[J-4-2023] [MO: Brobson, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

CARA SALSBERG,

Appellant

v.

DONNA MANN AND DREXEL 

UNIVERSITY,

Appellees

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No. 7 EAP 2022

Appeal from the Judgment of 

Superior Court entered on 

September 15, 2021 at No. 623 EDA 

2019 affirming the Order entered on 

January 17, 2019 in the Court of 

Common Pleas, Philadelphia 

County, Civil Division at No. 

170603584.

ARGUED: March 7, 2023

CONCURRING AND DISSENTING OPINION

CHIEF JUSTICE TODD DECIDED: February 21, 2024

The majority recognizes the tort of intentional interference with the performance of 

contract by a third party in the context of an at-will employment relationship. In doing so, 

however, the majority misapprehends our Commonwealth’s long-held view of the at-will 

employment doctrine by casting it as its opposite, as contractual. As well, the majority

underappreciates that the tort’s ambiguous, subjective, and unpredictable nature will

serve to weaken the at-will employment doctrine, bringing it closer to a de facto “just 

cause” standard, and discounts the negative effects its holding will have on Pennsylvania 

businesses. For the reasons that follow, I dissent from the adoption of this tort in the atwill employment setting, and, thus, respectfully, concur only in denying relief.

For over 150 years, Pennsylvania has assiduously preserved the utility and 

simplicity of the at-will employment doctrine, allowing only narrow exceptions involving 

matters implicating public policy. See, e.g., Weaver v. Harpster, 975 A.2d 555, 556 (Pa. 
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2009); Henry v. Pittsburg & L. E. R. Co., 21 A. 157, 157 (Pa. 1891); Peacock v. 

Cummings, 46 Pa. 434, 437 (Pa. 1864). An at-will employment relationship is of indefinite 

duration, and may be ended at any time ― by either party. Specifically, an employee can

leave his or her employment at any time and for any reason. Equally, an employer may 

discharge the employee at any time and for any reason, except if the reason violates a 

statutory prohibition or a recognized public policy. Weaver, 975 A.2d at 564.

Section 766 of the Restatement (Second) of Torts is entitled “Intentional 

Interference with Performance of Contract by Third Person.” Restatement (Second) of 

Torts § 766.1 Under the Restatement’s articulation of the tort, and our case law, recovery 

requires the satisfaction of four elements.

2

 The first element, consistent with the tort’s 

title, requires the existence of a contract between the complainant and a third party. In 

this context, that would require a contract between the employee and his employer. Thus, 

by name and requirement, the existence of a contract is central to the recognition of a 

cause of action for the intentional interference with the performance of a contract by a 

third party. As noted above, the at-will employment doctrine, foundationally, is not based 

upon a contractual relationship. Indeed, it is defined by the absence of a contract; a 

contract, or even an implied contract, strips an employer-employee relationship of its at1 Section 766 provides in full: “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.

2

In Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175, 1182 (Pa. 1978),

our Court set forth the elements to state a cause of action for intentional interference with 

contractual relations: (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.
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will status. See Weaver, 975 A.2d at 562 (“absent a statutory or contractual provision to 

the contrary, either party may terminate an employment relationship for any or no 

reason”); id. at 563 (“These cases demonstrate that the strong presumption of all noncontractual employment relations is at-will.”); Geary v. United States Steel Corporation,

319 A.2d 174, 176 (Pa. 1974) (“Absent a statutory or contractual provision to the contrary, 

the law has taken for granted the power of either party to terminate an employment 

relationship for any or no reason.”); Henry, 21 A. at 157 (“A railroad corporation, or an 

individual, may discharge an employe with or without cause at pleasure, unless restrained 

by some contract . . . .”). For this foundational reason, our Court should not recognize 

the tort of intentional interference with the performance of a contract by a third party in 

the context of an at-will employment relationship, as no contract exists to be interfered 

with.3

Related thereto, the tort’s second element under Section 766 requires the 

defendant to “induc[e] or otherwise caus[e] the third person not to perform the contract.” 

Our case law requires an intent by the defendant to harm the plaintiff by purposely causing 

“a third person not to [] perform a contract with” the plaintiff. Adler, 393 A.2d at 1182-83. 

What is the contract that Donna Mann allegedly induced the third party, Drexel University, 

not to perform? It must be a contract for continued employment. Indeed, that is the 

gravamen of Carl Salsberg’s complaint. Salsberg Complaint at ¶ 9 (“Defendant Mann . . 

. intentionally interfered with [Salsberg’s] employment contract with Drexel University 

which resulted in [Salsberg’s] termination.”); id. at ¶ 89 (“Mann acted in her own selfish 

capacity when she induced Drexel University to terminate [Salsberg’s] employment.”); id. 

