for the Court facts sufficient to contradict the facts identified by the movant which suggest that there are no genuine issues of fact in dispute. Childers v. Joseph, 842 F.2d 689, slip op. at 10 (3d Cir. 1988).
IV MOTION BY PINO AND LIMERICK GARDEN
With the foregoing standards in mind, we first consider Pino's and Limerick Garden's motions for summary judgment on Prudential's counterclaim/third party complaint. The movants argue that because the Prudential policies could be cashed in at will and policy holders are free to terminate their relationship with Prudential at any time, there can be no intentional interference with business relations; that where a third party with an at-will contract was induced to terminate it for his own financial benefit, the conduct of the alleged inducer is absolutely privileged; that the facts reveal that, as to the Arches, the decision to cash in the Prudential policies was made before Pino contacted them in August, 1985, so that he merely implemented their prior decision. Consequently, neither he nor Limerick Garden interfered with the contract as a matter of fact. Finally, Pino and Limerick Garden assert that any incidents or contacts other than with the Arches should be excluded by the Court as irrelevant to the counterclaim and third party complaint.
Consistent with the standards governing the disposition of summary judgment motions, as set forth above, we must determine, for this diversity action, the law of Pennsylvania applicable to claims for interference with business relations to determine, in light of the substantive law, whether the movants are entitled to judgment as a matter of law with respect to the legal arguments made in support of summary judgment. We will, of course, also determine whether there are any genuine issues of material fact in dispute which would preclude summary judgment.
Since 1978, Pennsylvania courts have relied upon the Restatement (Second) of Torts § 767 in adjudicating claims for interference with existing contracts or prospective contractual relations. See Adler, Barish, Daniels, Levin, Etc. v. Epstein, 482 Pa. 416, 393 A.2d 1175, (1978), Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979), Yaindl v. Ingersoll Rand Co., Etc, 281 Pa. Super. 560, 422 A.2d 611, (1980). In Franklin Music v. American Broadcasting Companies, 616 F.2d 528 (3d Cir. 1979), the Court of Appeals for the Third Circuit indicated that the Pennsylvania courts would, in the appropriate case, also apply Restatement (Second) of Torts § 768, which sets forth specifically when competition is proper and improper.
Under § 768, where a contract is terminable at will and concerns a matter over which two persons compete for the business of a third person, the inducement not to enter into a contract or to terminate an existing contract at will is not improper so long as, "the actor does not employ wrongful means and his action does not create or continue an unlawful restraint of trade." Restatement (Second) of Torts § 768(1),(1)(b),(c)(1979). It is obvious here that, with respect to Pino, the relation in issue concerns a matter over which Prudential and he compete, viz., selling life insurance policies. The contract at issue is terminable at the will of the third person, the insured. Consequently, there can be no improper interference unless Pino employed wrongful means, his actions created an unlawful restraint of trade or his purpose was simply to injure Prudential rather than to advance his interest in competing with it. § 768(1)(a)(d).
Prudential alleges only that Pino employed wrongful means to induce its policy holders to cash in their existing policies and purchase other policies from him. Specifically, it points to Pino's failure to supply to the Arches certain documents required by Pennsylvania law and enumerates other statements that he made to them, characterized by Prudential as misrepresentations, which caused them to cease dealing with Prudential.
Prudential correctly contends that Limerick Garden, the assignee of the Arches' policies cannot invoke the competition privilege of § 768 since it does not sell life insurance policies. Thus, Limerick Garden's conduct must be measured against the standards set forth in Restatement (Second) of Torts § 767, adopted by the Pennsylvania Supreme Court in Adler, Barish, 393 A.2d at 1184. The inquiry focuses on the propriety of the actor's conduct with reference to the following factors:
(a) the nature of the actor's conduct,
(b) the actor's motive,