It happens all the time. I’m on the phone with a founder, an investor, a CEO, a General Counsel, or another commercial client walking through a fresh problem.
As a Pennsylvania Commercial Litigation Lawyer, I hear some version of the same line again and again: “They did this, it hurt our position in the market, it feels like tortious interference. Should we sue?”
It’s not an unreasonable instinct. When someone behaves unfairly, pressures a partner, spreads damaging information, or disrupts a business opportunity, it’s natural to reach for a legal remedy that seems to fit. But whenever someone raises tortious interference as the first thought, I usually urge a moment of caution and restraint.
After one too many conversations — on both the plaintiff and defense side — explaining what tortious interference is and what it is not, it has been on my list to write a clear guide for clients and prospective clients.
Then, last week, an opinion from Judge Gallagher of the United States District Court for the Eastern District of Pennsylvania in Zahler v. Jackson Lewis gave a good reminder about some of the challenges facing tortious interference claims. It prompted me to finally put these thoughts down and walk through the state of the law as I’ve come to understand it through at least a few conversations like these.
What Is Tortious Interference: Pennsylvania Commercial Litigation Lawyer Explains
Before diving into the cases, it helps to ground the conversation in what tortious interference actually requires under Pennsylvania law.
To prevail on tortious interference with contractual relations, a plaintiff must prove:
- The existence of a contractual or prospective contractual relationship with a specific third party
- Purposeful action by the defendant intended to interfere with that relationship
- The absence of privilege or justification
- Actual legal damage caused by the defendant’s conduct
These elements look straightforward, but in practice they are more complex than they first appear. The first element trips up many plaintiffs because it requires a concrete, identifiable relationship — not a general market opportunity, not a hope of future business, not “we were in discussions,” but a real contract or a prospective contract with a reasonable probability of coming together. Courts repeatedly stress that mere hope is not enough — we’ll get into some examples below.
The fourth element is just as demanding. It requires proof that the interference actually caused legally recognizable harm. It is not enough that someone’s conduct was unfair, or even harmful in a business sense. The plaintiff must show that but for the defendant’s actions, the contract would have materialized or continued, and that damages flowed directly from that causation.
Understanding these two pressure points is critical. As a Pennsylvania Commercial Litigation Lawyer, these are the issues I end up discussing most often with clients. People understandably focus on the unfairness they experienced.
The law focuses on whether a specific contract was lost, and whether the defendant caused that loss in a way the law considers improper. This distinction between business reality and legal reality is why tortious interference claims demand careful analysis before anyone files a complaint.
The new federal case: Zahler v. Jackson Lewis Clarifies the Standard In Tortious Interference
The plaintiff in Zahler had a sophisticated professional background. He worked as a federal contractor, participated in the U.S. Faster Payment Council’s QR-code working group, and held provisional patents relating to camera-less QR technology.
After a termination that he believed was retaliatory, he alleged that the defendants published false information about his disclosures, damaged his reputation, interfered with his ability to maintain federal contractor status, and derailed emerging business opportunities. It all felt like interference.
The problem was that the complaint never identified a single concrete contractual partner. There was no specific business deal, no named organization poised to sign an agreement, no clearly described contract in negotiation. Instead, the plaintiff pointed to general professional status, working-group involvement, patents, and potential federal work.
Judge Gallagher explained that this is not enough. Under Pennsylvania law, a plaintiff must plead:
- A specific existing contract, or
- A prospective business relationship with a reasonable probability of forming.
The court emphasized the word reasonable. Not a mere hope. Not a professional aspiration. There must be a named party and concrete facts supporting a real probability that a contract would have formed. Because those elements were missing, the claim failed.
Zahler is a clear example of the challenges plaintiffs face in tortious interference cases. Taking Mr. Zahler’s allegations as true, he had understandable reasons to feel wronged and believed his professional opportunities were undermined. But the law construes these claims more narrowly than many expect.
