*1
Newcomer,
v.
Huey
Taylor,
Instantly, Instead, her services. she has translated value oral to devise real estate promises decedent’s unenforceable monetary and to to her to an bequeath equivalent income her that sum as the value of figure, and she now claims that decedent paid services. admits in her pleadings She her, during period increasing wages and she accepted, 1973; bought that decedent from 1967 to September July ($10,- thousand her that she received a ten clothing; some and, she no rent or board 000) paid dollar gift; decedent. she allegation
A Pulli’s reveals no pleadings review of for her services. compensation has not received reasonable value of Instead, claiming monetary prop- she is clearly based on a her the decedent and income erty promised found unenforceable. contract which has been previously is so be affirmed. It Therefore, trial court’s decree must ordered. side to own costs. pay
Each
412 A.2d Leroy COAL COMPANY THOMPSON Thompson, Appellants, COMPANY, Thompson, Bank Cleаrfield S. PIKE COAL George Company, Scott and Clifford and Trust Johnston, Appellees. Pennsylvania. Supreme Court 8, 1979. March Argued Decided June *3 Elliott, Foster, Dilworth, Paxson, John M. Constance B. Kalish, Kauffman, & for Levy Philadelphia, Thompson Co. and Leroy Thompson. Watson, Jr., Reed, Smith,
G. Donald Gerlach, W. Robert Bank Shaw & for Clearfield and Geo. McClay, Pittsburgh, Scott. Hoch, Hurwitz, Klein,
Richard C. Kenneth D. Angino, Benjamin & Johnston. Angino, Harrisburg, Clifford Jubelirer, College
James L. for Pike Coal Co. and State Ralph Thompson. *4 J., O’BRIEN, EAGEN, ROBERTS, NIX,
Before and C. LARSEN, MANDERINO and JJ.
OPINION OF THE COURT NIX, Justice.
Appellants argue the Court Common Pleas Clearfield in County granting defendant-appellees’ erred motions for because, summary judgment, appellants allege,
there genuine existed issues of material fact as to each appellee. The Court affirmed the order of the Superior Court of Common curiam order an Pleas without per opinion. This review and after Court consideration granted of the briefs of respective parties argument, the and oral we share the view that the trial court reached the correct re- sult.1
Appellant, Thompson (Leroy) appellee, Leroy Ralph S. Thompson (Ralph), are brothers who were associat- formerly ined until Thompson Company parted compa- thе Coal they October, time, left ny Thompson 1965. At Coal and formed the Pike Both brothers Company. desired obtain ownership to surface subsurface rights in the of land as “Kreska Tract.”2 tract known the The rights Adolph surface were owned Kreska. The coal by in the Kreska were owned rights by other mineral Tract Hess, Boulton, J. Boulton and J. Harry Raymond Harold 15, On May each an undivided one-third interest. owning 1965, leased under the Kreska Tract mining rights Leroy from the three owners under rights year-to- subsurface to extend March agreed lease which year parties n In Kreska sold thе surface August Adolph but ceased these operations, to Ralph. Ralph began mining attorney, informed his Clifford operations upon being in the all Johnston, he less than owned began designed Tract. thereafter efforts Kreska to the Kreska Tract. On outstanding rights purchase the Scott, executor of 27, 1974, surviving August George interest Boulton, one-third sold the estate’s Estate of Harry Ralph, Tract the Kreska rights underlying in the mineral pursuant appeal to 42 C.S.A. jurisdiction has this 1. This Court Superior ruling as Court Judge Campbell certified his § 724. 501(b) of to Section involving controlling questions Pursuant of law. 31, 1970, Act, July No. P.L. Appellate Court Jurisdiction 1978-79). Pa.C.S.A. V, (Supp. See 42 211.501 art. P.S. § § 702(b). § approval of the mining open pit requires consent and 2. Modem rights. and subsurface owners of both the surface *5 rights mineral to of said ... to a lease “Subject date, the same . . .’’On Company. Coal Thompson Scott, George co- Company Clearfield Trust and Bank and Boulton, sold ward’s one-third their guardians Harold J. to lease of subject to Ralph in the mineral rights interest of both former The interest Thompson Company. Coal Coal as- Leroy Thompson in and owners the lease tо of mineral of conveyance to at the time signed leased his 10, 1974, J. Hess rights. Raymond On September Tract to and can- under the Kreska mineral Company, Coal Thompson celled his with the lease above 1975. In the effective March cancellation to be sole Company, became manner, Ralph, as Pike Coal trading of the subsurface surface and two-thirds owner of the subsur- remaining and one-third rights, lessee held by Leroy face to the lease rights subject Coal. Thompson filed a Thompson Company
Appellants Leroy Company, civil Pike Coal Clearfield Ralph, action against and Clifford John- George Bank Scott Company, and Trust ston, engaged various alleging that the above appellees to defraud alia, conspiracy acts negligence, inter constituting relation- business and tortious with contractual interference County Pleas of Clearfield ships. The court Common filed Clearfield granted summary judgment a motion for and Clifford John- George Bank Scott Company, and Trust and tortious interference ston of negligence as counts granted judgment business relationships, summary оn and Clifford Johnston Company Pike Coal Ralph, conspiracy IV of which charged Count the complaint defraud.3 contentions appellants’
The
theme
underlying
pursuant
Pennsyl
entered
judgments
the summary
because
improper
Rule of
Procedure 1035 were
vania
Civil
fact
issues of material
disputed
genuinely
there remained
of the motion for
3. The trial court denied the remainder
Company,
judgment
appellees Ralph
and that
and Pike Coal
appeal.
