Martin v. Finley (349 F. Supp. 3d 391, 2018)

Robert D. Mariani, United States District Judge

I. INTRODUCTION AND PROCEDURAL HISTORY

This is an action for several causes under Pennsylvania state law arising from an acrimonious business dispute between Plaintiff, Michael Martin ("Plaintiff" or "Martin"), and two of his fellow business partners in a medical device company based in Scranton, Med-Dev Corporation ("Med-Dev"), Defendants Thomas Finley ("Finley") and George Albanese ("Albanese"), and the attorney retained purportedly on behalf of Med-Dev, Defendant Amil Minora ("Minora") (collectively, "Defendants"). Against Finley and Albanese, Martin alleges tortious interference with existing contractual relations, abuse of process, defamation and false light invasion of privacy, and intentional infliction of emotional distress ("IIED"). Martin also alleges abuse of process and IIED against Minora. This Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1) because there is diversity of citizenship between Martin, a Virginia citizen, and the Defendants, who are either Pennsylvania or New Jersey citizens, and the amount in controversy is more than $75,000. (Doc. 1 ¶¶ 1-6).

Minora filed a motion to dismiss Martin's Complaint on November 2, 2015. (Doc. 22). The Court referred this motion to Magistrate Judge Carlson for issuance of a Report and Recommendation ("R & R"). After briefing from the parties, Magistrate Judge Carlson issued an R & R in which he recommended denying Minora's motion with respect to Martin's malicious prosecution, abuse of process, and IIED claims, but granting it with respect to Martin's defamation and negligent infliction of emotional distress claims. (Doc. 60). By memorandum opinion and order dated February 15, 2017, the Court adopted in part and rejected in part the Magistrate Judge's R & R, and in doing so dismissed Martin's claims against Minora for malicious prosecution, defamation and false light, and negligent infliction of emotional distress, leaving claims for abuse of process and IIED. (Docs. 64, 65).

Finley, Albanese, and Moore filed a motion for judgment on the pleadings on March 9, 2016. (Doc. 37). This motion was likewise referred to Magistrate Judge Carlson for issuance of an R & R. Magistrate Judge Carlson issued an R & R in which he recommended denying the motion with respect to Martin's tortious interference, unjust enrichment, malicious prosecution, abuse of process, defamation, and IIED claims, but granting it with respect to his negligent infliction of emotional distress claim. (Doc. 63). The Court adopted in part and rejected in part the Magistrate Judge's R & R, dismissing the malicious prosecution and negligent infliction of emotional distress claims, but retaining the remaining claims as to those Defendants (tortious interference, abuse of process, defamation/false light, and IIED). (Doc. 66).

Defendants have filed separate motions for summary judgment with accompanying briefs in support ("Motion(s)"). (Docs. 108, 122 (Albanese), 111, 125 (Finley), 116, 123 (Minora) ). Martin has opposed these motions ("Opposition(s)"). (Docs. 129 (Opposition to Albanese), 143 (Opposition to Minora), 145 (Opposition to Finley) ). Only Albanese submitted a reply to Martin's Opposition ("Reply"). (Doc. 137). Martin did not file a crossmotion for summary judgment against any Defendant. Accordingly, the Motions are ripe for review. Because Defendants have submitted similar or nearly identical statements of purportedly undisputed fact and raise the same arguments in their Motions, and Martin's Opposition to each Motion is likewise mirrored, the Court will consolidate its analysis of the Motions in this Opinion. For the reasons that follow, Defendants' Motions will be granted in part and denied in part.

II. STATEMENT OF UNDISPUTED MATERIAL FACTS

The following facts are undisputed except where specifically noted as disputed.

In June 2012, Plaintiff was the sole incorporator of Med-Dev, a Delaware corporation. (Docs. 108 ¶ 1, 112 ¶ 1, 117 ¶ 1). At least part of the reason for the formation of Med-Dev was to distribute "a novel intra-nasal clip that was intended to serve as a non-antibiotic treatment for nasal methicillin-resistant infections." (Doc. 117 ¶ 2). The initial shareholders of Med-Dev included Plaintiff, Defendant Finley, Defendant Albanese, and several others. (Docs. 109 ¶ 2, 112 ¶ 2). Neither Plaintiff nor any of the Defendants invested any money into Med-Dev, as separate investors provided the financial capital. (Docs. 109 ¶¶ 3-5, 112 ¶¶ 3-5).

Plaintiff served as the initial Chairman of the Board of Directors of Med-Dev ("Board"), (Docs. 109 ¶ 9, 112 ¶ 9, 117 ¶ 3), and was "a Director and Officer of Med-Dev," (Docs. 109 ¶ 17, 112 ¶ 17). His duties "included attracting investors, distribution of products, sales, testing of the products, and overall direction of the Company." (Docs. 109 ¶ 10, 112 ¶ 10, 117 ¶ 4). Plaintiff never had any other official title at Med-Dev, (Docs. 109 ¶ 11, 112 ¶ 11), but he asserts he functionally served as the CEO of Med-Dev at times, "rais[ing] money and organiz[ing] individuals to do what they needed to do to get things done," (Docs. 128 ¶ 12, 144 ¶ 12). Finley served as the President of Med-Dev, and "his duties included taking care of the check books, paying the expenses, balancing the books on a monthly basis, and the operations of the company." (Docs. 109 ¶ 13, 112 ¶ 13, 117 ¶ 5). The members of the Board in 2013 were Plaintiff, Finley, Moore, and William Peters, M.D. (Docs. 109 ¶ 14, 112 ¶ 14). Albanese was appointed to the Board on January 16, 2014, (Docs. 109 ¶¶ 15-16, 112 ¶¶ 15-16), although Plaintiff contends that Albanese resigned from the Board shortly afterwards, (Docs. 128 ¶¶ 15-16, 144 ¶¶ 15-16). Albanese was later appointed Chairman of the Board on April 29, 2014-an appointment later invalidated by the Delaware Chancery Court. (Id. )

Upon forming Med-Dev, Plaintiff adopted a set of bylaws for the company ("Bylaws"), (Docs. 109 ¶ 36, 112 ¶ 32), although he asserts that they were never formally adopted by the Board, (Docs. 128 ¶ 36, 144 ¶ 32). The Bylaws outline the rules governing the conduct of the internal affairs of Med-Dev, although Plaintiff contends that Med-Dev rarely, if ever, followed the Bylaws, stating that "Med-Dev operated informally and there were no Board Resolutions for any of the actions taken by the Board." (Docs. 128 ¶¶ 39-42, 144 ¶¶ 35-37). The Bylaws state: "The business and affairs of the Corporation will be managed by or under the direction of its Board who may exercise all such powers of the Corporation." (Docs. 109 ¶ 37, 112 ¶ 33). Authorized committees with designated power and authority can be designated by the Board, upon Board resolution. (Docs. 109 ¶ 39, 112 ¶ 35). The Bylaws further state that contracts or transactions between Med-Dev and its Directors or officers "will not be void or voidable ... solely because the Director or Officer is present at or participates in the meeting of the Board or committee thereof that authorizes the contract or transaction ..., if" material facts regarding the Director or Officer's interest are known or disclosed to the Board or authorized committee or shareholders and the contract or transaction is approved by vote of the Board or shareholders, or the contract or transaction is "fair" and is otherwise approved by the Board, authorized committee, or shareholders. (Docs. 109 ¶ 38, 112 ¶ 34). The Bylaws also state that Board Directors can receive compensation "for their services and reimbursement for their expenses" by Board resolution, although a resolution is not needed for compensation paid to Directors "serving the Corporation in any other capacity." (Docs. 109 ¶ 41, 112 ¶ 36).

