Specific-Intent Requirement Bars Tort Claim for Refusal to Provide Affidavit of Merit

Introduction

Harold R. Berk, a retired attorney, appealed the dismissal of his suit against the Rothman Institute Orthopedic Foundation and affiliated entities (collectively, “Rothman Entities”). Berk had sought from these treating physicians an “affidavit of merit” to support a separate Delaware medical-malpractice action. When his malpractice suit was dismissed for lack of that affidavit, Berk sued the Rothman Entities for, among other things, intentional deprivation of legal recourse—claiming they intentionally interfered with his ability to obtain the affidavit and pursue his malpractice claim. The District Court dismissed Berk’s amended complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim and denied reconsideration. The Third Circuit affirmed.

Summary of the Judgment

The Third Circuit held that under Pennsylvania law a plaintiff bringing an intentional‐interference claim must plead (1) an existing or prospective contractual relationship, (2) purposeful action by the defendant to harm or prevent that relationship, (3) lack of privilege or justification, and (4) actual legal damage. Berk’s complaint alleged only that the Rothman Entities enforced a general policy forbidding doctors from issuing affidavits of merit to patients. He did not allege that they acted with the specific intent to thwart his contract with Dr. Raikin. That failure was fatal. The Court found no error in dismissing with prejudice and denying reconsideration, as further amendment would be futile.

Analysis

Precedents Cited

Delaware Affidavit Requirement (Del. Code Ann. tit. 18, § 6853(a)): Plaintiffs in Delaware medical-malpractice suits must file an affidavit of merit with their complaint.
Berk v. Choy, 2023 WL 2770573 (D. Del. Apr. 4, 2023), aff’d, 2024 WL 3534482 (3d Cir. July 25, 2024), cert. granted, 2025 WL 746311 (U.S. Mar. 10, 2025): Dismissal of Berk’s malpractice complaint for lack of affidavit.
Pelagatti v. Cohen, 536 A.2d 1337 (Pa. Super. Ct. 1987): Four-element test for intentional interference with existing/prospective contract under Pennsylvania law.
Salsberg v. Mann, 310 A.3d 104 (Pa. 2024): Recent Pennsylvania Supreme Court restatement of tort elements for interference with contract.
Ira G. Steffy & Son, Inc. v. Citizens Bank of Pa., 7 A.3d 278 (Pa. Super. Ct. 2010): Mere awareness of interference is insufficient without specific intent.
Glenn v. Point Park Coll., 272 A.2d 895 (Pa. 1971): A defendant must act “in part at least for the purpose” of interfering with a particular contract.
Fleisher v. Standard Ins. Co., 679 F.3d 116 (3d Cir. 2012): Standard for evaluating Rule 12(b)(6) motions.
Huffman v. Lindgren, 81 F.4th 1016 (9th Cir. 2023): Pro se attorneys do not receive expanded pleading leniency.

Legal Reasoning

The Third Circuit’s opinion emphasizes that a claim for intentional interference with a contract (or prospective contract) under Pennsylvania law requires the plaintiff to plead—and ultimately prove—that the defendant acted with the specific purpose of harming that relationship. Berk’s allegations boiled down to this sequence:

Berk asked Dr. Raikin (and later Drs. Pedowitz and Vaccaro) for an affidavit of merit endorsing his medical-malpractice claim; they refused based on an internal policy.
The refusal led the Delaware court to dismiss Berk’s malpractice suit for missing the affidavit.
Berk sued the Rothman Entities for intentional deprivation of legal recourse, advancing an interference-with-contract theory against Dr. Raikin.

Although Berk plausibly alleged a prospective contractual relation (his arrangement with Dr. Raikin to supply the affidavit), he failed to plead that the Rothman Entities refused the affidavit because they intended to interfere with that contract. Instead, they simply enforced a generalized policy. Under Ira G. Steffy and Glenn, such a policy decision—absent allegations that the policy was adopted or enforced to kill Berk’s claim—cannot satisfy the “purposeful action” element.

The district court’s 12(b)(6) dismissal with prejudice was therefore correct, and its refusal to grant further leave to amend was not an abuse of discretion because Berk had already been warned of these pleading deficiencies and amendment would have been futile. The denial of reconsideration likewise presented no error, as Berk offered no new evidence, no change in law, and identified no clear legal mistake or manifest injustice.

Impact

This decision clarifies two important points for future litigants:

Strict Intent Requirement: Tort claims for intentional interference must allege more than mere awareness or foreseeability of harm to a contract; they require allegations that the defendant acted at least in part to bring about the specific interference.
Internal Policy vs. Tort Liability: A nonprofit medical foundation’s enforcement of a uniform policy—here, a flat prohibition on issuing affidavits of merit to patient-clients—does not automatically expose it to liability for tortious interference, absent evidence of an ulterior motive directed at a particular prospective contract.

Practitioners should note that challenges to affidavit-of-merit requirements remain governed by jurisdictional statutes and that interference claims in Pennsylvania remain a narrow avenue of relief.

Complex Concepts Simplified

Affidavit of Merit: A sworn statement by a qualified expert confirming that a plaintiff’s medical-malpractice claims have merit. In Delaware, such an affidavit must accompany the initial complaint or the suit is dismissed.
Intentional Interference with Contract: A tort in which a defendant deliberately disrupts a plaintiff’s contract or prospective contract by wrongful acts. Pennsylvania law requires (1) a contractual relation, (2) purposeful interference, (3) no privilege or justification, and (4) resulting damage.
Rule 12(b)(6) Motion to Dismiss: A defense mechanism allowing a court to dismiss a complaint if it fails to state a claim upon which relief can be granted. The court accepts well-pleaded facts as true but requires more than labels and conclusions.

Conclusion

The Third Circuit’s decision in Harold R. Berk v. Rothman Institute Orthopedic Foundation underscores the necessity of pleading specific intent when alleging tortious interference with a contract under Pennsylvania law. By affirming the Rule 12(b)(6) dismissal and denial of reconsideration, the Court reinforces the principle that generalized policies—even if they produce collateral harm—do not give rise to interference liability absent a targeted motive. This ruling will guide both plaintiffs seeking to challenge internal medical-practice policies and defendants drafting or enforcing such policies to shield themselves against similar claims.