portion
ruling
us
is not before
in this
the trial court’s
each of these instances. Rule 1019 rеquires that
the materi-
*6
al facts on which a cause of action or defense is based shall
be stated in a concise and summary form. Rule 1035 per-
mits the
of
entering
a summary judgment
if
only
the
pleadings, depositions, answers to interrogatories,
admissions
and affidavits,
if
“show that
any,
there is no genuine issue
as to any material
fact and that
the moving
party
entitled
to a judgment as a matter of law.” Summary judgment
granted
only
cases,
the clearest of
where the right
is clear
and free from
Rasner,
doubt. Kotwasinski
32,
v.
258
A.2d 865 (1969);
Pavoni,
Prince v.
286,
225 Pa.Super.
302
A.2d
(1973).
452
The moving
has the
party
burden оf
proving the nonexistence of
issue
any genuine
of fact. Kent
Miller,
v.
390,
222 Pa.Super.
The counts sounding negligence allege Scott Clearfield, as guardians of the Estate of Harold S. Boulton, Scott, as executor of the Estate of Harry Boulton, breached various duties owed them as fiduciari by es.4 It is argued by appellants there is as tо dispute whether these breaches in fact occurred and that absent the factual resolution these issues the of entry of. summary judgment improper. However, if even we were to fact, the averments as accept appellants’ these fiduciaries owed to the who were duty appellants violated no The merely lessees of the mineral Restatement rights. Trusts, of 200 states: (Second) (1959) § guardians complaint, appellants did not In their averred that the sale, report approval of seek court did not before the sаle court, inquiry the reasonableness of the made no into e., undervalued), (i. price grossly acted sale received was hastily, appellants who were lessees of the and did not contact mineral at the time. on his behalf can suing one or beneficiary No one a except trust or enforce the to maintain a suit the trustee against trust. for a breach enjoin to or obtain redress express “grave our past in the have had occasion We ” stranger object . a standing as to the . . doubt n. Estate, Pa. assets. Curtis waste of trust court Since the (dictum).5 n. (1970) facts disputed resolution find that a could properly the existence law, neither would, establish as matter nor a breach to the appellants fiduciaries owed duty to these counts as thereof, judgment entry Corp., Steel Boyce U. S. See appropriate. was entirely Co.,439 Engel Parkway Pa. A.2d 685 *7 was wrongfully that allege summary judgment Appellants Johnston, in Esquire, entered them favor of Clifford against negotiations and who in his successful represented Ralph claim Appellants' Kreska Tract. transactions to the acquire for tortious trespass is a suit in against essentially Johnston as contractual prospective interference with as well existing relationships. Complaint, II it
Under Count
Amended
the Second
Johnston,
his
Clifford
attorney,
aided
alleged
Ralph,
by
misrep-
in
form
acts,
in
the
engaged wrongful
principally
rights,
the
which
holders of
resentations to
former
Thereafter, it is
to him.6
rights
induced them to
convey
fiduciary
distinguished
is held
To be
are
in which a
5.
those cases
relationship
stranger
fiduciary
when the
accountable
to a
fiduciary
stranger.
directly
duty
to that
See
has breaсhed a
owed
Trusts,
obligation
(Second),
The
in these
Restatement
§
relationship
cases
not from
but
rather
from the
arises
the trust
Stull,
fiduciary’s duty
party.