"On December 10, 2012, [Plaintiff] executed a Consulting Agreement 'to render services as Chairman of the Board of Directors' of Med-Dev in return for compensation of $15,000 per month for a three year term commencing January 1, 2013." (Docs. 109 ¶ 46, 112 ¶ 41). Finley signed the Consulting Agreement as President of Med-Dev, and Plaintiff signed it as Consultant. (Docs. 109 ¶ 47, 112 ¶ 42). Plaintiff's Consulting Agreement prohibited the assignment of the Consultant's rights, duties, or obligations under the Consulting Agreement "without the prior written consent of [Med-Dev]," and did not "provide for any other payments or benefits such as health insurance to be paid to [Plaintiff]." (Docs. 109 ¶¶ 55, 58, 112 ¶¶ 49, 52). The Board never formally voted to approve Plaintiff's Consulting Agreement or the payment of health benefits to Plaintiff. (Docs. 109 ¶¶ 48, 52, 59, 62, 112 ¶¶ 43, 53, 56). However, Plaintiff asserts that the Consulting Agreement was valid because Finley, as Med-Dev's President, signed it, and it was further "ratified and consented to by Med-Dev through the continued payments of compensation to [Plaintiff] in accordance with the terms of the Agreement." (Docs. 128 ¶ 48, 144 ¶ 43). Finley and Board Director Peters also were paid monthly compensation by Med-Dev under similar agreements, and these also were not formally approved by the Board. (Docs. 109 ¶ 64, 122 at 36, 125 at 4, 36, 128 ¶¶ 38, 43, 144 ¶¶ 34, 38). The parties dispute whether Plaintiff was paid under the Consulting Agreement solely as Chairman of Med-Dev, or in another role, (Docs. 109 ¶ 54, 112 ¶ 48, 128 ¶ 54 (Plaintiff asserting that compensation "was for the services he provided for the operation of Med-Dev"), 144 ¶ 48 (same) ), but do not dispute that "[t]he Consulting Agreement specifically states that [Plaintiff] is 'an independent contractor and not an employee of the Company,' " (Docs. 109 ¶ 60, 112 ¶ 54).

Arguments about Plaintiff's use of Med-Dev funds began in earnest in late 2013 and into early 2014. (Docs. 109 ¶¶ 85, 92, 112 ¶¶ 77, 84, 117 ¶¶ 6, 12). The parties do not dispute that Plaintiff improperly used $2,500 of Med-Dev funds in 2013 to pay a legal bill to the Mauro Savo law firm that was unrelated to Med-Dev. (Docs. 109 ¶¶ 70-74, 112 ¶¶ 62-66, 117 ¶¶ 7-11, 128 ¶¶ 70-74, 142 ¶¶ 7-11, 144 ¶¶ 62-66). However, Plaintiff contends that this payment was an honest mistake arising out of confusion regarding the name of what he mistakenly thought was a predecessor LLC to Med-Dev, and that he informed Med-Dev's corporate counsel, Attorney Joseph Tomasek, as soon as he learned of the purported mistake. (Docs. 128 ¶ 70, 142 ¶ 7, 144 ¶ 62). The parties also do not dispute that Plaintiff used Med-Dev funds to pay $8,517 in expenses at a country club that were unrelated to Med-Dev business. (Docs. 109 ¶¶ 75-76, 112 ¶¶ 67-68, 117 ¶¶ 14-15, 128 ¶¶ 75-76, 142 ¶¶ 14-15, 144 ¶¶ 67-68). However, the parties dispute the propriety of Plaintiff charging his health insurance premiums to his Med-Dev debit card. (Docs. 109 ¶¶ 78-79, 112 ¶¶ 70-71, 117 ¶¶ 18-19, 128 ¶¶ 78-79, 142 ¶¶ 18-19, 144 ¶¶ 70-71). Finley and Albanese and Plaintiff also disagree on the propriety of Plaintiff's directing his fees paid under his Consulting Agreement to an LLC owned by Plaintiff, Scotland Yarns, LLC. (Docs. 109 56-57, 112 ¶¶ 50-51, 128 ¶¶ 56-57, 144 ¶¶ 50-51). The parties agree that Plaintiff did not separately reimburse Med-Dev for the Mauro Savo legal fees or country club expenses, and that Plaintiff offered to offset the $2,500 in legal fees paid to Mauro Savo against expenses he had not yet turned in to Med-Dev. (Docs. 109 ¶ 86-87, 112 ¶ 78-79, 117 ¶ 13, 17). Plaintiff also claims he offset the $8,517 in country club expenses, and that Med-Dev owed him $52,000 in unpaid consulting fees and unreimbursed expenses by early 2014. (Docs. 128 ¶ 87, 142 ¶ 17, 144 ¶ 79). In his portion of the record, Plaintiff includes a sworn statement from Attorney Tomasek that states that Finley and Albanese did not communicate with Martin about the alleged expenditure issues or discuss the issues at Board meetings that the attended, and that he counseled them to speak with Martin "so he would have the opportunity to rebut or explain the charges and ultimately resolve the issues." (Doc. 144-16 ¶¶ 14-15).

Finley closed Med-Dev's Wells Fargo bank account in January 2014 to prevent Plaintiff from accessing Med-Dev funds, and told him he was closing the account "because [Plaintiff] was taking consulting fees from it" and "because [Finley] thought [Plaintiff] was misappropriating corporate funds." (Docs. 109 ¶¶ 91-93, 112 ¶¶ 83-85). Plaintiff asserts that Albanese was involved in this decision as well. (Doc. 128 ¶ 91). January 2014 was also the last month that Plaintiff received his monthly consulting fee from Med-Dev. (Docs. 109 ¶ 66, 112 ¶ 58). In addition to Finley's actions, Minora was also hired in March 2014 to investigate Plaintiff's use of corporate funds. (Docs. 109 ¶ 82, 112 ¶ 74, 117 ¶¶ 21-22). At the time of his hiring, Minora was a Scranton attorney in private practice, but the parties dispute whether he was a former or current prosecutor for the Lackawanna County District Attorney's Office ("LCDA"). (Docs. 117 ¶ 23, 128 ¶ 110, 142 ¶ 23, 144 ¶ 116). Plaintiff asserts that Minora's hiring was not on behalf of Med-Dev, but was rather orchestrated by Defendants Finley, Albanese, and Moore, as Board Director Peters was not aware of Minora's hiring; Plaintiff further asserts that there was no written engagement letter between Med-Dev and Defendant Minora. (Docs. 128 ¶ 96, 142 ¶ 21, 144 ¶ 88).

