15 Pa. Cons. Stat. § 1715(c)(3). The Draftsmen's Comments to § 1715 note that
It is intended, therefore, that the directors' business conclusions with respect to the actions covered by the subsection would ordinarily not be subject to review. In particular, under this subsection, directors have the statutory authority to "just say no" with respect to a potential or proposed acquisition of the corporation's shares . . .
Indeed, critics have charged that the BCL grants directors virtual carte blanche.
Furthermore, when an attempt to gain control is involved, any action to which a majority of the directors has assented is presumed to comply with their fiduciary duty, unless there exists clear and convincing evidence that the directors did not act in good faith, after a reasonable investigation . . . . In addition, shareholders will never be heard to complain that they lost valuable consideration when a takeover is thwarted, unless they can point to some other breach of fiduciary duty.
Marshall, supra, at 582-83. We are aware that the amended portions of the Pennsylvania BCL are judicially uncharted territory. We agree with the commentators and construe the statute to give broad authority to directors to act as they see fit in the face of attempted takeovers.
Plaintiff's allegations can be simply stated: The JLG board of directors did not properly pursue the offer of the group represented by attorney Orbe, nor has it been amenable to other offers. We believe the 1990 amendments to the BCL would not denominate the actions of the JLG board as a breach of fiduciary duty. In considering a motion under Fed. R. Civ. P. 12(b)(6), we must accept as true all the well-pleaded allegations of the complaint and construe them favorably to the plaintiff. Labov v. Lalley, 809 F.2d 220 (3d Cir. 1987). In the instant case, plaintiff's complaint, viewed in the light of the 1990 amendments to the BCL, fails to state a cause of action.
We will, accordingly, dismiss the remaining portions of Count I.
V. Tortious Interference
Count III is a class action suit against the directors of JLG alleging interference with contract and prospective advantage.
Apparently, plaintiff contends that the JLG director's alleged refusal to deal with Orbe or other prospective buyers has tortiously interfered with its rights to the potential Orbe contract to purchase its shares.
Both interference with contract and interference with prospective advantage (which is the equivalent of interference with prospective contractual relations) are intentional torts. Restatement (Second) of Torts § 766 (1977); Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198; 412 A.2d 466, 471 (1979). Intent is an element of both causes of action. Thompson Coal, supra, at 470-71; Silver v. Mendel, 894 F.2d 598, 601-02 (3d Cir. 1990). Defendants argue that the complaint fails to aver the requisite intent. Plaintiff counters that the directors' refusal to speak with Orbe, coupled with the possibility of harm to plaintiff, demonstrates the intent required under Pennsylvania law. We disagree. For most torts, including the two we consider here, intent is not merely an intent to do a certain act but an intent to bring about a particular result. Barber v. Pittsburgh Corning Corp., 365 Pa.Super. 247, 261; 529 A.2d 491, 499 (1987). Intent can also be inferred where the result is substantially certain to occur. Id. The complaint fails to allege that defendants had either an intent to harm plaintiff or a substantial certainty that plaintiff would suffer harm. This will be fatal to Count III. Additionally, the claim for interference with contract is insufficient because it does not allege a critical element of the tort: a current contractual relationship between plaintiff and a "third party," in this case, the group represented by Orbe. See Daniel Adams Associates v. Rimbach Pub., 360 Pa.Super. 72, 78; 519 A.2d 997, 1000 (1987).
We believe that, as a matter of law, the complaint fails to state a claim for breach of fiduciary duty under the revised Pennsylvania BCL and that dismissal of Counts I and II is therefore warranted. Further, the complaint does not state a cause of action for tortious interference with contract or prospective contractual relations.
An appropriate order will issue.
William W. Caldwell
United States District Judge
Date: October 13, 1992
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 803 F. Supp. 1019.
ORDER - October 13, 1992, Filed
AND NOW, this 13th day of October, 1992, upon consideration of defendants' motion to dismiss, it is ordered that:
1. The motion is granted and the complaint is dismissed.
2. The Clerk of Court shall close this file.
William W. Caldwell
United States District Judge