M. Mazur v. J. Cuthbert , 186 A.3d 490 ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Margaret Mazur, :
Appellant :
: No. 1008 C.D. 2017
v. :
: Submitted: December 15, 2017
Jamie Cuthbert :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
JUDGE McCULLOUGH FILED: April 16, 2018
Margaret Mazur (Mazur) appeals, pro se, from the April 7, 2017 order of
the Court of Common Pleas of Allegheny County (trial court) sustaining the
preliminary objections filed by Jamie Cuthbert (Cuthbert) and dismissing Mazur’s
amended complaint with prejudice. Mazur alleged in her amended complaint that
Cuthbert unlawfully caused her injuries and damages due to publication of harmful
defamatory statements that Cuthbert knew to be false.
Facts and Procedural History
Mazur and Cuthbert are both employed by the Commonwealth’s
Department of Military and Veterans Affairs (Department). (Trial court op. at 1.) Both
Mazur and Cuthbert worked at the Department’s Southwestern Veterans Center
(Center). (Complaint at 1-2.)1 Mazur had been employed for four years as an
accounting assistant and Cuthbert was employed as a human resources analyst 2. Id.
On May 16, 2016, Mazur went to the bank and withdrew $4,700.00 in cash for use by
the Center’s residents. (Amended Complaint, Attachment 1.B.)2 Mazur had performed
this duty on past occasions, as it was part of her normal work duties. After placing the
cash in a bank bag, Mazur drove back to the Center without making any stops. Id. She
placed the bag on the desk chair of her co-worker, accounting assistant Sharon Warden
(Warden). Id. When Warden returned to her desk, she and Mazur counted the money
in the bank bag and discovered that the bag only contained $4,200.00; after an
exhaustive search, neither Warden nor Mazur could locate the missing $500.00. Id.
The Center initiated an investigation, which included a pre-disciplinary
conference with Mazur on May 26, 2016, to determine if the missing money had been
stolen or lost because of any carelessness, neglect, or indifference on Mazur’s part.
(Statement of Facts, Attachment 2.)3 Kim Kreiser (Kreiser), the Center’s Chief of
Employee Relations, was present at this conference. Mazur admitted at this conference
that she left the bank bag unattended on Warden’s chair but insisted that the door to the
accounting office was closed at all times. She indicated her belief that the money had
been stolen by either the bank manager or Warden. Nevertheless, the issue remained
unresolved after the conference and Mazur was suspended without pay pending the
outcome of a more thorough investigation. (Amended Complaint, Attachment 1.D.)
1
The term “Complaint” above refers to a complaint filed by Mazur against Cuthbert with the
trial court alleging that Cuthbert made harmful defamatory statements regarding her character that
she knew to be false. The complaint is included in the original record.
2
The amended complaint with multiple attachments is also included in the original record.
3
The term “Statement of Facts” refers to a statement of facts and issues filed by Mazur with
the trial court and included in the original record.
2
The Center never recovered the missing funds, nor did it determine who took the funds
or how the funds were taken. (Amended Complaint, Attachment 1.B.)
Mazur filed a grievance with respect to her unpaid suspension, and
pursuant to a settlement agreement (Agreement) reached between Jennifer McClain-
Miller (McClain-Miller), a Labor Relations Analyst for the Center, and Mazur’s
bargaining representative, the American Federation of State, County & Municipal
Employees, Local 2207, Mazur received a time-served, eight-day suspension from May
27, 2016, through June 7, 2016, with a final warning that any further
infractions/offenses would result in her termination. (Amended Complaint,
Attachments 1.I and 1.K.) Mazur returned to work on June 13, 2016, at which time
Cuthbert presented her with a written copy of the Agreement and asked her to sign a
form acknowledging her receipt of the same. (Amended Complaint, Attachment 1.C.)
However, Mazur refused to sign the acknowledgement because of the final warning
language. Id. Cuthbert then called McClain-Miller and informed her of Mazur’s
refusal to sign, at which time McClain-Miller advised Mazur that the final warning was
part of the Agreement. Id.
Unemployment Compensation Claim
In the meantime, Mazur had filed a claim for unemployment
compensation benefits in an attempt to recover the income she had lost because of her
unpaid suspension. (Amended Complaint, Attachment 1.E.) Mazur’s claim was
denied by notice of determination mailed June 17, 2016, id., but it erroneously stated
that Mazur had last worked for the Center on May 25, 2016, and had been discharged
3
for dishonesty related to theft of money from her department.4 Id. Mazur’s original
complaint against Cuthbert alleging defamation attributed these same erroneous
statements to Cuthbert. See Complaint at 3.
Original Complaint
More specifically, in this original complaint, which was incorporated into
Mazur’s amended complaint in its entirety, Mazur alleged that Cuthbert made
knowingly false and defamatory statements regarding her purported theft and
dishonesty to her superiors, including Kreiser and McClain-Miller, and to an
unemployment compensation representative. Mazur noted that Cuthbert was aware of
both a police and internal investigation, neither of which made such findings. In so
doing, Mazur alleged that Cuthbert was acting outside the scope of her duties as a
human resources analyst for the Center. (Complaint at 3-4.)