Around this time, Plaintiff "offered to resign as Director and Chairman of the Board of Med-Dev effective April 19, 2014 contingent on Edward Lipes ('Lipes') and Gregory Rainey ('Rainey') being appointed to the Board." (Docs. 109 ¶ 21, 112 ¶ 19). "At the time of his resignation from Med-Dev on April 19, 2014, [Plaintiff] believed the company had 'gotten dysfunctional,' it was 'heading off a cliff,' and Dr. Moore and Finley had 'gone rogue.' " (Docs. 109 ¶ 26, 112 ¶ 24). Defendants Finley and Albanese and Plaintiff dispute whether the allegations surrounding Plaintiff's unauthorized expenditures were the driving force behind Plaintiff's offer to resign, (Docs. 109 ¶¶ 21, 28, 112 ¶¶ 19, 26), although Plaintiff acknowledges that the allegations were "distracting Med-Dev from its mission" and he wanted "to end the distractions and allow Med-Dev to move forward," (Docs. 128 ¶¶ 21, 28, 144 ¶¶ 19, 26). "[Plaintiff] signed a written resignation letter April 19, 2014 prepared by Attorney Tomasek that was unconditional." (Docs. 109 ¶ 22, 112 ¶ 20). Plaintiff later informed Med-Dev he was retracting his resignation offer because Lipes and Rainey were not appointed to the Board, and the Delaware Chancery Court officially reinstated Plaintiff as a Director on the Med-Dev Board on October 27, 2015, ruling that Attorney Tomasek should have disclosed to Plaintiff that Med-Dev viewed the resignation as unconditional and that Med-Dev did not satisfy the terms of the resignation offer originally presented to Plaintiff. (Docs. 109 ¶¶ 23, 25, 112 ¶¶ 21, 23). Plaintiff is emphatic that he was not "forced to resign" from the Med-Dev Board, (Doc. 128 ¶ 119), and also notes that he told Finley and Albanese in December 2013, prior to the unauthorized expense issues being raised by Finley, that he was planning to resign in the first half of 2014, (Docs. 128 ¶ 33, 144 ¶ 26).

Also around the time of Plaintiff's resignation from the Board and his subsequent retraction of the resignation, Defendant Minora's "investigation" into Plaintiff's use of corporate funds led to the initiation of a criminal complaint with the LCDA. (Docs. 109 ¶ 99, 112 ¶ 91, 117 ¶ 30). Plaintiff contends that Defendant Minora filed the criminal incident report with the LCDA on behalf of Defendants Finley, Albanese, and Moore, not on behalf of Med-Dev, and that Defendant Minora "did not conduct any individual factual investigation into [Plaintiff's] use of Med-Dev corporate funds." (Docs. 128 ¶¶ 97, 99, 142 ¶¶ 28, 30, 144 ¶¶ 89, 91). However, the parties agree that "[Defendant] Minora reviewed internal Med-Dev documents, he spoke to an attorney at Mauro Savo, he spoke to Attorney Tomasek, and he sent correspondence to the Mauro Savo firm." (Docs. 109 ¶ 83, 112 ¶ 75, 117 ¶ 24). After this review, Defendant Minora spoke with LCDA detectives. (Docs. 109 97-98, 112 ¶¶ 89-90, 117 ¶¶ 28-29). " 'Based upon information [Defendant] Finley provided, [LCDA Detective] Bauer obtained two search warrants. The first was to obtain [Plaintiff's] bank records; the second sought Med-Dev's bank records in order to verify what [Defendant] Finley and [Defendant] Minora had reported." (Doc. 117 ¶ 31). LCDA Detective Bauer found, from review of bank records, that Plaintiff had made the improper $2,500 payment to the Mauro Savo law firm. (Doc. 117 ¶ 32).

The parties vigorously dispute exactly what happened next. All agree that Plaintiff's attorneys at the time contacted the LCDA and Defendant Minora on or about May 27, 2014 to suggest that the criminal investigation be halted to discuss a possible civil settlement between Plaintiff and Med-Dev, and that "[Plaintiff] authorized his attorneys to try and settle with Med-Dev to avoid possible criminal charges against him." (Docs. 109 ¶¶ 100-101, 112 ¶¶ 92-93, 117 ¶¶ 33, 35). However, the parties disagree on how settlement negotiations proceeded. Defendants state that [Plaintiff's] attorneys were the ones that proposed that Plaintiff would agree to give up his Med-Dev stock and resign from Med-Dev. (Docs. 109 ¶ 102, 112 ¶¶ 94, 106-07, 117 ¶¶ 36-37, 41). Plaintiff contends that it was Defendants who pursued this course:

To the contrary, it was [Defendant] Attorney Minora who indicated to Martin's attorneys that his clients wanted [Plaintiff] out of the Company and if they could achieve this by settlement, his clients would not continue to advocate for [Plaintiff's] criminal prosecution ... [Defendant] Attorney Minora raised the idea of a settlement agreement and volunteered to draft the settlement agreement.

(Docs. 142 ¶¶ 36-37, 144 ¶¶ 106-07). The parties also dispute whether [Defendant] Minora's August 2014 communication with [Plaintiff's] lawyers constituted a threat that if Plaintiff did not sign the settlement agreement, Defendants would seek criminal charges against Plaintiff, and that Defendants had a corrupt purpose in filing the initial criminal complaint with the LCDA. (Docs. 109 ¶¶ 104, 110, 128 ¶¶ 104, 110, 112 ¶¶ 96, 116, 117 ¶¶ 42-44, 142 ¶¶ 42-44, 144 ¶¶ 96, 116). The LCDA terminated its criminal investigation in September 2014, and Plaintiff asserts that Defendants tried to get the LCDA to reopen the investigation by going to another assistant district attorney, but were unsuccessful. (Docs. 128 ¶ 110, 142 ¶ 43).

The relationship between the parties continued to deteriorate. On August 20, 2014, a newsletter (the "Newsletter") was sent to at least some of Med-Dev's shareholders, investors, and partners, a portion of which included the following text:

Internal Happenings

On April 19, 2014, after an extensive internal Investigation into the alleged mishandling/misappropriation of Med-Dev corporate funds, Michael G. Martin was forced to resign as Chairman of the Board & Corporate Officer of Med-Dev. Mr. Martin is no longer associated with Med-Dev and accordingly should not be communicated with to discuss any Med-Dev Corp. business activities.