3

I acknowledge that the Restatement (Second) of Torts and various states have 

conceptualized the at-will employment relationship as contractual, see, e.g., Majority 

Opinion at 22 n.13; however, as discussed herein, this is not the law in Pennsylvania.
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at ¶ 92 (“Defendant Mann was abusive, harassing, insulting and deliberately lied about 

[Salsberg’s] conduct for the sole purpose of terminating her.”).

Critically, however, under Pennsylvania’s articulation of the at-will employment 

doctrine, there can be no contract for continued employment. There is no prospective 

employment relationship, nor an expectation of one. Rather, the relationship is an 

indefinite one. As observed by the Superior Court, at-will employment offers “nothing 

more than a mere hope,” as either party may terminate the employment relationship at 

any time, for any or no reason ― literally on a whim. Salsberg v. Mann, 262 A.3d 1267, 

1271 (Pa. Super. 2021). That is the essence of the doctrine. Simply stated, interference 

with an employment relationship that is terminable at will cannot be actionable under an 

interference with contract theory because, when a party terminates such a relationship, 

there is no breach of contract. As such, it is impossible for an at-will employee to satisfy 

the tort’s second element of inducing or causing a third-party employer not to perform an 

employment contract ― again, there is no contract.

Indeed, it is for this reason that the theory that an employee possesses an 

expectation of continued employment until termination, see Majority Opinion at 24, which 

serves as the basis for the tort, must fail. An expectation interest is a legally recognizable 

interest, based upon contract, which is implicated in formulating a remedy for a breach of 

that contract. See Restatement (Second) of Contracts § 344 (1981) (“Judicial remedies 

under the rules stated in this Restatement serve to protect one or more of the following 

interests of a promisee: (a) his ‘expectation interest,’ which is his interest in having the 

benefit of his bargain by being put in as good a position as he would have been in had 

the contract been performed . . . .”); id. (“The law of contract remedies implements the 

policy in favor of allowing individuals to order their own affairs by making legally 

enforceable promises. Ordinarily, when a court concludes that there has been a breach 
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of contract, it enforces the broken promise by protecting the expectation that the injured 

party had when he made the contract.”); Trosky v. Civil Service Commission, City of 

Pittsburgh, 652 A.2d 813, 817 (Pa. 1995) (“In addressing the concept of remedies 

generally, we may note that in the law of contracts remedies for breach are designed to 

protect . . . a party's expectation interest ‘by attempting to put him in as good a position 

as he would have been had the contract been performed, that is, had there been no 

breach.’”). Thus, as there is no contract for continued employment under the at-will 

employment doctrine, there can be no expectation interest in continued employment

which can be thwarted.

Furthermore, injecting an expectation of continued employment into the at-will 

employment paradigm could alter, or at a minimum cloud, the employment rights of 

government employees, at least with respect to the right to a notice and hearing which 

hinges on the employee’s expectation interest. See Delliponti v. DeAngelis, 681 A.2d 

1261, 1263 (Pa. 1996) (“An individual employed by a government agency does not enjoy 

a property right in her employment unless she has an expectation of continued 

employment. . . . That expectation may be guaranteed by statute, contract, or be quasicontractual in nature. If the individual has such an expectation, she is entitled to notice 

and a hearing under Local Agency Law, 2 Pa.C.S. § 553. . . . If, however, the individual 

does not have an expectation of continued employment, she is an at-will employee who 

does not have a right to a hearing.” (citations omitted)).

Finally, the majority frankly acknowledges the danger of “eviscerating our at-will 

employment principles and stifling employers’ ability to structure and conduct their 

business as they choose,” Majority Opinion at 29-30, but hopes for a “limited impact” of 

this newly embraced tort on the at-will employment doctrine and urges our courts to be 

“vigilant” in this regard. Id. at 30, 31. Make no mistake, as set forth below, today’s 
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decision will have a significant impact on employment law in our Commonwealth, as the 

vast majority of workers in Pennsylvania are at-will.

First, the workplace requires clear guidelines as to acceptable and unacceptable 

conduct. Yet, the standard for recovery under the tort of intentional contractual 

interference is multi-factored, subjective, and depends upon the particular circumstances 

of a case, leaving officers, supervisors, and managers to guess as to what constitutes 

“improper” conduct (or “unprivileged” conduct in the majority’s parlance) and whether their 

actions are within their scope of employment or authority.

Regarding whether the challenged conduct is “improper,” this assessment is made 

by applying a multi-factor balancing test which includes considerations of “the nature of 

the actor’s conduct,” “motive,” “the interests sought to be advanced,” “social interests,” 

and concepts of “remoteness.”

4

 Restatement (Second) of Torts § 767. Regarding 

4 Section 767 of the Restatement provides:

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

(g) the relations between the parties.