Mazur’s original complaint placed heavy emphasis on the findings set
forth by the unemployment compensation representative in the notice of determination
denying her claim. Mazur alleged that the erroneous findings of fact contained therein
were based upon statements relayed by Cuthbert to the unemployment compensation
representative. Mazur described these statements as libelous on their face and stated
that the same resulted in a loss of income, a loss of her reputation, shame, mortification,
and hurt feelings. Additionally, Mazur alleged that these false statements resulted in
an unjust final warning letter which placed her job and future employment in jeopardy.
Mazur further alleged that the statements were not privileged because they were
4
Mazur appealed and the matter was assigned to a referee. The referee conducted a hearing
on July 27, 2016, at which no representative from the Center appeared, and the referee ultimately
reversed the notice of determination and awarded Mazur benefits. (Amended Complaint, Attachment
1.M.)
4
published by Cuthbert with malice and ill will toward her, with an intent to injure, but
without any proof to substantiate the same. Mazur sought compensatory and punitive
damages, as well as interest and the costs of filing this suit. (Complaint at 4-8.)
Preliminary Objections and Amended Complaint
Cuthbert filed preliminary objections in the nature of a demurrer and to
dismiss Mazur’s suit on the basis that Cuthbert, as an employee of the Commonwealth
acting within her official duties, was immune from suit under 1 Pa.C.S. §2310.5
Cuthbert noted that no waiver of immunity is applicable to her in this instance. 6
Cuthbert also filed a demurrer and sought to dismiss Mazur’s suit on the basis that she
enjoyed an absolute privilege for the statements allegedly made. More specifically,
Cuthbert noted that a witness who presents testimony or other information in the course
of a proceeding is entitled to an absolute privilege and that such privilege has been
extended to cover pertinent and material statements made during the regular course of
state agency proceedings, citing Milliner v. Enck, 709 A.2d 417, 420-21 (Pa. Super.
5
This section provides, in pertinent part, as follows:
Pursuant to section 11 of Article I of the Constitution of Pennsylvania,
it is hereby declared to be the intent of the General Assembly that the
Commonwealth, and its officials and employees acting within the
scope of their duties, shall continue to enjoy sovereign immunity and
official immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.
1 Pa.C.S. §2310.
6
The General Assembly has set forth exceptions to sovereign immunity in section 8522 of
what is commonly referred to as the Sovereign Immunity Act, 42 Pa.C.S. §8522. Section 8522(b),
42 Pa.C.S. §8522(b), identifies nine specific exceptions, none of which are applicable herein, relating
to vehicle liability, medical-professional liability, personal property, real estate, potholes, animals,
liquor store sales, National Guard activities, and toxoids and vaccines.
5
1998) (holding that statements made to unemployment compensation representative
were absolutely privileged from liability for defamation). (Preliminary Objections,
February 15, 2017.)
By order dated March 3, 2017, the trial court sustained Cuthbert’s
preliminary objections and dismissed Mazur’s complaint, without prejudice to file an
amended complaint within 30 days properly alleging facts supporting her contention
that the defamatory statements were made outside the scope of Cuthbert’s employment.
On March 9, 2017, Mazur filed an amended complaint with numerous
attachments, including, inter alia, copies of a police report indicating no arrests were
made, a statement from McClain-Miller, her suspension letter, the notice of
determination regarding her claim for unemployment compensation benefits, a
statement from Mazur’s representative at the unemployment compensation referee’s
hearing, the Center’s Funds Management Policy, and Cuthbert’s formal job
description. Mazur alleged that these attachments provided “clear and convincing
evidence and proof that [Cuthbert] was acting in her personal capacity with willful and
intentional motives to harm [Mazur] and was not acting within the scope of her
employment or furthering [the Center’s] interests” when she made the statements.
(Amended Complaint at 4.) More specifically, Mazur alleged that Commonwealth
employees had a duty under the Public Official and Employee Ethics Act, 65 Pa.C.S.
§§1101-1113, to “display honesty and integrity in the performance of their duties.”
(Amended Complaint at 7.) Mazur also cited to the values and standards required of
Commonwealth employees under the Governor’s Code of Conduct. Id.
Cuthbert thereafter renewed her preliminary objections in the nature of a
demurrer and sought dismissal of Mazur’s suit on the basis of immunity and absolute
privilege. By order dated April 10, 2017, the trial court sustained Cuthbert’s
6
preliminary objections and dismissed Mazur’s amended complaint with prejudice.
Mazur then filed a notice of appeal with the trial court.
Trial Court Opinion
On May 12, 2017, the trial court issued an opinion in support of its order.