Also, William P. Peters, MD, PhD resigned as an Independent Board member and as CEO. Dr. Peters continues to remain a founding member of Med-Dev.

(Doc. 112-4 at 61). Additionally, a lengthy document (the "Manifesto") was sent to Med-Dev's shareholders, investors, and partners in January 2015 that included the following text:

Subject: Michael G. Martin Unauthorized Use of Corporate Funds and Abuse of his position as an Officer and Chairman of the Board of Directors.

In the near future, a conference call will be scheduled to discuss the information contained in this document and answer any pertinent questions.

The following issues are directly related to the violation of Michael G. Martins [sic] (MARTIN) fiduciary responsibility as an Officer & Chairman of the Board of Med-Dev Corp., including:

1.) Unauthorized personal use by MARTIN of Med-Dev corporate funds and,

2.) The abuse of his position as the former Chairman of the Board to execute NDA's, Master Service Agreements and Contracts for personal and unrelated ventures.

3.) Reckless negotiation and attempt to commit Med-Dev to contracts beyond its ability to fulfill.

(Doc. 109-2 at 129) (bold print in original). The Manifesto also contained reference to the purported failure of Plaintiff "to disclose his indictment, arrest and arraignment for Theft by Deception in Bergen County, NJ on Thursday May 7, 2009." (Id. ) It also stated that " '[i]t is understood that [Plaintiff] fully and intentionally entered into the Consulting Agreement under false and deceptive pretenses... [and that] [t]his assertion is confirmed by Joseph Tomasek, Esq., former Med-Dev Corporate Counsel." (Id. ) Plaintiff argues that Defendants should have known he never pled guilty to the Bergen County charges, and attaches an affidavit from Tomasek stating that: "At no time did I ever advise Mr. Finley, Mr. Albanese, Dr. Moore, or Attorney Minora that when speaking to any investors about their investment in Med-Dev they must advise the investors that [Plaintiff] committed a felony in New Jersey." (Doc.144 ¶ 82, 144-16 ¶ 9).

Defendants Finley and Albanese also contend that Tomasek "directed Med-Dev to notify the Med-Dev investors about [Plaintiff's] unauthorized expenditures," (Docs. 109 ¶ 88, 120, 112 ¶ 80, 98), but Plaintiff responds that Tomasek did not direct Med-Dev to send out the Manifesto, because he had left the company in December 2014, and that Tomasek's previous instruction to Med-Dev in April 2014 to update the shareholders and investors on the expense issue did not entitle Defendants to disseminate false information, (Docs. 128 ¶¶ 88, 120, 144 ¶¶ 80, 98). The parties further dispute whether Defendant Finley acted alone in preparing and sending the Newsletter and Manifesto. (Docs. 109 ¶¶ 111-21, 128 ¶¶ 111-21).

With respect to Plaintiff's alleged emotional distress he suffered at the hands of Defendants, the parties agree that Plaintiff "has not produced a medical expert report to prove his emotional distress claim at trial," and that, at the least, he has not had specific treatment solely for anxiety or counseling since January 1, 2013. (Docs. 109 ¶¶ 122-23, 112 ¶¶ 99-100, 117 ¶¶ 48-49, 128 ¶¶ 122-23, 142 ¶¶ 48-49, 144 ¶¶ 99-100).

III. STANDARD OF REVIEW

Through summary adjudication, the court may dispose of those claims that do not present a "genuine dispute as to any material fact." Fed. R. Civ. P. 56(a). "As to materiality, ... [o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The party moving for summary judgment bears the burden of showing the absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must offer specific facts contradicting those averred by the movant to establish a genuine issue of material fact. Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). Therefore, the non-moving party may not oppose summary judgment simply on the basis of the pleadings, or on conclusory statements that a factual issue exists. Anderson , 477 U.S. at 248, 106 S.Ct. 2505. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by citing to particular parts of materials in the record ... or showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, "[t]he court need consider only the cited materials, but it may consider other materials in the record." Fed. R. Civ. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc. , 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed.2d 659 (1993).

However, "facts must be viewed in the light most favorable to the nonmoving party only if there is a 'genuine' dispute as to those facts." Scott v. Harris , 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). If a party has carried its burden under the summary judgment rule,

its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted).

IV. ANALYSIS

Defendants seek summary judgment on all of Plaintiff's remaining claims against them. As previously discussed, although they submitted separate Motions, their arguments and characterization of the facts are mostly the same. The Court will address each of Plaintiff's remaining claims in turn and will note the few instances where there are distinctions between Defendants' relative positions.

A. TORTIOUS INTERFERENCE WITH EXISTING CONTRACTUAL RELATIONS (COUNT I - DEFENDANTS FINLEY AND ALBANESE)

In their Motions, Defendants Finley and Albanese first maintain that they are entitled to summary judgment on Plaintiff's first claim, tortious interference with existing contractual relations. Pennsylvania has adopted the Restatement (Second) of Torts standard for this tort. Adler, Barish, Daniels, Levin and Creskoff v. Epstein , 482 Pa. 416, 393 A.2d 1175, 1181-84 (1978) ; Restatement (Second) of Torts § 766. To succeed on a claim for tortious interference, Plaintiff must prove (1) the existence of a contractual relationship between Plaintiff and a third party; (2) purposeful action on the part of Defendants, specifically intended to harm the existing relationship; (3) the absence of privilege or justification on the part of Defendants; and (4) actual legal damages resulting from Defendants' conduct. CGB Occupational Therapy, Inc. v. RHA Health Servs. Inc. , 357 F.3d 375, 384 (3d Cir. 2004). In his Complaint, Plaintiff pleads that Defendants Finley and Albanese, without justification or privilege, interfered with his Consulting Agreement with Med-Dev by closing the Med-Dev Wells Fargo bank account and engaging in other conduct, which led to the loss of $180,000 in consulting fees to which he claims he was entitled. (Doc. 1 ¶¶ 109-114).

Defendants Finley and Albanese take a sweepingly broad approach in raising five arguments in their Motions against this claim: (1) the Consulting Agreement between Finley and Med-Dev was void from the start because it was never formally approved by Med-Dev's Board; (2) there was no culpable conduct on the part of either Defendant Finley or Albanese, either because they were not involved in the decision to discipline Plaintiff or because Plaintiff made the decision to resign from Med-Dev on his own; (3) there is no third-party in Plaintiff's posited scenario, because Med-Dev and Defendants Finley and Albanese, as Directors of Med-Dev, should be treated as the same party; (4) Plaintiff's claim should be treated as arising from a claim for defamation, which has a one year statute of limitations, and should be time-barred as such; and (5) Plaintiff's claim should be barred by the Gist of the Action doctrine because Plaintiff's cause of action is essentially for breach of the Consulting Agreement, and is not a tort. Each argument fails to convince the Court that summary judgment should be granted.

