Salsgiver Communications, Inc. v. Consolidated Communications Holdings, Inc., 150 A.3d 957

Salsgiver Communications and Salsgiver Telecom (subsidiaries of Salsgiver, Inc.) sought access to utility poles owned by Consolidated Communications and related entities to attach fiber for cable and telecom services under 47 U.S.C. § 224.
Salsgiver Communications held long-term municipal cable franchises (e.g., Freeport) and the FCC later found it a “cable television system”; Salsgiver Telecom was declared a “telecommunications carrier” by the FCC.
Defendants repeatedly refused pole attachments; plaintiffs sued in 2008 for trespass and tortious interference with existing and prospective contractual relations. The trial court limited claims to post-April 14, 2006 conduct on statute-of-limitations grounds.
At trial defendants introduced evidence they denied access based on counsel’s legal conclusion that plaintiffs were not entitled to § 224 attachments.
The jury was instructed on tortious interference with prospective contractual relations (including a multi-factor Restatement § 767-style test for impropriety) and mitigation of damages; the jury found for defendants.
Salsgiver appealed, raising (1) error in instructing the jury to consider whether defendants acted in good faith as part of the impropriety inquiry, and (2) error in giving a mitigation-of-damages instruction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by instructing the jury it could consider defendants’ good faith when assessing whether interference was "improper"	Good faith is not a recognized defense; instruction created a de facto good-faith defense and was confusing	The instruction only asked the jury to consider whether defendants advanced their interests in good faith as one factor in the multi-factor impropriety inquiry (Restatement § 767 factors)	Affirmed — instruction was proper: good faith was one element of the "interests sought to be advanced" factor and consistent with Pennsylvania law on impropriety/privilge
Whether the court erred by instructing on mitigation of damages	Little evidence on mitigation; instruction would confuse jury and was unnecessary	Mitigation is a proper jury consideration when damages are at issue	Harmless if error — jury found no liability, so any error in the mitigation instruction did not affect outcome

Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009) (standard of review for jury instructions in civil cases)
Reilly by Reilly v. S.E. Pa. Transp. Auth., 489 A.2d 1291 (Pa. 1985) (review the charge as a whole against the evidence)
Foster v. UPMC South Side Hosp., 2 A.3d 655 (Pa. Super. 2010) (elements of interference with prospective contractual relations include absence of privilege/justification)
Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923 (Pa. Super. 2013) (equates absence of privilege with improper interference and directs use of Restatement § 767 factors)
Walnut Street Assocs., Inc. v. Brokerage Concepts, Inc., 20 A.3d 468 (Pa. 2011) (focus on whether intentional interference was improper)
Glenn v. Point Park Coll., 272 A.2d 895 (Pa. 1971) (historic formulation of tort elements and discussion of privilege vs. impropriety)