to the
See Clauson
third
Jacobs,
Thereafter, it is that Clifford Johnston acted with alleged motive of his wrongful covering malpractice liability arising out of his title allegedly negligent search. John- ston’s role in the initial of the surface purchase never complaint. Specific allega- made more in the specific tions of Johnston’s motive do not until it is wrongful appear 43-47 that Johnston discovered that alleged Paragraphs owned less than all of the to the Kreska Tract. wrongful At this ascribe the motive point, appellants to Johnston of to avoid attempting malpractice liability an title search. In accord with the standard incomplete non-moving which we all inferences favor of the interpret Inc., we have Enterprises, supra, Ritmanich v. Jonnel party, wrongful Paragraph adequately imputes assumed that *8 to his regard alleged motive on the of Johnston with part Nevertheless, rights. role in the of the surface purchase allege Ralph emplоyed while appellants specifically made to means, e., misrepresentations i. he wrongful of exact nature surface rights, owners obtaining Thompson expressed ill-will towards his Defendant has individually Defendant by wilfully engaging, and with Plaintiffs acts, designed purposefully to of Clifford Johnston a series opportuni- relationships disrupt and business Plaintiffs contractual ties, purchase to including attempts the surface to Plaintiffs’ Kreska; outright purchase Adolph property from leasehold the leasehold on or to the mineral continue his lease as property. .
207 in this initial transaction role wrongful Johnston’s allegedly it Finally, the pleadings. reading is far from clear from misrepresentations material their alleged “[t]hrough Boulton, Defendants of Harold guardians intention- maliciously Johnston and Clifford Thompson Company’s Thompson with Plaintiff interfered ally Boulton with Harold arrangement lease continuing prop- leasehold purchase attempts Plaintiff’s on-going erty.” induc wrongful long recognized
The law has
one not
encouragement
or the
of contract
of a breach
ing
with another
relationship
or business
a contract
to enter into
Torts,
766
The Restatement
§
tort.
is an actionable
tort as follows:
described this
(1939)
so, induces or
to do
who,
a privilege
. one
without
not to
person
causes a third
otherwise purposely
another, or
with
a contract
(a) perform
with an-
relation
a business
continue
(b) enter into or
thereby.
harm caused
for the
to the other
other
liable
jurisdiction.
in this
with approval
cited
This section has been
171,
456 Pa.
Corp.,
Steel
See, e.
v. United States
g., Geary
College,
Park
v. Point
319
174
Glenn
A.2d
304,
Chandler, 414 Pa.
v.
(1971); Glazer
tions). In case, this contend that appellants both theories of are liability present.
There are many cases in
which have exam-
Pennsylvania
ined alleged
See,
e.
interferences with existing contracts.
g., Alder, Barish, Daniels, Levin & Creskoff v. Epstein,
supra;
Chandler,
Glazer v.
Birl
supra;
v.
su-
Philadelphia,
Dora
pra;
Dora,
Cramer,
v.
Keifer
supra;
v.
Klauder
supra;
v. Cregar,
Caskie v. Philadel-
1,
327 Pa.
A. 667 (1937);
phia
Rapid
Transit
157,
Company,
(1936);
321 Pa.
There are a number business with prospective interference considered Corp., States Steel See, v. United g., Geary e. relations. College, Point Park v. Glenn Chandler, supra; Glazer A.2d 895 Park, 354, 137 Memorial County Allegheny Neel v. supra, we College, Park Point Glenn In A.2d 785 complaint in a appear must four elements established that inten- of action a cause to state plaintiff order for relations: contractual with prospective tional interference relation; contractual (1) prospective by prevent- the plaintiff to harm intent or (2) purpose occurring; from the relation ing part on the justification or privilege (3) the absence defendant; from resulting damage actual occasioning (4) the conduct.7 defendant’s supra, College, we stated: Park In v. Point Glenn inducing discussing of the tort breach elements In deal, the Torts as formulated 766 of § a refusal or contract *10 a contractual relation” is admitted-
Defining “prospective extent, term problematic. To a certain the has an evasive ly definition. It is less eluding something than quality, precise a a hope. contractual more than mere right, something Nevertheless, a of the term is working provided definition 480-81, by College,supra, Glenn Point Park at 898-99, A.2d аt wherein was stated that: it is neces in nature that is prospective
. anything certain dealing with We not here are uncertain. sarily This probability. or likelihood reasonable ties, but with innate or the hope a mere than more something must be of New the Court Superior As of the salesman. optimism * * “ * ** to be applied the rule it, put has Jersey satisfied the is jury when recover may the that broker it is the defendant acts of for wrongful but the that effected would have plaintiff that the probable reasonable a commission.” received and the of the property sale 493, 497, 180 A.2d Inc., Arcadio, N.J.Super. Myers which of standard objective an This is (footnote proof, adequate supplied by must course be omitted). transactions an
If we
to view
are
the
there
appellants
cannot
objective light,
agree
we
would be
a
that the lease
probability
reasonable
either
a reasona-
1, 1975, or that there was
after March
continued
Restatement,
(1)
actor must act
our Court has stated
“the
purpose
plaintiff,
causing
specific type
the
of harm to the
this
(2)
(3)
actually
unprivileged,
such act
be
the harm must
must
Co.,
Birl
result.”