1. VALIDITY OF THE CONSULTING AGREEMENT

Defendants Finley and Albanese challenge the first element of the tort, the existence of a contract, by attacking the validity of the Consulting Agreement. They argue that the undisputed facts establish that the Consulting Agreement is void as an unauthorized "back-room reciprocity deal" between Defendant Finley and Plaintiff, never approved by the Med-Dev Board in violation of the Med-Dev Bylaws. (Docs. 122 at 15-16, 125 at 15-16). Plaintiff responds that the Consulting Agreement was signed by Defendant Finley, the President of Med-Dev, on behalf of Med-Dev, and that under relevant Delaware corporate law, Defendant Finley had the authority to enter Med-Dev into the contract with Plaintiff. (Docs. 129 at 4, 145 at 4). Plaintiff also contends that the Consulting Agreement was ratified through conduct because Med-Dev paid Plaintiff for a year, and both parties were performing their obligations under the Consulting Agreement until Defendant Finley and Albanese's wrongful interference. (Docs. 129 at 4, 145 at 4-5). Plaintiff finally notes that Defendant Finley's position is "completely disingenuous," because he was getting paid under a nearly identical contract from Med-Dev. (Doc. 145 at 4-5).

Relying on the Bylaws, Defendant Finley and Albanese's position is essentially that there was no proper offer and acceptance between Med-Dev and Martin with respect to the Consulting Agreement. However, as Plaintiff points out, they cite to no legal authority in support of their position that the apparent failure of the Med-Dev Board to formally approve the Consulting Agreement, pursuant to the Bylaws, renders it void. Instead, the factual record is replete with material disputes that make it impossible for the Court to conclude, as a matter of law, that the Consulting Agreement was not properly offered or accepted by either Med-Dev or Plaintiff.

For example, Plaintiff contends that "Med-Dev operated informally and there were no Board Resolutions for any of the actions taken by the Board" such as setting up committees, leasing office space, expenditures, and contracts. (Docs. 128 ¶¶ 39-42, 144 ¶¶ 35-37). Indeed, Plaintiff, citing an email from Defendant Albanese, states that the Bylaws themselves were never formally adopted by the Board. (Docs. 128 ¶ 36, 144 ¶ 32). Thus, whether adherence by the parties and Med-Dev itself to the Bylaws was required is in dispute.

Additionally, the factual record is murky with respect to the exact nature of Plaintiff's employment with Med-Dev. The Consulting Agreement itself is contradictory, stating that Plaintiff, as "Consultant," is "an independent contractor and not an employee of [Med-Dev]," (Docs. 109 ¶ 60, 112 ¶ 54), but also that Plaintiff is being retained to act as Chairman of Med-Dev's Board, (Docs. 109 ¶ 46, 112 ¶ 41). The parties also dispute whether Plaintiff was paid under the Consulting Agreement solely as Chairman of Med-Dev, or in another role. (Docs. 109 ¶ 54, 112 ¶ 48, 128 ¶ 54 (Plaintiff asserting that compensation "was for the services he provided for the operation of Med-Dev"), 144 ¶ 48 (same) ). As the Bylaws only require formal authorization for the approval of compensation agreements with corporate directors being compensated in their role as directors, (Docs. 109 ¶ 41, 112 ¶ 36), it is uncertain that the Bylaws, even if adopted and observed, would apply to Plaintiff and the Consulting Agreement.

Finally, although tortious interference with contract requires a "contract," it is not "necessary that the contract be legally enforceable against the third person ... [because] [a] promise may be a valid and subsisting contract even though it is voidable."

Restatement (Second) of Torts § 766 cmt. f. Thus, even if there are defenses that the third-party (in this case, Med-Dev) could raise to enforcement of the Consulting Agreement, such as a lack of mutuality in entering the contract, "until [the third party] does, the contract is a valid and subsisting relation, with which the actor is not permitted to interfere improperly." See id. The parties agree that Plaintiff was paid for months in exchange for his work under the Consulting Agreement and then was not paid starting in January 2014. However, no party asserts that the failure of Med-Dev to pay Plaintiff starting in January 2014 was due to Med-Dev contemporaneously declaring the Consulting Agreement to be void due to fatal errors in its formation. Instead, the factual record contains references to a late April 2014 Special Board meeting that may have included discussion of a retroactive termination of the Consulting Agreement, but the basis for a possible retroactive termination is unclear. (Docs. 109 ¶ 35, 112 ¶ 31, 112-4 at 14 ¶ 70). Nor does Med-Dev itself advance the argument now that the Consulting Agreement is void, because Med-Dev is not a party to this case.

In sum, given the tangled web of factual disputes here, Defendant Finley and Albanese have not established, as a matter of law, that the Consulting Agreement was void. Hence, they are not entitled to summary judgment on this ground.

2. " CULPABLE CONDUCT "

Defendants Finley and Albanese also argue that they did not engage in any "culpable conduct" to interfere with Martin's Consulting Agreement with Med-Dev. (Docs. 122 at 16-17, 125 at 17-18). Defendant Finley argues that "[t]here is no authority to support Martin's claim that the closure of the Wells Fargo account violated any legally cognizable interest of Martin," and that "Finley's legitimate inquiries about Martin's wrongful expenditures, which Martin has admitted of record, do not form a basis for relief against Finley," (Doc. 125 at 17-18). Defendant Albanese contends that he was not involved in the closure of the bank account, or the negotiations for Martin's resignation from the company and termination of the Consulting Agreement. (Doc. 122 at 16-17). Both assert that Martin decided to terminate his own contract by voluntarily deciding to resign as Med-Dev Chairman because of the unauthorized expenses issue. (Docs. 122 at 16-17, 125 at 17-18).

Martin responds that there is a clear dispute of material fact regarding Finley and Albanese's involvement with the decision to close the Wells Fargo bank account, citing emails and testimony from Finley indicating that he discussed closing the account with Albanese and that Finley "did not act unilaterally in any of these capacities in dealing with any of these issues." (Docs. 112-3 at 33:11-13, 128-20 at 3, 129 at 5, 145 at 5). Martin further argues that his resignation from the Med-Dev Board in April 2014 is a "smoke screen" raised by Finley and Albanese to avoid liability for their tortious interference because the Consulting Agreement was effectively terminated four months earlier with the closure of the Wells Fargo bank account. Further, Martin contends that his resignation was later deemed ineffective by the Delaware Chancery Court because a condition subsequent to Martin's resignation was not fulfilled, i.e., the appointment to the Board of Lipes and Rainey. (Docs. 109-1 at 121-22, 145 at 6).

Although they are not identified as such, Finley and Albanese's "culpable conduct" arguments lump together the remaining elements of tortious interference-purposeful action to interfere with a contract, taken without privilege or justification, that results in actual legal damages. CGB Occupational Therapy , 357 F.3d at 384. These arguments fail to convince the Court that the entry of summary judgment is appropriate.

