J-A13011-16

 2016 PA Super 244

SALSGIVER COMMUNICATIONS, INC., 

SALSGIVER TELECOM, INC., AND 

SALSGIVER, INC.,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

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.
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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.”1Id.

____________________________________________

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

interference with prospective contractual relations5in 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.
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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.
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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. 
J-A13011-16

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[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 
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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).
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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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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 
J-A13011-16

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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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(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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(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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(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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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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(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.
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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.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2016