In this opinion, the trial court explained that even accepting the allegations of Mazur’s
amended complaint as true, Mazur fails to set forth a claim against Cuthbert because
Cuthbert is protected by sovereign immunity. Citing Yakowicz v. McDermott, 548
A.2d 1330, 1333 (Pa. Cmwlth. 1988), appeal denied, 565 A.2d 1168 (Pa. 1989), the
trial court noted that Commonwealth parties, which includes an employee like
Cuthbert, are immune to the imposition of liability for actions taken within the scope
of their duties except where the General Assembly has waived such immunity. 7 The
trial court also noted that defamation was an intentional tort,8 but that “Commonwealth
employees do not lose their immunity for intentional torts, provided they are acting
within the scope of their employment.” (Trial court op. at 2) (citing Ioven v. Nestel,
150 A.3d 571, 574 (Pa. Cmwlth. 2016), appeal denied, 169 A.3d 569 (Pa. 2017)).
While Mazur alleged that Cuthbert’s alleged false and defamatory
communications were outside the scope of her employment as a human resources
analyst 2 for the Center, the trial court referenced the duties of such a position, as set
forth in an exhibit attached to Mazur’s amended complaint, which included conducting
and assisting in pre-disciplinary conferences; collecting disciplinary investigation
7
The trial court noted that the common pleas court in Yakowicz held that the act of publishing
a defamatory performance review did not fall under any of the nine exceptions to sovereign immunity
under section 8522 of the Sovereign Immunity Act and, thus, the publisher was immune from the
imposition of liability for defamation.
8
See Wilson v. Marrow, 917 A.2d 357, 364 (Pa. Cmwlth. 2007).
7
witness statements; recommending discipline to the central office; and, most
importantly, representing the agency at unemployment compensation hearings.
(Amended Complaint, Attachment 1.G.) This latter duty included investigating and
preparing the case by gathering witness statements and termination packages,
testifying, presenting materials and witnesses, and conducting cross-examination of
witnesses. Id. In light of these duties, the trial court concluded that any statements
made by Cuthbert to her superiors or to an unemployment compensation representative
in conjunction with a hearing regarding Mazur’s unemployment compensation claim
“were clearly made within the scope of Cuthbert’s employment with [the Center].”
(Trial court op. at 3.) “As an employee of a Commonwealth agency acting within the
scope of her employment,” the trial court held that Cuthbert was “protected by
sovereign immunity from the imposition of liability for defamation in the present
matter.” Id.
Discussion
On appeal to this Cout,9 Mazur argues that the trial court erred in
sustaining Cuthbert’s preliminary objections because (1) Cuthbert’s claim of immunity
should have been raised as an affirmative defense under the heading of new matter in
an answer to the amended complaint; (2) Cuthbert was not acting within the scope of
her employment duties when she relayed false information to an unemployment
9
Mazur originally appealed to the Superior Court. However, by order filed June 8, 2017, the
Superior Court transferred the matter to this Court.
8
compensation representative; and (3) Cuthbert was not eligible for any immunity as the
false statements were made outside of the context of an unemployment compensation
hearing and were in violation of the Center’s own rules/policies.
Affirmative Defense
Mazur first argues that the trial court erred in sustaining Cuthbert’s
preliminary objections because, under Pa.R.C.P. No. 1030, Cuthbert’s claim of
immunity should have been raised as an affirmative defense under the heading of new
matter in an answer to her amended complaint. In the course of this argument, Mazur
also alleges that the trial court erred in failing to find Cuthbert in default status as she
did not respond to the original complaint within the 20-day timeframe required by
Pa.R.C.P. No. 1026.
Pa.R.C.P. No. 1026(a) provides that “every pleading subsequent to the
complaint shall be filed within twenty days after service of the preceding pleading . . .
.” The record herein indicates that Cuthbert was served with the original complaint on
January 20, 2017. On February 13, 2017, Mazur served Cuthbert with a 10-day notice
of her intent to seek entry of a default judgment under Pa.R.C.P. No. 237.5. Cuthbert
immediately responded on February 15, 2017, with the filing of preliminary objections
to the original complaint. Here, a period of 25 days had passed between the service of
the original complaint and the filing of the preliminary objections. Generally, a party
has 20 days to file a responsive pleading such as preliminary objections. See Pa.R.C.P.
No. 1026 (stating that “every pleading subsequent to the complaint shall be filed within
twenty days after service of the preceding pleading”). As such, the passage of more
than 20 days could have resulted in the entry of a default judgment against Cuthbert.
9
Nevertheless, the trial court did not err in considering Cuthbert’s
preliminary objections since Mazur did not serve her original complaint on the Office
of Attorney General, an absolute prerequisite to the entry of a default judgment against
a Commonwealth party, see Kreidie v. Commonwealth, 156 A.3d 380, 383-84 (Pa.
Cmwlth. 2017), and Mazur did not file an actual praecipe for the entry of a default
judgment; instead, she merely provided Cuthbert with the 10-day notice required under
Pa.R.C.P. No. 237.1(a)(2)(ii).10
10
Pa.R.C.P. No. 237.1, entitled “Notice of Praecipe for Entry of Judgment of Non Pros for
Failure to File Complaint or by Default for Failure to Plead,” states as follows:
(a) (1) As used in this rule,
“judgment of non pros” means a judgment entered by
praecipe pursuant to Rules 1037(a) and 1659;
“judgment by default” means a judgment entered by
praecipe pursuant to Rules 1037(b), 1511(a), 3031(a)
and 3146(a).
(2) No judgment of non pros for failure to file a
complaint or by default for failure to plead shall be
entered by the prothonotary unless the praecipe for
entry includes a certification that a written notice of
intention to file the praecipe was mailed or delivered
(i) in the case of a judgment of non pros,
after the failure to file a complaint and at
least ten days prior to the date of the
filing of the praecipe to the party’s
attorney of record or to the party if
unrepresented, or
(ii) in the case of a judgment by default,
after the failure to plead to a complaint
and at least ten days prior to the date of
the filing of the praecipe to the party
10
Preliminary objections clearly qualify as a “pleading.” See Pa.R.C.P. No.