First, the Court will not rule as a matter of law that the closing of the Wells Fargo bank account, from which Martin withdrew his monthly fee under the Consulting Agreement, is not an actionable interference with a contract. Tortious interference with contract does not have "a technical requirement as to the kind of conduct that may result in interference... [i]nterference with the third party's performance may be by prevention of the performance... [such as] by depriving him of the means of performance." Restatement (Second) of Torts § 766 cmt. k. Preventing Med-Dev from paying Martin by closing the Wells Fargo account is, on its face, "depriving [Med-Dev] of the means of performance." Id. Additionally, while Albanese may not have been the individual who personally closed the Wells Fargo bank account, Martin has pointed to material in the factual record that suggests that Albanese was involved in the decision to close the account. (See Docs. 112-3 at 33:11-13, 128-20 at 3, 129 at 5, 145 at 5). Martin has also pointed to portions of the factual record to support his claim that Finley and Albanese had the aim of pushing him out of Med-Dev, and the Court also takes notice of portions of the record that identify a factual dispute between the parties on this issue. (See Docs. 109-2 at 40, 128-13 ¶¶ 10-13, 128-16 ¶¶ 6, 14-16, 128-34 at 2, 129 at 7, 144-34 at 23:24 to 24:2, 145 at 7-8). This is sufficient to preclude summary judgment on the grounds that Finley and Albanese did not intend to interfere with the Consulting Agreement. Restatement (Second) of Torts § 766 cmt. j (describing that an actor is liable if actions to interfere with contract are taken with the "primary purpose of interfering with the performance of the contract," if the actor "desires to interfere, or if the actor "knows that interference is certain or substantially certain to occur" even if it is not the primary purpose of the action).

Further, while a court can rule as a matter of law that an actor is privileged to take an action that would otherwise be unlawful interference with a contract, see Dempsey v. Bucknell Univ. , 76 F.Supp.3d 565, 587 (M.D. Pa. 2015), Finley and Albanese only point to the qualified privilege afforded to agents of a principal, as purported corporate officers of Med-Dev. As subsequently discussed, infra Section IV.A.3, Martin raises factual disputes regarding whether Finley and Albanese were acting within the scope of their authority when they purportedly took actions to interfere with the Consulting Agreement. Evaluating other potential justifications for interference with a contract, such as Finley's brief reference to his "legitimate inquiries about Martin's wrongful expenditures," (Doc. 125 at 18), are better resolved by a jury and are thus inappropriate for judicial resolution on summary judgment. Restatement (Second) of Torts § 767 cmt. I. ("[W]hen there is room for different views, the determination of whether the interference was improper or not is ordinarily left to the jury, to obtain its common feel for the state of community mores and for the manner in which they would operate upon the facts in question.").

Finally, the parties agree that Martin ceased being paid under the Consulting Agreement in January 2014. While they may dispute the importance of Martin's later proffered resignation in April 2014, the failure of Martin to be paid under the Consulting Agreement starting in January 2014 constitutes "actual legal damages" as required by the tort. See Restatement (Second) of Torts § 774A(1)(a) (liability for damages for "the pecuniary loss of the benefits of the contract").

Accordingly, the Court will deny the entry of summary judgment on these grounds asserted by Finley and Albanese.

3. EXISTENCE OF A THIRD-PARTY

Finley and Albanese next raise a legal defense against Martin's tortious interference claim by arguing that they are not "third parties" that could have interfered with the Consulting Agreement. Instead, they contend that as corporate officers of Med-Dev, they should be considered the same as Med-Dev. (Docs. 122 at 17-18, 125 at 18-19). They further assert that there is "no evidence that [either] acted outside the course and scope of his role as a director of Med-Dev." (Docs. 122 at 18, 125 at 19).

With respect to Albanese, Martin responds that there is a dispute of fact regarding whether "Albanese was a member of the Med-Dev Board of Directors at all times between January 16, 2014 and April 19, 2014." (Doc. 128-3 at 2, 128-4 at 3, 128-16 ¶ 11, 129 at 5-6). With respect to both Finley and ALbanese, Martin further argues that there is a dispute of fact regarding whether each was acting within the scope of his authority as a director of Med-Dev when both took actions to allegedly interfere with Martin's Consulting Agreement. (Docs. 129 at 6-8, 145 at 6-9). Martin points to portions of the factual record to support his assertion that both Finley and Albanese "acted with personal animus" and "contrary to Med-Dev's interest" because they knew or should have known that Martin was paid his consulting fees from the Wells Fargo account to Martin's company, Scotland Yarns, LLC, and that Finley was aware that the payment to Mauro Savo was a mistake and that Martin offered to rectify the situation by offsetting the payment against fees he was owed. (Docs. 109-2 at 40, 112-1 at 43:17-23, 128-13 ¶¶ 10-13, 128-16 ¶¶ 6, 14-16, 128-34 at 2, 129 at 7, 144-34 at 23:24 to 24:2, 145 at 7-8).

Despite reaching different conclusions, the parties correctly encapsulate the legal standard in their argument. "Under Pennsylvania law, a claim for tortious interference will survive only if a defendant is not a party to the contract alleged to have been tortiously interfered with." See, e.g., Daniel Adams Assocs., Inc. v. Rimbach Publ'g., Inc. , 360 Pa.Super. 72, 519 A.2d 997, 1000 (1987). "The actions of a principal's agent are afforded a qualified privilege from liability for tortious interference with the principal's contract." CGB Occupational Therapy , 357 F.3d at 385. "The agent's privilege is qualified... because it applies only when the agent is acting within the scope of its authority." Id. Corporate officers, as agents, are thus typically immune from a tortious interference claim brought by a plaintiff who has a contract with the corporation that was allegedly interfered with by the corporate officer. See, e.g., id. at 385-88 ; Labalokie v. Capital Area Intermediate Unit , 926 F.Supp. 503, 509 (M.D. Pa. 1996). However, in situations when the " 'sole motive in causing the corporation to breach the contract is actual malice toward the plaintiff, or if the officer's conduct is against the corporation's interest,' " the "agent acts outside the scope of his employment." Tisone v. Berardino , Civil Action No. 16-167, 2016 WL 7404556, at *8 (W.D. Pa. Dec. 22, 2016) (quoting Duran v. Cty. of Clinton , No. 4:14-CV-2047, 2015 WL 5675580, at *11 (M.D. Pa. Sept. 25, 2015) ).