v. Phila. Electric
course,
(1960). Underlying
requisites, of
these
the existence of a
prospective
contract or of
relation between the third
a
contractual
person
questions
plaintiff.
the
Thus in
case
are
the
this
(1) prospective
complaint
whether the
contractual
rela-
discloses
purpose
plaintiffs,
(2)
between
intent
tion
Sheraton and
the
or
plaintiff
occurring,
relationship
(3)
preventing
harm
the
from
part
privilege
justification
absence of
or
on
actor
(appellee),
damage
(4)
harm
the occurrence
actual
or
plaintiff as a result of the actor’s conduct. Cf. Locker v. Hudson
Co.,
Co.,
(C.P.
1953).
87 Pa. D. &
C.
Lackawanna
479-80,
The trial court entered on the summary judgment conspir- acy Pike charges against Ralph, Coal and Company Clifford Johnston. The trial court entered originally judg- ment in favor of Clifford Johnston on the only conspiracy Thereafter, count. the trial court entered an amended order which in entered in favor of part summary judgment Pike IV, and as to the in Company charge Count to defraud. conspiracy 92 Amended
Paragraph appellants’ Complaint, Second which all the collective incorporates wrongs references by defendants, and the other committed Johnston allegedly by 91 through “The 31 paragraphs states: acts set forth of a preconceived рlan were carried out in furtherance injure Johnston to and Clifford Ralph Thompson Defendants The trial reputation.” business relationships Plaintiff’s material that failed adduce appellants court reasoned intent on the of Johnston part facts an unlawful evidencing facts failed to appellants present that therefore found conspiracy. of a tortious an element support essential appellants have failed to establish 8. Because we have concluded prospective demonstrating or business contractual facts either a appellants question pursue of whether relationship, we need not unprivileged. appellees’ establishing were acts have facts College, Steel, supra; Park v. Point Geary Glenn v. United States See supra. with con- (A tortious interference plaintiff in an action complaint aver in his prospective relations must business tractual or unprivileged). interference was that the
211 be shown that it must conspiracy, civil To prove do with intent to agreed or or combined two more persons unlawful lawful aсt an unlawful do an otherwise act or to National Pennsylvania Western means. Landau v. See Fife v. Great (1971); 335 217, 282 A.2d Bank, 445 Pa. (1947); Co., 52 A.2d Tea and Pacific Atlantic Baker v. (1914); A. 224 Reiff, 244 Pa. Bausbach v. (1974). Proof 333, 324 A.2d Rangos, Pa.Super. proof is essential malice, e., an intent to injure, i. 533, 110 Co., 266 Pa. Publishing Post Miller v. conspiracy. 64 A.2d Harvey, Miller v. A. 265 Elliott, 152, 55 A.2d Irvine v. The test justification. intent must be absent This unlawful 108-09, Rosenblum, 320 Pa. in Rosenblum was stated (1935): 181 A. intentional, it is
Assume that
is done is
what
question,
comes the
to others. Then
calculated to do harm
If it
cause or excuse”?
“just
Was it done with or without
property
of a man’s own
in the use
was bona fide done
* * *
* * *
exist
such
would
legal justification
seem to others
might
done
not the less
what was
because
* * *
legal
such
But
to be selfish or unreasonable.
merely
the act was
when
justification would not exist
harm, with-
causing temporal
done with the intention
*12
or the lawful
gain,
out reference to one’s own lawful
own rights.
of one’s
enjoyment
that Johnston
There are no facts of record which indicate
are
To the
there
contrary,
injure appellants.
acted
solely
solely
Johnston acted
facts which indicate that
many
his client and to
business interests of
advance the legitimate
Pro-
Rule of Civil
Pennsylvania
advance his own interests.
on which
facts
1019(a)
cedure
that:
material
requires
“[t]he
in a
based shall be stated
a cause of action or defense is
is to
“The
of the rule
purpose
form.”
concise and
‘material facts’ sufficient
to disclose the
require
pleader
v.
his case.” Landau
to enable
party
prepare
the adverse
Bank,
445
at
supra,
Western
National
Pennsylvania
339;
397 Pa.
County,
282
v. Allegheny
A.2d at
Smith
(1959).