1017(4).11 Once Cuthbert’s preliminary objections were filed, which occurred before
against whom judgment is to be entered
and to the party’s attorney of record, if
any.
The ten-day notice period in subdivision (a)(2)(i) and
(ii) shall be calculated forward from the date of the
mailing or delivery, in accordance with Rule 106.
(3) A copy of the notice shall be attached to the
praecipe.
(4) The notice and certification required by this rule
may not be waived.
(b) This rule does not apply to a judgment entered
(1) by an order of court,
(2) upon praecipe pursuant to an order of court, or
(3) pursuant to a rule to show cause.
Pa.R.C.P. No. 237.1(a)-(b). Pa.R.C.P. No. 237.5 merely sets forth the form of the notice of a praecipe
to enter a default judgment.
11
Pa.R.C.P. No. 1017(a) states that,
Except as provided by Rule 1041.1, the pleadings in an action are
limited to
(1) a complaint and an answer thereto,
(2) a reply if the answer contains new matter, a
counterclaim or a cross-claim,
(3) a counter-reply if the reply to a counterclaim or
cross-claim contains new matter,
11
the filing of a praecipe to enter a default judgment, she was no longer in default. See
Vision Service Plan v. Pennsylvania AFSCME Health & Welfare Fund, 474 A.2d 339,
341 (Pa. Super. 1984) (“[A]lthough the filing of a responsive pleading may be late, if
it is filed before the filing of a praecipe for judgment, it will nevertheless bar a default
judgment.”).12 Even though Cuthbert’s preliminary objections may have been
untimely, the filing of the same would have precluded the entry of a default judgment
against her. See State Farm Insurance Company v. Barton, 905 A.2d 993, 995 (Pa.
Super. 2006) (“[A] defendant’s filing of preliminary objections would inhibit the
subsequent entry of a valid default judgment.”). Moreover, this Court has previously
noted that the 20-day pleading requirement has not been strictly enforced, that said rule
is not mandatory but permissive, and that common pleas courts are afforded discretion
in accepting late pleadings in the absence of prejudice and where justice so requires.
See Ramins v. Chemical Decontamination Corporation, 560 A.2d 836, 839 (Pa.
Cmwlth. 1989), appeal denied, 577 A.2d 893 (Pa. 1990). Thus, the trial court did not
err in failing to find Cuthbert in default status.
Returning to the issue of whether Cuthbert’s immunity defense should
have been raised in new matter, Pa.R.C.P. No. 1030(a) does provide that immunity
from suit is an affirmative defense that “shall be pleaded in a responsive pleading under
the heading ‘New Matter’.”13 However, “Pennsylvania courts have long recognized a
(4) a preliminary objection and a response thereto.
(Emphasis added).
12
“While recognizing that decisions of our sister Superior Court are not binding upon this
Court, we always give great deference to their persuasive wisdom and logic . . . .” In re Superior-
Pacific Fund, 693 A.2d 248, 253 (Pa. Cmwlth.), appeal denied, 704 A.2d 1384 (Pa. 1997).
13
Pa.R.C.P. No. 1030 provides, in full, as follows:
12
limited exception to this rule and have allowed parties to plead the affirmative defense
of immunity as a preliminary objection where the defense is clearly applicable on the
face of the complaint.” Feldman v. Hoffman, 107 A.3d 821, 829 (Pa. Cmwlth. 2014),
appeal denied, 121 A.3d 497 (Pa. 2015) (citations omitted); see also Minor v. Kraynak,
155 A.3d 114, 121 (Pa. Cmwlth. 2017) (noting the limited exception allowing
immunity to be raised by preliminary objection as discussed in Feldman and
concluding that any claim of procedural error was waived as a result of the plaintiff’s
failure to file preliminary objections to the preliminary objections that asserted such
immunity). Here, Mazur had filed a complaint against a co-employee at the Center,
clearly a Commonwealth employee, and the attachments to the amended complaint
reflect that Cuthbert’s job duties involved handling unemployment compensation
claims on behalf of the Center, which included representing the Center at
unemployment compensation hearings, investigating and preparing the Center’s case
by gathering witness statements and termination packages, testifying, presenting
materials and witnesses, and cross-examining witnesses. Hence, the defense of
(a) Except as provided by subdivision (b), all affirmative defenses
including but not limited to the defenses of accord and satisfaction,
arbitration and award, consent, discharge in bankruptcy, duress,
estoppel, failure of consideration, fair comment, fraud, illegality,
immunity from suit, impossibility of performance, justification,
laches, license, payment, privilege, release, res judicata, statute of
frauds, statute of limitations, truth and waiver shall be pleaded in a
responsive pleading under the heading “New Matter”. A party may set
forth as new matter any other material facts which are not merely
denials of the averments of the preceding pleading.
(b) The affirmative defenses of assumption of the risk, comparative
negligence and contributory negligence need not be pleaded.
(Emphasis added).
13
sovereign immunity was apparent on the face of the amended complaint. Thus, the
exception applies and the trial court did not err in considering the sovereign immunity
defense raised by Cuthbert via preliminary objections.