While it is a close call, the Court finds that the highly contested factual record leads it to conclude that Finley and Albanese have not established, as a matter of law, that they were acting within the scope of their employment. In other cases from the Third Circuit and the Court's sister districts where courts have found that agents were acting in the scope of their employment, the factual record has been much more definitive than the instant case. For example, in CGB Occupational Therapy , 357 F.3d 375 (3d Cir. 2004), there was an uncontested agreement between the defendant-appellant, a managing agent for two Pennsylvania nursing home facilities, and the third party corporation which owned the facilities that gave the managing agent the express authority to terminate contracts in the third party corporation's name. Id. at 386. Thus, the Third Circuit found that the managing agent was acting within the scope of its authority when it terminated its contract with the plaintiff-appellee, a provider of therapy services to the nursing home facilities. Id. Similarly, in Wagner v. Tuscarora School District , No. Civ. A. 1:04-CV-1133, 2006 WL 167731 (M.D. Pa. Jan. 20, 2006), in granting summary judgment to defendants in a tortious interference case, the court found that the record did not contain any evidence suggesting malice on the part of the defendants, employees or agents of a school district, against the plaintiff, a teacher in the school district. Id. at *13.

As noted above, Martin has pointed to evidence in the record that at least raises a dispute as to the motivations of Finley and Albanese in closing the Wells Fargo bank account and taking other actions that allegedly led to the termination of the Consulting Agreement. (Docs. 109-2 at 40, 112-1 at 43:17-23, 128-13 ¶¶ 10-13, 128-16 ¶¶ 6, 14-16, 128-34 at 2, 129 at 7, 144-34 at 23:24 to 24:2, 145 at 7-8). The disputed inner-workings of a small, private corporation like Med-Dev creates a factual morass on this issue that must be resolved by a jury rather than by this Court.

However, the Court also finds that the contested factual ground will not be unlimited at trial. The Court rejects Martin's argument that there is a dispute of fact with respect to whether Albanese was a member of the Board starting in January 2014, as this was an issue previously decided in the Delaware Chancery Court matter. (Doc. 109-1 at 125, 127-28). In that matter, Martin also argued that "at some point after his January 16 appointment, Albanese resigned from the Board." (Id. at 125). Martin raised this issue as part of his case-in-chief to invalidate Albanese's position on the Med-Dev Board in order to establish his own entitlement to the Chairman position. (Id. at 109, 125). The Delaware Chancery Court found that "the evidence does not support [Martin's] conclusion," and that "Albanese validly was appointed to the Board on January 16, 2014 and did not resign afterwards." (Id. at 125).

Under the principles of issue preclusion, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case." Allen v. McCurry , 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980) (citing Montana v. U.S. , 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979) ). "To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions." Montana , 440 U.S. at 153-54, 99 S.Ct. 970. The Court will apply Delaware preclusion law regarding this issue, as it was the state in which the previous judgment was entered. Turner v. Crawford Square Apartments III , L.P ., 449 F.3d 542, 548 (3d Cir. 2006) (citing Lance v. Dennis , 546 U.S. 459, 466, 126 S.Ct. 1198, 163 L.Ed.2d 1059 (2006) ("Congress has directed federal courts to look principally to state law in deciding what effect to give state-court judgments.") ); see also Ciarrocchi v. Kennedy Mem'l Hosp. , 378 F. App'x 239, 241 (3d Cir. 2010) (court may raise issue preclusion sua sponte ) (citing Arizona v. California , 530 U.S. 392, 412-13, 120 S.Ct. 2304, 147 L.Ed.2d 374 (2000) ).

Delaware courts utilize the widely-adopted four factor test to determine if issue preclusion, also known as collateral estoppel, applies to bar relitigation of an issue: "(1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party or in privity with a party to the prior adjudication, and (4) the party against whom the doctrine is raised had a full and fair opportunity to litigate the issue in the prior action." Betts v. Townsends , Inc. , 765 A.2d 531, 535 (Del. 2000) (quoting State v. Machin , 642 A.2d 1235, 1239 (Del. Super. Ct. 1993) ). All of the factors are present with respect to the issue of Albanese's purported resignation: (1) it was an issue raised in the previous action; (2) the Delaware Chancery Court produced a final judgment on the merits; (3) the doctrine is being invoked against Martin, who was a party to the prior adjudication; and (4) Martin had a full and fair opportunity to litigate the issue in the prior action, as he raised the issue with the Chancery Court and engaged in discovery regarding the issue as part of his case-in-chief. (Doc. 109-1 at 109, 125 (noting full trial and oral argument conducted in Delaware Chancery Court) ); see Restatement (Second) of Judgments § 29 cmt. d (difference in discovery procedures and "plenary as distinct from summary hearing" may prevent issue preclusion in second action); Messick v. Star Enter. , 655 A.2d 1209, 1213 (Del. 1995) (citing the Restatement with favorability). Thus, Martin will be precluded from contesting this issue at trial.

4. STATUTE OF LIMITATIONS DEFENSE

Finley and Albanese next argue that Martin's tortious interference claim should be time-barred because "the gravamen of Martin's contractual interference claim is defamation. Thus, the defamation statute of limitations applies." (Docs. 122 at 20-21, 125 at 21); see Evans v. Phila. Newspapers, Inc. , 411 Pa.Super. 244, 601 A.2d 330, 333-34 (1991). They direct the Court to disregard Martin's use of the term "interference" in his Complaint and instead focus on paragraphs 41-46 of the Complaint, where, they state, "he claims Defendants made false allegations against him causing him to voluntarily resign from the company." (Docs. 122 at 20, 125 at 21) (emphasis in Finley and Albanese's brief). Because the statute of limitations for defamation in Pennsylvania is one year, 42 Pa. Stat. and Cons. Stat. Ann. § 5523(1), and because "Martin waited over 17 months after his resignation from Med-Dev in April 2014 before filing his lawsuit on August 20, 2015," Finley and Albanese contend that Martin's claim is time-barred. (Docs. 122 at 20-21, 125 at 21).

Martin responds that the cases cited by Finley and Albanese in support of their statute of limitations argument, including Evans , are inapposite because they all involved factual allegations that made clear that the tortious interference claims were solely based on defamatory conduct. (Docs. 129 at 8-9, 145 at 9-10). Martin states that his tortious interference claim is based on "substantially different conduct [than his defamation claim], conduct that is irrelevant to the defamation claim and that started prior to the defamation and ended after the defamation." (Docs. 129 at 9, 145 at 10). Martin alludes to specific conduct:

It includes Finley's mission to expel Martin from the Company to hide his own incompetence, Finley's recruitment of Albanese, Moore, and Minora, to assist him in that pursuit, the Defendants' actions in closing the Med-Dev bank account at Wells Fargo Bank-thereby ceasing all consulting payments owed to Martin under the Agreement and effectively terminating his consulting contract, and Defendants refusal to turn over operating and financial records to the company after Martin's return to the Board in 2016.

(Docs. 129 at 9, 145 at 10).