As a Pennsylvania Commercial Litigation Lawyer, I see this often. A client or prospective client comes in after a former partner, competitor, or industry player has done something genuinely unfair. They’ll say, “This is going to hurt our customers, our standing in the market, maybe even our future growth.”
From a business standpoint, they may be absolutely right. But the legal standard is different. Pennsylvania requires a specific contract or a clearly identifiable prospective customer, along with real evidence that, but for the alleged interference, that relationship would have materialized.
Mere hope, general market positioning, or ordinary solicitation is not enough. That gap between business reality and legal reality is where these claims often falter.
When pressure crosses the line: Pennsylvania Commercial Litigation Lawyer Explains What Is Tortious Interference
The Pennsylvania Superior Court’s decision in Maverick Steel Co. v. Dick Corp./Barton Malow shows the opposite scenario, where the plaintiff had real traction. The underlying project was the construction of the PNC Stadium. W&K, a subcontractor, suffered massive cost overruns caused by third-party delays. Its surety, USF & G, was not contractually obligated to cover these extra costs. The general contractor, DBM, was running out of money and wanted the surety to pay.
What followed was a documented pressure campaign. The record included letters threatening grave financial consequences, warnings of bad-faith litigation, and communications demanding that the surety fund the cost of completion despite having no contractual duty to do so.
Internal memos showed that DBM intended to target the surety as a source of funds. As a result, the surety froze bonding for W&K and eventually entered an interim funding agreement. This damaged the subcontractor’s ability to operate and later contributed to bankruptcy.
Unlike Zahler, the contractual relationship was concrete. The conduct was intentional. The interference had a clear causal impact. And the pressure tactics, depending on the fact finder’s view, could be deemed improper for purposes of the tort.
It is important to note that this decision arose after years of litigation, motion practice, and a trial. The court was reviewing the denial of summary judgment, not a bare set of allegations. This distinction matters. Strong evidence supported the interference theory.
From the perspective of a Pennsylvania Commercial Litigation Lawyer, Maverick is useful because it shows the kind of fact pattern that survives scrutiny: specific relationships and documented conduct.
So when you are considering a tortious interference claim, it’s important to consider: do you have a specific, well-documented relationship, with serious evidence of interference, like Maverick? Or is it more aspirational like Zahler?
Similarly, if you’ve been sued or received a demand letter alleging tortious interference, ask yourself: does the alleged contract detail specific impropriety with specific parties, or is it more vague and general. If the latter, as is often the case, it may be ripe for early resolution such as a motion to dismiss in federal court or a preliminary objection in Pennsylvania state court.
The Other Hurdle With Tortious Interference: Privilege
Even if you can identify a specific relationship beyond mere hope, that still isn’t enough. A plaintiff must also show a lack of privilege. This is where many otherwise promising claims collapse. Privilege, in this context, simply means that the defendant had a legally recognized right to compete, negotiate, or advocate for its own economic interests.
Not every action that harms another business is wrongful in the eyes of the law. The question becomes whether the defendant stepped outside the bounds of legitimate competition and into conduct that the law views as improper.
The third case, UniStrip Technologies v. LifeScan, offers a deeper look at this issue. UniStrip created a generic test strip compatible with LifeScan’s glucose meters. After UniStrip entered the market, LifeScan adopted an exclusivity strategy with resellers. The complaint alleged that LifeScan conditioned rebates and discounts on not carrying UniStrip’s product, and that resellers feared the financial consequences of losing those rebates.
The tortious interference claims split into two categories.
Prospective contractual relations
The court dismissed these claims because UniStrip could not identify specific contracts that were likely to materialize. The complaint listed potential partners such as Walgreens, Burlington Drug, and AmerisourceBergen, but did not show:
- negotiations,
- commitments,
- purchase orders, or
- any objective basis to conclude a contract was likely.
The court cited the familiar principle: more than a mere hope is required. This is consistent with Zeller and with decades of Pennsylvania law.
