall, L.P., 126 A.3d 959, 979 (Pa.
Super. 2015) (“Pennsylvania law follows the Restatement (Second) of Torts
§ 766’s standard for intentional interference with contractual relations”).
Section 766 is written similarly to Section 766B and declares:
(Footnote Continued Next Page)


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J-A13011-16



                       _______________________
(Footnote Continued)


         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.

Restatement (Second) of Torts § 766.

In addition, both this Court and the Pennsylvania Supreme Court have held
that Section 767 of the Second Restatement correctly restates the law of the
Commonwealth – and Section 767 explicitly focuses upon the factors that
should be considered in determining whether certain conduct is “improper.”
Adler, Barish, Daniels, Levin & Creskoff, 393 A.2d at 1184 (analyzing
the propriety of the defendant’s conduct by considering the factors listed in
Section 767); Ruffing v. 84 Lumber Co., 600 A.2d 545, 549-550 (Pa.
Super. 1991) (same). Finally, even though this Court continues to utilize
the phrase “the absence of privilege or justification on the part of the
defendant” to define the tort of interference with prospective contractual
relations, a careful review of our decisions shows that this Court simply
equates “the absence of privilege or justification on the part of the
defendant” with the term “improper.” Empire Trucking, 71 A.3d at 934
(“the third element [of the tort] requires a showing that [defendant’s]
actions were not privileged. Thus, in order to succeed in a cause of action
for tortious interference with a contract, a plaintiff must prove not only that
a defendant acted intentionally to harm the plaintiff, but also that those
actions were improper. In determining whether a defendant’s actions were
improper, the trial court must take into account the [] factors listed in
Restatement (Second) of Torts section 767”) (some internal citations
omitted).

Given that this Court equates “impropriety” with “the absence of privilege or
justification on the part of the defendant” – and given that all of our recent
precedent continues to utilize the phrase “the absence of privilege or
justification on the part of the defendant” to describe the third element of
the tort – we also use the phrase in this opinion. Nevertheless, at some
point, this Court should stop using the antiquated phrase that originated in
the First Restatement of Torts and begin using the verbiage that appears in
(Footnote Continued Next Page)


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J-A13011-16



      Further, as this Court has held:

         the third element [of the tort] requires a showing that
         [defendant’s] actions were not privileged. Thus, in order to
         succeed in a cause of action for tortious interference with a
         contract, a plaintiff must prove not only that a defendant
         acted intentionally to harm the plaintiff, but also that those
         actions were improper.           In determining whether a
         defendant’s actions were improper, the trial court must take
         into account the [] factors listed in Restatement (Second) of
         Torts section 767.

Empire Trucking, 71 A.3d at 934 (some internal citations omitted).

      Section    767      of   the   Second      Restatement,   entitled   “Factors   in

Determining Whether Interference is Improper,” declares:

         In determining whether an actor's conduct in intentionally
         interfering with a contract or a prospective contractual
         relation of another is improper or not, consideration is given
         to the following factors:

             (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 social interests in protecting the freedom of
             action of the actor and the contractual interests of the
             other,

             (f) the proximity or remoteness of the actor's conduct to
             the interference and
                       _______________________
(Footnote Continued)

the Second Restatement, which, as we have said, accurately reflects the law
of this Commonwealth.



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              (g) the relations between the parties.

Restatement (Second) of Torts § 767.

       The trial court in this case instructed the jury on all of the Section 767

factors.    See N.T. Trial, 5/14/15, at 788-789.       Moreover, when the trial

court instructed the jury on the fourth factor – “the interests sought to be

advanced by the [defendant]” – the trial court included a “good faith”

element.     Specifically, the trial court instructed the jury that they should

consider “the interest of the Defendants which they sought to advance by

their conduct and whether Defendants advanced it in good faith.” Id.

       Appellants now claim that the inclusion of the “good faith” language

“fatally prejudiced” them and requires that we vacate the judgment and

remand for a new trial. Appellants’ Brief at 12. We disagree.