Scope of Employment Duties
Mazur next argues that the trial court erred in sustaining Cuthbert’s
preliminary objections because Cuthbert was not acting within the scope of her
employment duties when she relayed false information to an unemployment
compensation representative.
Section 8501 of the Sovereign Immunity Act defines the term
“Commonwealth party” broadly to include “[a] Commonwealth agency and any
employee thereof, but only with respect to an act within the scope of his office or
employment.” 42 Pa.C.S. §8501. Hence, a Commonwealth employee may be held
liable for conduct performed within the scope of his/her employment only in the narrow
categories of cases for which the General Assembly has waived sovereign immunity
under section 8522(b) of the Sovereign Immunity Act. As noted above, these
categories relate to vehicle liability, medical-professional liability, personal property,
real estate, potholes, animals, liquor store sales, National Guard activities, and toxoids
and vaccines. Additionally, section 8522(a) of the Sovereign Immunity Act provides
that said waiver of sovereign immunity is only applicable to “damages arising out of a
negligent act where the damages would be recoverable under the common law or a
statute creating a cause of action if the injury were caused by a person not having
available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a).
Mazur alleges that Cuthbert’s actions fall under the personal property
exception in section 8522(b)(3) of the Sovereign Immunity Act, 42 Pa.C.S.
14
§8522(b)(3), based upon Cuthbert’s purported possession and control of her personnel
files. We do not agree. This exception, entitled “Care, custody or control of personal
property,” provides for a waiver of immunity with respect to “[t]he care, custody or
control of personal property in the possession or control of Commonwealth parties,
including Commonwealth-owned personal property and property of persons held by a
Commonwealth agency.” Id. Mazur’s amended complaint is premised on Cuthbert’s
intentional acts, and not any negligent acts, a prerequisite for the exception to apply
under section 8522(a). Moreover, in order for this exception to apply, the personal
property possessed or controlled by the Commonwealth party must directly cause, and
not merely facilitate, the plaintiff’s injuries. Pennsylvania State Police v. Klimek, 839
A.2d 1173, 1175 (Pa. Cmwlth. 2003), appeal denied, 857 A.2d 681 (Pa. 2004) (for
exception to apply, “personal property itself must cause defendant’s injuries, not
merely facilitate it.” (emphasis in original)). Here, Mazur’s personnel file was not the
cause of her alleged injuries; rather, it was the statements made by Cuthbert, statements
which were made in the scope of her employment duties. Thus, the personal property
exception is not applicable herein.
As the trial court aptly noted, defamation is an intentional tort, which does
not fall within the General Assembly’s limited waiver of sovereign immunity. Ioven;
Wilson. In Ioven, Douglas Ioven, a former employee of the Southeastern Pennsylvania
Transportation Authority (SEPTA), filed a complaint against SEPTA and its police
chief, Thomas Nestel, alleging that Nestel had published and distributed an officer
safety bulletin to various law enforcement agencies that contained false statements
about Ioven.14 Ioven alleged that Nestel knew or should have known that these
14
The purported false statements included that Ioven had pointed a loaded firearm at a
pedestrian, did not have a permit to carry a concealed weapon, and impersonated a police officer on
several occasions.
15
statements were false, but admitted that they were made in the course and scope of
Nestel’s employment with SEPTA. Ioven’s complaint included claims against Nestel
for slander, defamation, libel, and intentional infliction of emotional distress,15 as well
as a claim that SEPTA was vicariously liable for Nestel’s actions. The common pleas
court ultimately sustained a motion from Nestel and SEPTA for judgment on the
pleadings and dismissed Ioven’s complaint with prejudice on the basis of sovereign
immunity.
On appeal, this court affirmed. We noted that slander, defamation, and
libel were not listed as exceptions to sovereign immunity under section 8522(b) of the
Sovereign Immunity Act. Additionally, we rejected Ioven’s arguments regarding an
exception to immunity under section 8550 of the Judicial Code, 42 Pa.C.S. §8550, for
acts constituting actual malice of willful misconduct. We noted that such an exception
only applies to the immunity granted to local agency employees, not Commonwealth
employees, and that the latter “do not lose their sovereign immunity protection for
alleged claims of willful misconduct . . . provided they are acting within the scope of
their employment.” Ioven, 150 A.3d at 153-54. Because Ioven admitted in his
complaint that Nestel was acting within the scope of his employment, we held that the
common pleas court properly concluded that Nestel was protected by sovereign
immunity.
Consequently, the only way for Mazur to succeed on her defamation
action against Cuthbert would be to show that Cuthbert’s statements were made outside
the scope of her duties with the Center. This Court has previously explained that an
15
Ioven’s claim of intentional infliction of emotional distress was dismissed following the
filing of preliminary objections on behalf of Nestel and SEPTA.
