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BIRL v. PHILADELPHIA ELECTRIC CO. (03/22/60)

March 22, 1960

BIRL, APPELLANT,
v.
PHILADELPHIA ELECTRIC CO.



Appeal, No. 238, Jan. T., 1959, from order of Court of Common Pleas No. 1 of Philadelphia County, Dec. T., 1958, No. 882, in case of Joseph J. Birl v. Philadelphia Electric Company et al. Order reversed.

COUNSEL

Ronald N. Rutenberg, with him Harry A. Rutenberg, for appellant.

Michael A. Foley, for appellees.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 402 Pa. Page 299]

OPINION BY MR. JUSTICE BENJAMIN R. JONES.

This appeal is from a final order of the Court of Common Pleas No. 1 of Philadelphia County in a trespass action, said order having sustained appellees' preliminary objections and dismissed appellant's complaint.*fn1

Joseph J. Birl, appellant, instituted a trespass action against the Philadelphia Electric Company (herein called Company) and Hunter Lott (herein called Lott) in which Birl charged that the Company, acting through Lott, its sales manager, had "falsely and maliciously" induced the Eureka Williams Corporation (herein called Eureka) to dismiss Birl from his employment as Eureka's assistant branch manager and branch manager-to-be in Philadelphia.

Birl's complaint contained two counts: the first count alleged that, on or about January 30, 1958, Lott, acting as the Company's sales manager, advised Eureka that the Company would not allow Birl "to contact, deal or do business" with it because Birl had left the Company's employment nine years earlier without giving written notice to the Company; the second count alleged that Lott, acting within the scope of his employment by the Company, had slandered Birl by telling his superior and other persons that Birl had left his former employment with the Company in 1951 without giving notice.

[ 402 Pa. Page 300]

The court below sustained appellees' preliminary objections on the ground that Birl's complaint in both counts failed to set forth a cause of action. The instant appeal raises one question: have either or both counts of Birl's complaint stated a cause of action?

At least since Lumley v. Gye (1853), 2 Ell. & Bl. 216, 1 Eng. Rul. Cas. 706, the common law has recognized an action in tort for an intentional, unprivileged interference with contractual relations. It is generally recognized that one has the right to pursue his business relations or employment free from interference on the part of other persons except where such interference is justified or constitutes an exercise of an absolute right: Restatement, Torts, § 766. The Special Note to comment m. in § 766 points out: "There are frequent expressions in judicial opinions that 'malice' is requisite for liability in the cases treated in this Section. But the context and course of decision make it clear that what is meant is not malice in the sense of ill will but merely purposeful interference without justification." Our cases are in accord: Klauder v. Cregar, 327 Pa. 1, 7, 192 A. 667;*fn2 Dora v. Dora, 392 Pa. 433, 437, 141 A.2d 587.*fn3

The elements of this tort of inducing breach of contract or refusal to deal, which must be averred in the complaint, are set forth in the Restatement, Torts, § 766, which says, "... one who, without a privilege to do so, induces or otherwise purposely causes a third person not to (a) perform a contract ...


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