Opinion by
This is аn appeal from the order of the court below sustaining the appellee’s preliminary objections to appellant’s complaint in trespass.
The complaint averred that the appellant began employment with the appellee (Hanldson) under an oral сontract in 1967. The parties executed a contract in 1969, under seal, by which appellant аgreed, inter alia, that he would not directly or indirectly engage in a business in which Hanldson was engaged for a period of two year's. The agreement contained no geographical limitаtion.
In September of 1971, appellant notified Hankison Corp. that he had obtained employment with a competitor, Kellogg-American Corporation, and was, therefore, terminating his еmployment with the Hankison Corp. Hankison then notified Kellogg that appellant was not free to take employment with it by virtue of the covenant not to compete. Because of Hаnkison’s action, appellant claimed damages for the loss of employment with Kellogg. Hе also claimed he was entitled to relief under the Uniform Declaratory Judgments Act 1 declaring thе agreement to be null and void, and unenforceable.
Hankison filed preliminary objections tо the complaint, alleging that the appellant failed to state a cause of aсtion in that the agreement (affixed to the complaint) prohibited appellant from obtаining employment with a competitor; that the contract was valid on its face; and that by virtue of the contract, Hanki-son’s conduct was privileged. After appellant was given several оpportunities to amend the complaint which he refused to do, the preliminary objectiоns were sustained and the complaint dismissed.
*156 Appellant’s canse of action in trespass is grоunded upon §766 of the Restatement of the Law of Torts 2 which provides:
“. . . one who, without a privilege to do so, induces or otherwise purposely causes a third person not to<
“(a) perform a contract with another, or
“(b) enter into or continue a business relation with another is liable to the other for the harm caused thereby.”
The presenсe of a privilege is not an affirmative defense, rather, the absence of such a privilеge is an element of the cause of action which must be pleaded and proven by the plaintiff.
Capecci v. Liberty Corp.,
Appellant did not plead a lack of privilege or justification on the part of Hаnkison in notifying Kellogg of the covenant. Even if appellant’s averment that Hankison acted maliciously cured that specific defect [see
Birl v. Philadelphia Electric Co.,
The privilege is defined in §773 of the Restatement: “One is privileged purposely to cause another not to perform a contract, or enter into or continue a business relation, with a third person by in gоod faith asserting or threatening to protect properly a legally protected intеrest of his own which he believes may otherwise be impaired or destroyed by the performanсe of the contract or transaction.”
*157
By virtue of the covenant, Hankison had a legally protected interest to pursue by its act of notification. Such a covenant presents a prima facie case for the invocation of the Restatement’s privilege.
Barlow v. Brunswick Corporation,
The court below, however, alsо dismissed that portion of the appellant’s complaint which sought declaratory relief. Thе court did not discuss this action in its opinion and, on the face of the complaint, there appears to be no reason for the summary dismissal. We have previously held that if otherwise appropriate, a proceeding for a declaratory judgment is a proper form оf action for challenging the validity of restrictive employment covenants,
Wilshire v. Penn Overall Co.,
Order affirmed in part, reversed in part; аnd case remanded for proceedings consistent with this opinion.
Notes
Act of June 18, 1923, P. L. 840, as amended, 12 P.S. §831.
Adopted in Pennsylvania:
Capecci v. Liberty Corporation,
The appellant did not aver in its complaint that the manner in which Hankison acted was improper. Under the Restatement, even if a privilege exists, if the actor does not protect it by proper means, he will be liable. See Comment to §733, Restatement of Torts.