The Court agrees with Martin that his tortious interference and defamation claims are distinct, and, thus, his tortious interference claim is not time-barred. Federal courts in this Circuit applying Pennsylvania law have indeed found that when a plaintiff's tortious interference claim "exist[s] solely because of ... defamatory statements [and] [i]f the trial court finds that there is no independent basis for the tortious interference claim[ ], absent defamatory statements, the court must apply the one year statute of limitations to both claims for relief." Rolite, Inc. v. Wheelabrator Envtl. Sys., Inc. , 958 F.Supp. 992, 1010 (E.D. Pa. 1997) (quoting Hurst v. Beck , Civ. A. No. 91-2492, 1992 WL 396592, at *4 (E.D. Pa. Dec. 17, 1992) (examining Evans ) ); McClenaghan v. Turi , 567 F. App'x. 150, 156 (3d Cir. 2014). As Martin states, the cases cited by Finley and Albanese in their Motions all involved such a situation where the tortious interference or analogous claim had no independent basis absent defamatory statements.

For example, Evans , 411 Pa.Super. 244, 601 A.2d 330 (1991), involved a defendant newspaper publishing an article that contained allegedly defamatory statements that were later orally repeated by the defendant reporter that resulted, according to the plaintiff, in the loss of funding to the organization headed by the plaintiff. Id. at 331-32, 334. The Pennsylvania Superior Court held that "the underlying wrong which the complaint alleges is the defamation by publication of a libelous report, and the claim of injury set out in each count springs from the act of publication." Id. at 333. Auld v. Mobay Chemical Co. , 300 F.Supp. 138 (W.D. Pa. 1969), involved a defendant corporation and its officers making allegedly defamatory statements about the plaintiff, a former employee of the corporation, to the IRS and a prospective employer that the plaintiff alleged constituted a conspiracy to defame the plaintiff and conspiracy to injure him in his business or profession. Id. at 140. The court applied the one year statute of limitations to the conspiracy claims because the cause of action for all claims was for injury or damage to the reputation of the plaintiff. Id. at 141. And Pittsman v. Perrone , No. 11 CV 1235, 2013 WL 1465621, 29 Pa. D. & C. 5th 15 (Pa. Ct. Com. Pl. Apr. 11, 2013), solely involved an alleged defamatory communication sent by a defendant doctor to the plaintiff's potential employer, which the plaintiff alleged constituted defamation and tortious interference. Id. at *6.

In contrast to those cases, here, Martin's tortious interference claim is only tangentially linked to his defamation claim in the sense that he alleges that Finley and Albanese used false allegations of unauthorized expenses as an improper excuse to shut down the Wells Fargo bank account and take actions to force him out of Med-Dev when they had other improper motives. However, his tortious interference claim does not rely upon the allegedly defamatory August 2014 Newsletter and January 2015 Manifesto which are the subjects of his defamation claim. As a result, the Court will apply the two year statute of limitation for tortious interference and deny Finley and Albanese summary judgment on their time-bar argument. See 42 Pa. Stat. and Cons. Stat. Ann. § 5524(3); CGB Occupational Therapy , 357 F.3d at 383.

5. GIST OF THE ACTION DEFENSE

In their final argument against Martin's tortious interference claim, Finley and Albanese raise a "gist of the action" defense and assert that Martin's claim is actually for breach of contract of the Consulting Agreement and is not a tort claim. (Docs. 122 at 21-23, 125 at 21-23). They contend that:

Martin's claim is a disguised breach of contract action due to Med-Dev's failure to pay him any consulting fees since January 2014 ... [and] is also an attempt to pierce the corporate veil and impose liability against a select group of directors (3 out of 6), who served in 2014.

(Docs. 122 at 22, 125 at 22-23). They note that the Delaware Chancery Court found that the reason that Martin agreed to resign from Med-Dev in April 2014 was due to misrepresentations by Med-Dev's counsel, Attorney Tomasek, and that Martin should have sued Med-Dev for breach of the Consulting Agreement instead of them for tortious interference. (Docs. 122 at 22, 125 at 23).

In response, Martin argues that he "did not allege a breach of contract claim against any of the Defendants in this action simply because he did not have a contract with any of the Defendants." (Docs. 129 at 10, 145 at 11). Martin further states that he did not sue other members of the Med-Dev Board because he did not believe that they "participated in, or had knowledge of, the personal attack the Defendants were plotting and executing against him." (Docs. 129 at 10, 145 at 11). Finally, Martin posits that applying the gist of the action doctrine to his tortious interference claim should result in a finding that the claim is "a stand-alone claim that does not arise solely from the contract": "[w]hile Med-Dev had contractual obligations to pay Martin his monthly consulting fees under the Agreement, the substance of Martin's tortious interference claims are not that Med-Dev failed to meet these obligations, but rather that the Defendants, intending to harm Plaintiff, interfered with the Agreement, without justification or privilege, and caused Martin to suffer damages." (Docs. 129 at 11, 145 at 12).

"Pennsylvania courts apply the gist of the action doctrine 'to ensure that a party does not bring a tort claim for what is, in actuality, a claim for a breach of contract.' " Bull Int'l, Inc. v. MTD Consumer Grp., Inc. , 654 F. App'x 80, 101 (3d Cir. 2016) (quoting Bruno v. Erie Ins. Co. , 630 Pa. 79, 106 A.3d 48, 60 (2014) ). In Bruno v. Erie Insurance Co. , 630 Pa. 79, 106 A.3d 48 (2014), the Pennsylvania Supreme Court attempted to clarify what distinguishes a tort claim from a breach of contract claim:

The general governing principle which can be derived from our prior cases is that our Court has consistently regarded the nature of the duty alleged to have been breached, as established by the underlying averments supporting the claim in a plaintiff's complaint, to be the critical determinative factor in determining whether the claim is truly one in tort, or for breach of contract. In this regard, the substance of the allegations comprising a claim in a plaintiff's complaint are of paramount importance, and, thus, the mere labeling by the plaintiff of a claim as being in tort, e.g., for negligence, is not controlling. If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract-i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract-then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant's violation of a broader social duty owed to all individuals, which is imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort. Although this duty-based demarcation was first recognized by our Court over a century and a half ago, it remains sound, as evidenced by the fact that it is currently employed by the high Courts of the majority of our sister jurisdictions to differentiate between tort and contract actions. We, therefore, reaffirm its applicability as the touchstone standard for ascertaining the true gist or gravamen of a claim pled by a plaintiff in a civil complaint.

Id. at 68-69 (internal citations omitted). In Bruno , the court evaluated a negligence claim brought by the plaintiff homeowners against their homeowners' insurance company and retained engineer for statements they made advising the plaintiffs that a mold issue in their home was not serious, which was relied upon by the plaintiffs to their detriment, leading to health problems and the home being rendered uninhabitable. Id. at 52-53. The court ruled that although there was an insurance policy between the plaintiffs and the company that required the company to pay up to $5,000 to the plaintiffs for investigating the presence of mold and pay for property damage caused by mold, the policy was not at issue, because the insurance company did pay the $5,000 to the plaintiffs. Id. at 70. Instead, the plaintiffs' allegations concerned the negligent actions taken while the insurance company was performing its contractual obligation to perform the investigation, and so, "the [insurance] policy in this instan