       Read fairly, the trial court merely asked the jury to consider the

interests the Defendants sought to advance and to consider also whether

the means the Defendants utilized to advance their interests were in good

faith – i.e. whether the Defendants advanced their interest with a “state of

mind consisting in . . . observance of reasonable commercial standards of

fair dealing in [the] given trade or business.”9 BLACK’S LAW DICTIONARY 713
____________________________________________


9
 We note that Restatement (Second) of Torts § 773 provides a defense for
an individual who asserts a bona fide claim. Section 773 declares:

           One who, by asserting in good faith a legally protected
           interest of his own or threatening in good faith to protect
           the interest by appropriate means, intentionally causes a
(Footnote Continued Next Page)


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J-A13011-16



(8th ed. 2004). As such, the trial court’s instruction that the jury consider

“whether Defendants advanced [their interests] in good faith” merely asked

the jury to consider the “nature” of the Defendants’ conduct. Section 767

explicitly lists “[t]he nature of the [defendant’s] conduct” as a factor that

must be considered in “determining whether an actor's conduct in

intentionally interfering with a contract or a prospective contractual relation

of another is improper.”           Restatement (Second) of Torts § 767.   As the

comment to Section 767 declares:

         The nature of the actor's conduct is a chief factor in
         determining whether the conduct is improper or not, despite
         its harm to the other person. The variety of means by
         which the actor may cause the harm are stated in § 766,
         Comments k to n. Some of them, like fraud and physical
         violence, are tortious to the person immediately affected by
         them; others, like persuasion and offers of benefits, are not
         tortious to him. Under the same circumstances interference
         by some means is not improper while interference by other
         means is improper; and, likewise, the same means may be
         permissible under some circumstances while wrongful in
         others. The issue is not simply whether the actor is justified
         in causing the harm, but rather whether he is justified in
         causing it in the manner in which he does cause it. The
                       _______________________
(Footnote Continued)

         third person not to perform an existing contract or enter
         into a prospective contractual relation with another does not
         interfere improperly with the other's relation if the actor
         believes that his interest may otherwise be impaired or
         destroyed by the performance of the contract or
         transaction.


Restatement (Second) of Torts § 773. However, the trial court did not
instruct the jury on Section 773 of the Second Restatement of Torts.




                                           - 20 -
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       propriety of the means is not, however, determined as a
       separate issue unrelated to the other factors.       On the
       contrary, the propriety is determined in the light of all the
       factors present.      Thus physical violence, fraudulent
       misrepresentation and threats of illegal conduct are
       ordinarily wrongful means and subject their user to liability
       even though he is free to accomplish the same result by
       more suitable means. A, C's competitor for B's business,
       may justifiably induce B by permissible means not to buy
       from C []; he is not justified in doing so by the predatory
       means stated above. Yet even these means are not always
       forbidden. The relation between the actor and the person
       induced, and the object sought to be accomplished by the
       actor, may be such as to warrant even physical violence.
       For example, C operates a gambling den in the rear room of
       his ice cream parlor. B's parent, A, having the privilege of
       corporal punishment, may exercise that privilege in order to
       cause B not to patronize C's ice cream parlor. This may
       also be the case between an institution and its inmates.
       The nature of the means is, however, only one factor in
       determining whether the interference is improper. Under
       some circumstances the interference is improper even
       though innocent means are employed.

Restatement (Second) of Torts § 767 cmt. c.

     Or, in the words of the Pennsylvania Supreme Court:

       The absence of privilege or justification in the tort [of
       interference with prospective contractual relations] is
       closely related to the element of intent. As stated by
       Harper & James, The Law of Torts, § 6.11, at 513: “where,
       as in most cases, the defendant acts at least in part for the
       purpose of protecting some legitimate interest which
       conflicts with that of the plaintiff, a line must be drawn and
       the interests evaluated. This process results in according or
       denying a privilege which, in turn, determines liability.”
       What is or is not privileged conduct in a given situation is
       not susceptible of precise definition. Harper & James refer
       in general to interferences which “are sanctioned by the
       ‘rules of the game’ which society has adopted”, and to “the
       area of socially acceptable conduct which the law regards as
       privileged.”



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Glenn, 272 A.2d at 899 (some internal corrections omitted).

      In the case at bar, by instructing the jury that they must consider

“whether Defendants advanced [their interests] in good faith,” the trial court

was simply instructing the jury to consider whether Defendants acted in such

a way that was “sanctioned by the ‘rules of the game’ which society has

adopted.” Id. Therefore, the instruction was consistent with Pennsylvania

law and did not amount to an abuse of discretion.          Appellants’ claim on

appeal fails.

      For Appellants’ second argument on appeal, Appellants contend that

the trial court erred when it instructed the jury on mitigation of damages.

However, in this case, the jury found that Defendants were not liable.

Therefore, even if the trial court erred in instructing the jury on mitigation of

damages, the alleged error would be harmless. See Goldstein v. Aronson,

76 A.2d 217, 219 (Pa. 1950) (“[t]he instruction of the court was, therefore,

erroneous but it affected only the measure of damages. The verdict of the

jury against appellant made the question unimportant and the error

harmless”).     As such, Appellants’ second claim on appeal does not entitle

them to relief.

      Judgment affirmed. Jurisdiction relinquished.




                                     - 22 -
J-A13011-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2016




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