16
employee’s conduct is within the scope of his/her employment if the conduct “is of a
kind and nature that the employee is employed to perform; it occurs substantially within
the authorized time and space limits; it is actuated, at least in part, by a purpose to serve
the employer.”16 Natt v. Labar, 543 A.2d 223, 225 (Pa. Cmwlth. 1988). Further, “even
debatable acts or acts contrary to policy, if done in furtherance of [the] employer’s
interest, do not exceed the employee’s scope of employment.” Kull v. Guisse, 81 A.3d
148, 158 (Pa. Cmwlth. 2013), appeal denied, 91 A.3d 163 (Pa. 2014).17
16
This standard was adopted from the RESTATEMENT (SECOND) OF AGENCY §228 (1958),
which provides as follows:
(1) Conduct of a servant is within the scope of employment if, but only
if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the authorized time
and space limits;
(c) it is actuated, at least in part, by a purpose to serve
the master, and
(d) if force is intentionally used by the servant against
another, the use of force is not unexpectable by the
master.
(2) Conduct of a servant is not within the scope of employment if it is
different in kind from that authorized, far beyond the authorized time
or space limits, or too little actuated by a purpose to serve the master.
17
In Kull, we affirmed the orders of a common pleas court holding that certain faculty
members of Kutztown University were immune from intentional tort claims brought against them by
a former assistant professor who was denied tenure and a promotion. This denial was premised upon
the recommended denial of tenure by the chair of the department where the former assistant professor
worked and that department’s promotion, evaluation, and tenure committee, which consisted of the
faculty members that were defendants in the suit. The former assistant professor raised claims of
defamation, invasion of privacy/false light, and intentional interference with contractual relations in
17
We explained in Kull that “governmental immunity for local agency
employees does not protect against acts of willful misconduct,”18 but that said
exception “has no partner in the Sovereign Immunity Act.” 81 A.3d at 154 n.5. In
other words, we stated that “Commonwealth employees do not lose their sovereign
immunity protection for alleged claims of willful misconduct.” Id. In reaching our
decision in Kull, we cited the RESTATEMENT (SECOND) OF AGENCY §230 (1958), which
provides that “[a]n act, although forbidden, or done in a forbidden manner, may be
within the scope of employment.” Id. at 158. We also cited a decision from the United
his amended complaint, alleging that the committee members exceeded their scope of employment
by failing to adhere to evaluation and tenure procedures set forth by the governing collective
bargaining agreement. The amended complaint also alleged that the committee members failed to
consider his work outside the department, did not return his peer evaluations in a timely manner, did
not allow him an opportunity to discuss these evaluations before they were recorded, did not have an
expert evaluate him, and included evaluation factors not specifically referenced in the collective
bargaining agreements. The faculty members filed preliminary objections asserting sovereign
immunity. The common pleas court sustained the same and this Court affirmed on appeal. We
concluded that the trial court properly found the committee members acted within the course of their
employment, and, hence, were entitled to immunity, as they were part of a committee whose primary
duty was to evaluate professors for tenure, which included compiling evaluation information and
making recommendations. Further, we noted that even if the assistant professor had alleged that the
committee members acted with personal animosity against him, the result would not change because
their actions were made to advance the university’s interests.
18
See Sections 8542(d) and 8550 of the Judicial Code, 42 Pa.C.S. §§8542(d), 8550 (relating
to the willful misconduct exception to governmental immunity). As our Pennsylvania Supreme
Court explained in Dorsey v. Redman, 96 A.3d 332, 340 (Pa. 2014), the doctrines of governmental
immunity were designed “to protect the fiscal security of the government by shielding the
Commonwealth and its agents, as well as local agencies, from tort liability,” with the former shielding
the Commonwealth and its agents and the latter shielding local governments, local agencies, and
employees thereof.
18
States Court of Appeals for the Third Circuit, Brumfield v. Sanders, 232 F.3d 376 (3d
Cir. 2000), cert. denied, 532 U.S. 958 (2001).19
This Court recently addressed a scope of employment issue in a case
brought against a Pennsylvania State Police trooper for intentional tort claims arising
out of a traffic stop. Justice v. Lombardo, 173 A.3d 1230 (Pa. Cmwlth. 2017). In that
case, Shiretta Justice filed a complaint against Pennsylvania State Police Trooper
Joseph Lombardo alleging that he used excessive force in restraining and handcuffing
her, and asserting various intentional tort claims, including, inter alia, assault and
battery, invasion of privacy, and intentional infliction of emotional distress. Trooper
Lombardo filed preliminary objections, and later a motion for summary judgment,
asserting sovereign immunity, but the same were overruled and denied, respectively.
At the end of trial, a jury returned a verdict in favor of Ms. Justice and awarded her
damages. The common pleas court thereafter denied a motion from Trooper Lombardo
for post-trial relief seeking judgment notwithstanding the verdict, again asserting
sovereign immunity.
On appeal, this Court reversed and remanded the matter to the common
pleas court for the entry of judgment in Trooper Lombardo’s favor. We concluded that
Trooper Lombardo was acting within the scope of his employment at the time he
restrained and handcuffed Ms. Justice. Id., 173 A.3d at 1239. We explained that a
Commonwealth employee enjoys immunity from intentional tort claims, even for
intentional acts which cause emotional distress. Id., 173 A.3d at 1238 (citing Holt v.
Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134, 1140
19
Generally, decisions of federal district courts and courts of appeals are not binding on this
Court, even where a federal question is involved, but they may have persuasive value. GGNSC
Clarion LP v. Kane, 131 A.3d 1062, 1069 (Pa. Cmwlth.), aff’d, 152 A.3d 983 (Pa. 2016).
