None of the cases cited by defendants compels a different conclusion. In Berberian v. Lancaster Osteopathic Hospital Association, Inc., 395 Pa. 257, 149 A.2d 456 (1959), the plaintiff physician appealed from the denial of a preliminary injunction preventing his dismissal from the medical staff of the defendant hospital. The issue before the Pennsylvania Supreme Court was whether the plaintiff should have been given a hearing prior to his dismissal. 395 Pa. at 261, 149 A.2d at 457. Because it determined that the hospital's bylaws provided the plaintiff with the right to a hearing, the Berberian court issued an injunction restraining the defendants from dismissing the plaintiff until he received the hearing to which he was entitled pursuant to the bylaws. 395 Pa. at 265-66, 149 A.2d at 460.
In Miller v. Indiana Hospital, 277 Pa. Super. 370, 419 A.2d 1191 (1980), the plaintiff physician charged the defendant hospital with breach of contract, and appealed from the denial of a permanent injunction preventing revocation of his staff privileges. The court held that the defendant's conduct was not comparable to the type of impermissible breach committed by the defendants in Berberian, since the court determined that the hospital's deviations from the bylaws were minor, were eventually cured by the defendant, and caused no prejudice to the plaintiff. Id. at 375, 419 A.2d at 1193-94. In response to plaintiff's allegations that he was deprived of his due process rights, the court reasoned that these claims had to be assessed according to the standards set forth in the hospital's bylaws. 277 Pa. Super. at 379, 419 A.2d at 1195. Since the court determined that the bylaws provided him with comprehensive safeguards, and that the hospital substantially complied with the procedures set forth in the bylaws, it affirmed the denial of injunctive relief. Id. at 380, 419 A.2d at 1196.
Neither of the decisions described above support defendants' position. Berberian held that a hospital must provide its medical staff with all procedural protections provided in the hospital bylaws before taking any action adverse to the interests of a staff member. Defendants assert that "it follows that if a hospital must follow the procedures set forth in its bylaws, a physician also must invoke the available remedies before suing for breach of contract." I need not rule on the logic of this argument, since I conclude that it is not the law of the Commonwealth of Pennsylvania to be applied in this case. Cf. O'Neill v. United Association of Journeymen Plumbers and Steam-Fitters of United States and Canada, 348 Pa. 531, 36 A.2d 325 (1944) (plaintiffs brought action in equity alleging that the union deprived them of their rights under the contract; court rejected defense of plaintiffs' failure to exhaust internal remedies because defendants had flagrantly breached the contract and resort to internal union remedies would have deprived plaintiffs of opportunity for redress for an unreasonably long period of time).
Although defendants do not make it clear, presumably they cite Miller in support of the proposition that defendants cannot be liable for breach of contract since their alleged breaches were, at most, de minimis, and that Posner deprived the defendants of an opportunity to cure the alleged violations by his failure to exercise his right of appeal to the Lankenau Board of Trustees. Because I have determined that there are questions of fact concerning the alleged breaches by the defendants, which, if proved at trial, would amount to more than de minimis deviations from the Bylaws, Miller is distinguishable from the instant case. Since I conclude that, under Pennsylvania law, the plaintiff's failure to exhaust his contractual remedies does not preclude him from asserting his breach of contract claim, I will deny defendants' motion for summary judgment on this issue.
Tortious Interference with Plaintiff's Contractual Relations with Lankenau Hospital and the Lankenau Medical Staff
Plaintiff asserts that defendants are liable for intentionally interfering with his contractual relations. Posner's first claim is that Drs. Manko, Figueroa, Jones, Chasteney and Noone tortiously interfered with his contract with the Medical Staff and Lankenau Hospital by intentionally and improperly denying his reappointment to the Medical Staff. Dr. Manko, as Chairman of the Department of Internal Medicine, and Dr. Figueroa, as the new Chief of the Pulmonary Division, actively supported the decision not to reappoint plaintiff to the Medical Staff. Drs. Jones, Chasteney and Noone were members of the Hearing Committee which recommended that the Executive Committee's decision to deny Posner's reappointment be upheld.
The Pennsylvania Supreme Court has adopted section 766 of the Restatement (Second) of Torts, which states:
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 (1979); Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 482 Pa. 416, 393 A.2d 1175 (1978), appeal dismissed, 442 U.S. 907, 61 L. Ed. 2d 272, 99 S. Ct. 2817 (1979). In order to incur liability under section 766, the defendants must have prevented a "third person" from performing a contract between the third person and Posner. Defendants contend that since each of the named defendants was a member of the Medical Staff, acting on behalf of the Medical Staff and Lankenau Hospital, and therefore a party to the contract between the Medical Staff and Lankenau Hospital formed by the Bylaws, none of them could have prevented a "third person" from performing a contract with Posner.
As noted earlier, the Lankenau Bylaws constitute a contract between the hospital and the Medical Staff. See Berberian v. Lancaster Osteopathic Hospital Association, Inc., 395 Pa. 257, 149 A.2d 456 (1979). The defendants in the instant case, as members of the Lankenau Medical Staff, were parties to the contract created by the Bylaws. Therefore, as a matter of law, they cannot be held liable under section 766 for tortiously interfering with plaintiff's contractual relations with Lankenau Hospital or the Lankenau Medical Staff. See, e.g., Wells v. Thomas, 569 F. Supp. 426 (E.D.Pa. 1983).
Posner also claims that defendants intentionally interfered with his continuing and prospective business relations with his patients. He contends that, as a result of defendants' actions, he could no longer treat his patients at Lankenau. Because Posner admitted at his deposition that he had no contracts with any of his patients or with any other physicians to refer patients to him, this claim is not cognizable under section 766.
Plaintiff also contends that defendants' actions caused him to lose prospective patients. This claim falls within the ambit of section 766B of the Second Restatement, which provides:
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