(continued...)
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whether an officer, supervisor, or manager’s actions are within his or her scope of 

employment or authority, the majority adopts Restatement (Second) of Agency § 228. As 

with the definition of “improper” conduct, this “scope of employment” litmus lacks clarity, 

and is defined by a fact-specific, multi-factor, conjunctive test.

5

 Section 228 is fraught 

with subjectivity, implicating questions of what precisely is “authorized,” whether conduct 

is “substantially within” or “far beyond” time or space limits, and whether it is “too little 

actuated” by a purpose to serve the employer. Id. § 228. Both of these assessments ― 

requiring improper conduct and scope of employment or authority ― are situation-driven, 

amorphous, and subjective, and will lead to an increase in litigation, with most cases 

Restatement (Second) of Torts § 767. The Restatement commentary indicates that its 

drafters settled on the term “improper” as a “single word that will indicate for this tort the 

balancing process expressed by the two terms ‘culpable and not justified.’” Walnut St. 

Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 475 n.9 (Pa. 2011). The 

commentary adds that “Section 767 specifies and analyzes the factors to be taken into 

consideration in determining whether the interference is improper, and must therefore be 

read and applied to each of the earlier sections . . . . Sections 768–773 state specific 

applications of the factors set out in § 767 to certain types of factual patterns.” Id.

5 Section 228 provides:

(1) Conduct of a servant is within the scope of employment if, 

but only if:

(a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time 

and space limits;

(c) it is actuated, at least in part, by a purpose to serve 

the master, and

(d) if force is intentionally used by the servant against 

another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment 

if it is different in kind from that authorized, far beyond the 

authorized time or space limits, or too little actuated by a 

purpose to serve the master.

Restatement (Second) of Agency § 228.
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going to trial to resolve contested facts, placing a heavy burden on businesses and our 

judicial system.

Perhaps more importantly, as a result of this circumstance-driven and inherently 

ambiguous construct, the importation of this intentional interference tort has the potential 

to alter the freedom inherent in the at-will employment doctrine and shift it towards one 

where terminations are for only “just cause.” Specifically, because of the vagueness of 

the tort ― and the resulting uncertainty as to whether an officer, supervisor, or manager

is acting within his scope of employment or authority, or whether his conduct is improper 

or unprivileged ― and the threat of legal action, a supervisor, when considering an 

adverse employment action such as termination, will, as a practical matter, terminate an 

employee only for “just” reasons, i.e., a just cause discharge. This undermines the nature 

of the at-will employment doctrine, essentially transforming it into a de facto “just cause” 

framework, thereby curtailing an employer’s prerogative to discharge an employee for 

any reason. Whether imposing a just cause requirement for termination upon employers 

is desirable is debatable, but the creation of exceptions or alterations to the at-will 

employment doctrine are generally for the General Assembly and not for the courts.6

Moreover, the majority’s decision will not impact only employee terminations. An 

adverse employment action such as a demotion, suspension, or even a warning placed 

in an employee’s personnel file could serve as the basis for a cause of action under this

tort. The candid nature of performance evaluations will be chilled by the threat of litigation. 

6

In the at-will employment context, and with respect to the evolution of this common law 

doctrine, our Court has been clear that “it is for the legislature to formulate the public 

policies of the Commonwealth.” Weaver, 975 A.2d at 563. The right of a court to declare 

the common law as to public policy exists “only when a given policy is so obviously for or 

against public health, safety, morals, or welfare that there is a virtual unanimity of opinion 

in regard to it.” Id. (quoting Mamlin v. Genoe (City of Philadelphia Police Beneficiary 

Association), 17 A.2d 407, 409 (Pa. 1941)). Indeed, our Commonwealth's traditional view 

is “that exceptions to at-will employment should be few and carefully sculpted so as not 

to erode an employer's inherent right to operate its business as it chooses.” Id.
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A former employer responding to a new employer’s request for a job reference for a 

probationary employee will be hard pressed to give anything more than the dates of 

employment in light of a potential action for the intentional interference with contractual 

relations. Similarly, a former employer’s attempt to enforce a noncompete agreement 

through a demand that a competing employer terminate or alter a new employee’s status 

could subject the former employer to liability.

In summary, it is inconsistent with Pennsylvania’s at-will employment doctrine to 

allow for a contract-based tort of this nature, and the majority’s well-meaning attempt to 

inject it into the at-will employment context will not only shift the doctrine closer to a just 

cause framework, but will bring increased litigation and confusion to the workplace. For 

these reasons, I respectfully dissent from the majority’s adoption of the tort of the

intentional interference with the performance of a contract by a third party in the context 

of at-will employment. However, I concur in the result, as the majority ultimately denies 

relief to Salsberg, the plaintiff who advanced this theory of recovery below.