19
(Pa. Cmwlth. 1997)). We noted the scope of employment standard was adopted from
the RESTATEMENT (SECOND) OF AGENCY §228, above. We also noted that the
RESTATEMENT (SECOND) OF AGENCY §229(1) provides, “To be within the scope of the
employment, conduct must be of the same general nature as that authorized, or
incidental to the conduct authorized.”20 Id., 173 A.3d at 1239. Further, we explained
that,
Under this standard, we do not look to see whether particular
conduct was exercised in a negligent manner or even if that
person intentionally caused the harm, but only to whether the
conduct was authorized by the employer. Remember,
normally this standard is used to determine whether the
employer is liable for the conduct of its employee. If an
employee was not considered acting within the scope of
employment when the employee’s conduct was negligent or
intentionally tortious, an employer would never be liable for
the negligent or intentional torts of its employees. To the
20
Further, we noted that the RESTATEMENT (SECOND) OF AGENCY §229(2) sets forth certain
standards to determine whether unauthorized conduct “is nevertheless within the scope of
employment as sufficiently similar to or incidental to authorized conduct,” including the following:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned
between different servants;
(e) whether or not the act is outside the enterprise of the master or,
if within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act
will be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done
has been furnished by the master to the servant;
(i) the extent of departure from the normal method of
accomplishing an authorized result; and
(j) whether or not the act is seriously criminal.
Justice, 173 A.3d at 1239 n.10.
20
contrary, Section 231 of the Restatement (Second) of
Agency (1958) specifically provides that acts may be within
the scope of employment even if consciously criminal or
tortious.
...
Whether his conduct was reasonable or not, intentional or
not, tortious or not, carried out for an improper motive or not,
are all irrelevant because Trooper Lombardo’s use of force
in placing Ms. Justice’s hands behind her back and
‘wrestling’ with her to apply handcuffs was of the same
general nature as that authorized or incidental to the conduct
authorized, and use of force, in general, by State Troopers is
not unexpected.
Id.
In ruling on preliminary objections, a court must accept as true all well-
pleaded material allegations in a party’s complaint and any reasonable inferences that
could be drawn therefrom. Thomas v. Corbett, 90 A.3d 789, 794 (Pa. Cmwlth. 2014).
However, a court is not required to accept a party’s “legal conclusions, unwarranted
inferences from facts, argumentative allegations, or expressions of opinion.” Id. In the
present case, while Mazur alleged in her amended complaint that Cuthbert acted
outside the scope of her employment when she made the statements to the
unemployment compensation representative, this is a legal conclusion and/or
argumentative allegation that the trial court was not required to accept. Because
Pennsylvania is a “fact pleading” jurisdiction, Mazur was required to articulate the
specific facts underlying her assertion that Cuthbert’s alleged statements were
actionable. See Brimmeier v. Pennsylvania Turnpike Commission, 147 A.3d 954, 967
(Pa. Cmwlth. 2016), aff’d, 161 A.3d 253 (Pa. 2017). Moreover, we have previously
held that “a court is not bound to accept as true any averments in a complaint which
are in conflict with exhibits attached to it.” Baravordeh v. Borough Council, 699 A.2d
789, 792 (Pa. Cmwlth. 1997), appeal denied, 725 A.2d 183 (Pa. 1998).
21
In the present case, Mazur alleged that Cuthbert made defamatory
statements to the unemployment compensation representative, as well as Kreiser and
McClain-Miller, both of whom worked for the Center.21 However, like Cuthbert, both
Kreiser and McClain-Miller were involved in the disciplinary process for the Center.
Cuthbert’s formal job description, which Mazur attached to her amended complaint,
reflects that Cuthbert was required to gather witness statements in connection with pre-
disciplinary conferences and to make recommendations to the central office concerning
the appropriate level of discipline to be applied in each particular case. (Amended
Complaint, Attachment 1.G.) Additionally, this job description also stated that
Cuthbert’s official duties included representation of the Center during the course of
unemployment compensation proceedings. Id. We agree with the trial court that
Cuthbert’s job description could support a conclusion that Cuthbert was acting within
the scope of her employment when she made the alleged defamatory statements.
This Court reached a similar conclusion in Cimino v. DiPaolo, 786 A.2d
309 (Pa. Cmwlth. 2001). In that case, a county constable sued a district justice for
defamation, alleging that the district justice had falsely told law enforcement
authorities that he was improperly overcharging Erie County for his services. Defining
the “adjudicative responsibilities” of the district justice broadly enough to include
“being faithful to the law,” we affirmed a common pleas court’s decision sustaining
preliminary objections filed by the district justice on the ground that the constable’s
defamation claims were barred by the Sovereign Immunity Act. Id. at 311. In the
course of explaining why the district justice had been acting within the scope of his
employment, we emphasized the fact that the district justice had communicated his
21
As noted above, Kreiser was the Center’s Chief of Employee Relations and McClain-Miller
was a Labor Relations Analyst for the Center.
22
suspicions only to law enforcement officials exercising “the authority to investigate
such matters.” Id.
