such a commitment or scheme between Dr. Gouldin, the medical staff and the hospital administration. Summary judgment is therefore appropriate.
The plaintiff also attempts to make out a boycott claim by looking to the cross-coverage agreement between Dr. Gouldin and Dr. Calce.
While an agreement between these two physicians would constitute concerted action, it is quite clear that the cross-coverage agreement did not preclude the plaintiff from practicing nuclear medicine at either The Williamsport Hospital or Dr. Calce's department at Divine Providence Hospital. The doctors simply agreed that one would cover for the other during weekends, vacations and the like. This does not constitute a boycott of the plaintiff. Although the plaintiff has attempted to demonstrate the existence of a conspiracy by offering a factual scenario in which Drs. Gouldin and Calce formed their cross-coverage agreement before even arriving in the Williamsport area, the court observes that the record does not support the ultimate conclusion that the plaintiff wishes us to draw, for there simply is no evidence supporting the view that this cross-coverage agreement is causally related to the plaintiff's exclusion from the relevant market. Moreover, there is ample evidence negating the allegation that the agreement was the product of an intention by Drs. Gouldin and Calce to exclude the plaintiff from the practice of nuclear medicine. No contradictory evidence from the plaintiff has been submitted. Accordingly, the motion for summary judgment will be granted as to the plaintiff's group boycott claims.
Since the employment contract between Dr. Gouldin and the hospital grants to her the exclusive right to perform the procedures and render the interpretations of the scans produced in the department, the plaintiff asserts that the agreement is an "exclusive dealing" arrangement which must be scrutinized under the rule of reason.
As they did in connection with the group boycott claim, supra, the defendants respond that there can be no concerted action, and hence no Section 1 liability, when the purported combination is comprised of an employer and his employee.
For the reasons set forth, supra, in connection with the group boycott claim, the court agrees with the defendants' position.
In addition, the court observes that the hospital's conduct in this case might be likened to that of a trader attempting to accomplish the vertical integration
of his business. The court has been unable to find any cases in which the resulting agreement between the trader and his employees constitutes an impermissible restraint of trade within the meaning of Section 1. The cases which the court has found indicate that such agreements do not fall within the ambit of Section 1, partly because they do not involve concerted action. See Lamarca v. Miami Herald Publishing Co., 395 F. Supp. 324, 327-28 (S.D. Fla.) (denying motion for preliminary injunction), aff'd mem., 524 F.2d 1230 (5th Cir. 1975); Millcarek v. Miami Herald Publishing Co., 388 F. Supp. 1002, 1005-06 (S.D. Fla. 1975) (same); cf. Ark Dental Supply Co. v. Cavitron Corp., 461 F.2d 1093, 1094 & n.1 (3d Cir. 1972) (holding that a decision to sell only to a subsidiary is permissible in the usual case). But see Auburn News Co., Inc. v. Providence Journal Co., 504 F. Supp. 292, 299 & n.2 (D.R.I. 1980) (distinguishing Lamarca and Millcarek because they involved employees; holding that concerted action can be found when independent contractors are involved rather than employees), reversed on other grounds, 659 F.2d 273 (1st Cir. 1981), cert. denied, 455 U.S. 921, 71 L. Ed. 2d 461, 102 S. Ct. 1277 (1982).
The court will grant the defendants' motion for summary judgment as to the plaintiff's exclusive dealing claim.
STATE LAW CLAIMS
Remaining for the court's consideration are the plaintiff's breach of contract and tort claims. These do not require extended discussion.
The plaintiff's contract claim is predicated upon the by-laws of the medical staff and of the hospital itself. See Berberian v. Lancaster Osteopathic Hospital Ass'n, 395 Pa. 257, 262-65, 149 A.2d 456 (1959). Both sets of by-laws contain procedural provisions governing the granting, denial and withdrawal of staff privileges at the hospital. See By-Laws of The Williamsport Hospital, Art. III, § 1, Defendants' Appendix at 276a-277a; By-Laws, Rules and Regulations of the Medical Staff of The Williamsport Hospital, Art. III, § 5, Defendants' Appendix at 246a-247a. The plaintiff asserts that he was entitled to the procedural protections offered in the by-laws because Dr. Gouldin's right to practice exclusively in the department was tantamount to a "reduction of privileges."
A similar claim was advanced in Adler v. Montefiore Hospital Ass'n, 453 Pa. 60, 311 A.2d 634 (1973), cert. denied, 414 U.S. 1131, 38 L. Ed. 2d 755, 94 S. Ct. 870 (1974). In Adler, a physician was no longer permitted to perform certain procedures because another doctor was granted the exclusive right to do so. The Supreme Court of Pennsylvania held that there was no right to a hearing under by-laws provisions similar to the ones involved in the instant case. 453 Pa. at 80-82. The Court initially noted that the physician's position on the medical staff did not in and of itself confer upon him the right to perform the particular procedures in question. This being the case, the Court reasoned, the physician had only a unilateral expectation of being able to continue to perform the procedures. Noting that "his rights to admit patients and to prescribe treatment, and the remainder of the cluster of privileges accorded to all staff members, have in no way been diminished, but remain in all respects equal to those of other staff members," the Court concluded that there was no reduction in privileges and, thus, no right to the protection offered by the by-laws. Id. at 81. In the instant case, the by-laws did not confer upon the plaintiff the right to perform nuclear medicine procedures. After Dr. Gouldin's arrival, the plaintiff retained "the cluster of privileges" possessed by all staff members. Accordingly, the court views the Adler case as controlling and will therefore grant the motion for summary judgment on the contract claim.
The plaintiff also has set forth a tort claim based upon a purported interference with his contractual relations. Under Pennsylvania law, there are four elements to such a claim. The plaintiff must demonstrate the existence of present or prospective contractual relations, an intent on the part of the defendants to harm the plaintiff by interfering with those contractual relations, the absence of a privilege or justification for the interference and damages. Glazer v. Chandler, 414 Pa. 304, 307, 200 A.2d 416 (1964) (stating that "numerous cases" emanating from Pennsylvania courts comport with this definition of the tortious interference claim); Restatement (Second) of Torts § 766. In the present case, the plaintiff has conceded that "at no time has [he] had any binding contracts with any prospective patients or any referring physicians whereby such patients were required to use plaintiff's professional services or such referring physicians were obligated to refer patients to plaintiff." Stipulation para. 19, Defendants' Appendix at 70a. Moreover, the record belies any claim that any of the defendants acted with an intent to harm the plaintiff's business or contractual relations. The motion for summary judgment on the plaintiff's tort claim will be granted.
An appropriate Order shall enter.
In accordance with the reasoning set forth in the accompanying Memorandum, IT IS HEREBY ORDERED THAT the defendants' motion for summary judgment is denied as to the plaintiff's tying claim under Section 1 of the Sherman Act and granted in all other respects.