Actual contractual relations
UniStrip did, however, identify one concrete relationship. Discount Drug Mart had already placed an order for UniStrip test strips. After LifeScan contacted the reseller and suggested that Medicare and insurer rebates would be jeopardized if they purchased UniStrip products, the reseller returned the order. That was enough to plead interference with an existing contract.
The question then became whether LifeScan’s conduct was improper. Competition in itself is privileged. A company can enter exclusivity arrangements, offer incentives, or compete ambitiously for reseller loyalty. But conduct tied to an independent legal violation can cross the line. In UniStrip, the court allowed the claim to proceed in part because the complaint alleged an anticompetitive scheme that could violate federal antitrust laws. If true, the privilege would not apply.
This is where the role of a Pennsylvania Commercial Litigation Lawyer becomes crucial. We must untangle when competitive behavior is protected and when it becomes improper interference. UniStrip Technologies teaches that the presence or absence of privilege often decides the fate of these claims.
What All This Means for a Pennsylvania Founder or Business Leader
So what does all this mean for a Pennsylvania founder, partner, CEO, general counsel, investor, or anyone else considering a tortious interference claim? As with any litigation, the first step is not the law — it is your goal. What are you trying to accomplish? What outcome actually serves your business?
Once your goal is clear, then look at the elements of the tort, with particular attention to the first and the fourth. The first element requires a specific, identifiable contract or a genuinely probable prospective contract. Not a hope, not a possibility, not a broad business opportunity. The fourth requires real evidence that, but for the alleged interference, the relationship would have gone forward and produced actual, measurable harm. Many situations that feel unfair — and may be unfair — still fail under these standards.
Even when the elements can be met, Maverick shows how fact-intensive and prolonged these cases can become. There is a viable path to recovery in the right circumstances, but it is important to count the cost before committing to the litigation.
If you are a defendant who has been sued or received a demand letter alleging tortious interference, the same two elements — the first and the fourth — are often the best place to begin your evaluation. If they are missing, you may have a strong basis for a motion to dismiss in federal court or a preliminary objection in Pennsylvania state court. And if they are present, it is worth thinking carefully about whether early resolution or a longer, more strategic litigation posture better serves your interests.
I do not fault clients for misunderstanding this doctrine. It is not intuitive, and the gap between business reality and legal reality can be frustrating. My hope is that this article brings some clarity to a complicated area of Pennsylvania commercial litigation.
faq
1. What is required to prove tortious interference in Pennsylvania
You need a specific existing contract or a clearly identified prospective contract with a reasonable probability of forming. You must also show intentional and improper interference, absence of privilege, and actual damages. As explained in the article, these are a little more complicated than they appear.
2. Is wrongful termination tortious interference
Usually not. Termination may be wrongful for other reasons, but unless the employer’s conduct intentionally disrupted a separate contract with a third party, it does not meet the standard.
3. Can pressure or negotiation be tortious interference
Only if the conduct is improper. Hard bargaining and competition are permitted. Threats, defamation, coercion, misuse of legal process, or illegal conduct are not allowed. The key is this: is the conduct independently illegal or unlawful, or just hard-nosed?
4. Does antitrust behavior affect a tortious interference claim
Yes. If interference forms part of an anticompetitive scheme that violates federal or state antitrust laws, privilege may be lost, making an interference claim viable.
5. Why do many tortious interference claims fail early in litigation
Most fail because the plaintiff cannot identify a specific contractual relationship, cannot show a reasonable probability of forming one, or cannot allege improper conduct beyond ordinary competition. Simply ‘hoping’ that a contract pans out is not enough. There must be a reasonable expectation that the contract would have been formed. Similarly, the conduct alleged must be unlawful, not merely hard-nosed or tough competition.
6. Should I bring a tortious interference claim if I feel someone harmed my business
Possibly, but the claim requires careful legal analysis and evidence. A Pennsylvania Commercial Litigation Lawyer will need to evaluate your contracts, communications, damages, and the motives and methods of the other party.