Similarly, here, Cuthbert only made these alleged defamatory statements
to other employees overseeing the internal investigation by the Center and to an
unemployment compensation representative in conjunction with an ongoing
unemployment compensation claim filed by Mazur, in the course of performing her
required work duties. Further, because these work duties included conducting and
assisting in pre-disciplinary conferences, collecting disciplinary investigation witness
statements, recommending discipline to the central office, and representing the agency
at unemployment compensation hearings, Cuthbert’s conduct in making statements to
her superiors and the unemployment compensation representative was specifically
authorized by the Center. Hence, like the Pennsylvania State Police trooper in Justice
v. Lombardo, Cuthbert appears to have been acting within the scope of her employment
duties, which would generally entitle her to immunity against Mazur’s defamation
claim. However, our inquiry does not end here.
Eligibility for Immunity
Finally, Mazur argues that the trial court erred in sustaining Cuthbert’s
preliminary objections because Cuthbert was not eligible for any immunity as the false
statements were made outside of the context of an unemployment compensation
hearing and were in violation of the Center’s own rules/policies.
While Mazur is correct that the statements upon which her defamation
claim is premised were not made within the course of a hearing before an
unemployment compensation referee, the fact remains that Cuthbert made the
23
statements in the course of performing her official work duties in preparation for the
hearing, thereby shielding the same under sovereign immunity.
We now turn to Mazur’s allegation that official policies prohibiting
Commonwealth employees from making false statements necessarily places Cuthbert’s
statements outside the scope of her employment. This case presents a unique question
of whether an employee takes herself out of the scope of her employment by knowingly
making false statements to third parties, which directly conflict with an employer’s
written policy against making false statements. There is no question that Cuthbert, in
her position as a human resources analyst 2 with the Center, participated in the initial
internal investigation regarding the missing $500.00 and was, or at least should have
been, aware of the subsequent police investigation. Moreover, accepting the
allegations of Mazur’s amended complaint as true, which a court must do when ruling
on preliminary objections, the internal investigation failed to reveal what happened to
the missing money and the subsequent police investigation did not result in any
criminal charges against Mazur. Indeed, these allegations are confirmed in the
attachments to Mazur’s amended complaint, namely a police incident report dated May
20, 2016, a November 17, 2016 letter from counsel for the Center to an intake
supervisor at the U.S. Equal Employment Opportunity Commission, and a November
3, 2016 written statement authored by McClain-Miller.
Nevertheless, the findings set forth by the unemployment compensation
representative run directly contrary to the same, stating that Mazur was discharged for
alleged dishonesty involving theft of money from her department.22 If Mazur can
establish that Cuthbert made knowingly false statements to her superiors and/or the
unemployment compensation representative, a fact which is not entirely clear by
22
Mazur attached to her amended complaint a copy of the notice of determination from the
local service center reflecting these findings.
24
examining the limited pleadings herein, this could be in direct violation of the Center’s
policy, thereby taking Cuthbert out of the scope of her employment. Indeed, section
228 of the RESTATEMENT (SECOND) OF AGENCY provides, “Conduct of a servant is
within the scope of employment if, but only if: (a) it is of the kind he is employed to
perform” and “(c) it is actuated, at least in part, by a purpose to serve the master.”
§228(1)(a), (c). This section further provides, “Conduct of a servant is not within the
scope of employment if it is different in kind from that authorized, far beyond the
authorized time or space limits, or too little actuated by a purpose to serve the master.”
§228(2).
Certainly, an employee cannot be considered to be furthering an
employer’s interest in such a situation, nor can such conduct be considered merely
incidental to authorized conduct. Moreover, a serious question arises as to whether
such conduct constitutes a violation of the Public Official and Employee Ethics Act
and/or the Governor’s Code of Conduct,23 which would further buttress Mazur’s claim
that the alleged statements made by Cuthbert were outside the scope of her employment
with the Center.
While Mazur’s amended complaint does not definitely establish that
Cuthbert made knowingly false statements to her superiors or to the unemployment
compensation representative, the exact nature of her statements, and/or whether her
statements were simply misunderstood, the allegations contained within the amended
complaint, which must be accepted as true, are sufficient to overcome Cuthbert’s
preliminary objections. If Cuthbert knowingly made false statements to third parties,
she would not have been acting within the scope of her employment with the Center
and, hence, would not be entitled to immunity. In any event, the matter must be
23
Mazur also attached excerpts from each to her amended complaint.
25
remanded to the trial court for further proceedings with respect to Mazur’s amended
complaint.
Although Cuthbert failed to raise her affirmative defense of sovereign
immunity in a responsive pleading as new matter, because said defense was clearly
applicable on the face of the amended complaint, it falls within the exception allowing
the defense to be set forth via preliminary objection. Accordingly, the trial court’s
order is affirmed in part and reversed in part, and the matter is remanded, consistent
with this opinion.
________________________________
PATRICIA A. McCULLOUGH, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Margaret Mazur, :
Appellant :
: No. 1008 C.D. 2017
v. :
:
Jamie Cuthbert :
ORDER
AND NOW, this 16th day of April, 2018, the order of the Court of
Common Pleas of Allegheny County, dated April 7, 2017, is hereby affirmed in part
and reversed in part and the matter is remanded, consistent with this opinion.
Jurisdiction relinquished.
________________________________
PATRICIA A. McCULLOUGH, Judge