A.2d 615
of a
are
conspiracy
Averments
easily
Landau сase
made;9 however,
in the
case,
instant
as in the
mentioned,
we have
there has been a failure to
previously
of a
present
support
material
facts to
the bald accusations
or more
each
persons,
“The mere fact that
two
conspiracy.
at the
happen
thing
with the
to do a
to do that
right
thing,
Fife v.
conspiracy.”
same time is not
itself an actionable
Co.,
Tea
supra,
Great Atlantic and Pacific
356 Pa. at
Halford,
v.
39;
138,
Appellants
fact,
substanti
which would
any
of the record fails to evince
and
that Johnston combined
allegation
ate the
to injure appellants.
unlawful
intent
Pike
with the
Coal
on the
therefore,
entered
properly
Summary judgment,
appellants
Johnston because
involving
conspiracy charge
fact.
failed to
issue of material
raise a genuine
Johnston was
conspiracy charge against
Once
and Pike
eliminated,
against Ralph
charges
the conspiracy
A conspiracy
a matter of law.
failed as
necessarily
Western
Landau v.
conspirators.
at
least
two
requires
v.
Atlantic
Bank,
Fife
Great
supra;
National
Pennsylvania
Reiff,
Col
supra;
v.
Co.,
Bausbach
supra;
and Pacific Tea
Common
Cf.
Cronin,
Commonwealth
13, 116
Salerno,
Pa.Super.
Commonwealth
where
conspiracy,
for criminal
(1955) (in
charge
A.2d 87
is acquitted,
two
and one
are only
conspirators
there
Furthermore,
there
convicted).
other cannot be tried or
Pike
between
no conspiracy
could have been
Strong
(1861),
observed:
Sanner,
Justice
In Benford v.
though
guilt,
against
presumption
law is
The humane
evidence,
proved by
ordinarily
circumstantial
conspiracy
be
must
easily
conspiracy
charge
is
forgotten
yet
that the
it is not to be
competi-
made,
between
[or
between creditors
and that in a race
connection,
re-
not to be
guilty
possibility
suspicion,
tors]
case,
case,
especially in such a
proof
in such a
ceived as
however,
declarations
proved,
acts and
when the connection
*13
party accused.
against the
become evidence
of others
into an illegal
hаve entered
. To hold that
could
Coal
was
of which he
sole stock-
entity
agreement
legal
or ration-
holder,
legal
be without
director and officer would
en-
properly
was therefore
al basis. Summary judgment
conspiracy charge.
Pike
on the
tered as to
claims, appellants
of the above
In
will all
conjunction
when the
granted
cannot be
judgment
argue
To
which is
proof
disputed.
oral
upon
case rests
plaintiff’s
Protect
Bremmer v.
this
cite
support
proposition, appellants
494, 498,
785,
Co.,436 Pa.
ed Home Mutual Life Ins.
statеs:
(1970), which
Pennsylvania
it has
been the rule in
Additionally,
long
having
of the
the burden
party
that where the testimony
is
oral,
testimony
always
of that
proof
credibility
601,
Mamone,
In Bremmer, that an insured had procured it was misleading of insurance false and information policy through on issue was provided application for that The policy. one of and the trial court erred in credibility entering summary judgment because the issue of credibility court, a matter for the and not clearly jury, deter- mine. Wе have no issue here. credibility Assuming every- truth, thing that as appellants argue accepted pristine appellants fail to make out a facie case as a matter of prima
law, not as tenant, a matter of As a Leroy’ fact. was owed no of care duty the of his landlord as to guardians the disposition of the legal the minerals. As we stated right honored; tenant were previously, Leroy’s as a conveyances were all made to his legal rights subject leasehold interest.
If issue, is in oral proof requires jury’s credibility entering considеration and of a prevents summary judg case, ment. But if fails to establish a plaintiff prima facie the mere fact that his is oral does not a basis proof provide Bremmer did jury. obviously the issue before a placing such sacro conferring upon proof not oral contemplate any quality. sanct orders of
The order of the Court Superior affirming hereby Pleas of County Court of Common Clearfield affirmed.
LARSEN, J., dissenting filed a opinion.
MANDERINO, J., notes his dissent.
LARSEN, Justice, dissenting. dissent; grant-
I should not have been judgment be fact which should ed. There are issues of genuine resolved aby jury. Pennsylvania
COMMONWEALTH WATTS, Appellant. A. James Supreme Pennsylvania. Court of
Argued 1979. Oct. 1,
Decided Feb. 3, 1980. April Reargument Denied