Civ. P. 12(b). On March 17, 1983, this court denied plaintiff unions' motion to restore First Pennsylvania as a defendant in the United Glass action.
Defendants Keith Sachs, Herbert Sachs and Saxco now seek to have First Pennsylvania reinstated as a party to these actions pursuant to Fed. R. Civ. P. 14. The sole basis for liability alleged in the complaint is that of tortious interference with contract by First Pennsylvania.
Fed. R. Civ. P. 14(a) provides that a defendant, as a third party plaintiff, may serve a complaint upon a party not currently joined in the action ". . . who is or may be liable to him for all or part of the plaintiff's claim against him." In the complaint the third party plaintiff must set forth ". . . a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pa. 8(a)(2).
This court in rendering judgment on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) must accept all allegations contained in the complaint as true. Furthermore, all allegations contained in the complaint must be construed in the light most favorable to the third party plaintiff. Finally, the complaint may not be dismissed unless it appears beyond doubt that Keith Sachs, Herbert Sachs, and Saxco can establish no set of facts in support of their claim. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957); Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977); McKnight v. Southeastern Pennsylvania Transportation Authority, 583 F.2d 1229 (3d Cir. 1978).
Applying the foregoing standards to the third party complaint filed by Keith Sachs, Herbert Sachs and Saxco I find that First Pennsylvania's motion to dismiss must be granted. The claim set forth in defendants' third party complaint seeks judgment for tortious interference with contract. It is clear that the allegations of the complaint do not, as a matter of law, support this claim.
In order to recover for tortious interference with contract, Pennsylvania law, which has adopted the Restatement (Second) of Torts § 766 (1977), provides, "One who intentionally and improperly interferes with the performance of a contract 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 third person's failure to perform the contract." Adler, Barish, Daniels, Levin, and Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175, 1183 (1978) (Emphasis added). It is clear that in an action for tortious interference with contract, the only person protected ". . . is the specified person with whom the third person had a contract that the actor caused him not to perform." See Restatement (Second) of Torts § 766 comment p (1977).
Assuming defendants Keith Sachs, Herbert Sachs, and Saxco are found liable for the acts of National Bottle, an issue which need not be decided in disposing of this motion, it simply does not follow that the defendants are entitled to recover in an action for tortious interference with contract against First Pennsylvania. If any such cause of action existed it would belong solely to the plaintiff Unions who are the only parties protected in such a tort action under the circumstances of this case.
Accordingly, as defendants Keith Sachs, Herbert Sachs and Saxco cannot be the proper parties to claim relief for tortious interference with contract, their third party complaint must be dismissed.
The foregoing disposition makes it unnecessary to consider First Pennsylvania's additional contentions that the third party complaint must fail because it is barred by the doctrine of the "law of the case."
ORDER DISMISSING THIRD PARTY COMPLAINT OF SAXCO INTERNATIONAL, INC., KEITH SACHS AND HERBERT SACHS AND ORDER STAYING DISCOVERY OF FIRST PENNSYLVANIA
AND NOW, this 7th day of October, 1983, after consideration of the Motion of Third Party Defendant, First Pennsylvania N.A., to dismiss the Third Party Complaint against it by defendants Saxco International, Inc., Keith Sachs and Herbert Sachs, it is hereby
that the Third Party Complaint is dismissed with prejudice. It is further ORDERED that defendants are foreclosed from pursuing discovery against First Pennsylvania N.A. as a party.
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