Justice, S., Aplt. v. Trooper Lombardo

[J-106-2018] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
SHIRETTA JUSTICE, : No. 17 EAP 2018
:
Appellant : Appeal from the Order of
: Commonwealth Court entered on
: 11/14/2017 at No. 1439 CD 2016
v. : reversing the Order entered on
: 07/19/2016 in the Court of Common
: Pleas, Philadelphia County, Civil
PENNSYLVANIA STATE POLICE : Division at No. 1729 September Term
TROOPER LOMBARDO, : 2014.
:
Appellee : ARGUED: December 6, 2018
DISSENTING OPINION
JUSTICE MUNDY DECIDED: May 31, 2019
I agree with the Commonwealth Court that Trooper Lombardo was acting within
the scope of his employment and was immune from liability under the doctrine of
sovereign immunity. Because I would affirm the Commonwealth Court’s judgment, I
respectfully dissent.
As noted by the Majority, the application of the Restatement (Second) of Agency
(1958), which we have adopted for analysis of the question of scope of employment
issues in the vicarious liability context, is an “awkward” fit in the sovereign immunity
context. See Majority Op. at 17. Sovereign immunity issues implicate potentially distinct
separation of powers and jurisdictional concerns.
The constitutionally-grounded, statutory doctrine of sovereign
immunity obviously serves to protect government
policymaking prerogatives and the public fisc. To a degree, it
has been tempered to recognize the rights and interests of
those who may have been harmed by government actors . . . .
Understandably, some immunity applications may be
distasteful to those who may discern government wrongdoing
. . . . In light of the constitutional basis for the General
Assembly’s allocation of immunity, however, the area
implicates the separation of powers among the branches of
government also crafted by the framers. Thus, in absence of
constitutional infirmity, courts are not free to circumvent the
Legislature’s statutory immunity directives pertaining to the
sovereign.
Scientific Games Int’l., Inc. v. Com., 66 A.3d 740, 755 (Pa. 2013) (footnotes and internal
citation omitted). In Scientific Games, we also remarked that “[a] more general
clarification of the relationship between sovereign immunity and jurisdiction may be
appropriate in the arena at large.” Id. at 756. To date, this court has not engaged in such
an inquiry, and the present case does not afford an opportunity to do so. Nevertheless,
it bears acknowledging that courts must be reticent to diminish the scope of sovereign
immunity as expressed by the Legislature in its enactments. To that end, we have held
any exceptions authorized by the Legislature must be strictly construed. Jones v.
Southeastern Pa. Transp. Auth., 772 A.2d 435, 440 (Pa. 2001).
The Legislature has re-avowed the Commonwealth’s sovereign immunity, subject
only to certain specific enumerated exceptions not applicable here.
§ 2310. Sovereign immunity reaffirmed; specific waiver
Pursuant to section 11 of Article 1 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. . . .
Pa.C.S.A. § 2310 (emphasis added). It is not contested that State Police troopers are
employees protected by sovereign immunity. See La Frankie v. Miklich, 618 A.2d 1145,
1148 (Pa. Cmwlth. 1992). Thus, the limiting factor for the applicability of sovereign
[J-106-2018] [MO: Donohue, J.] - 2
immunity in this case is whether Trooper Lombardo was acting within the scope of his
employment.1 Therefore, although we employ the concepts of the Restatement to
analyze scope-of-employment issues, consistent with our strict interpretation of statutory
exceptions we must also strictly construe the Restatement’s scope-of-employment
requirements in the sovereign immunity paradigm.
As expressed by the Commonwealth Court and the Majority, Section 228 of the
Restatement defines when an employee’s conduct is within the scope of his or her
employment.
(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.
1 [F]or practical purposes under Pennsylvania law, there are
two ways to overcome sovereign immunity. First, the
legislature has waived sovereign immunity by statute in nine
specific areas. 42 Pa. Cons. Stat. § 8522(b) (listing the nine
exceptions to sovereign immunity). Second, sovereign
immunity does not protect Commonwealth employees acting
outside the course and scope of their employment.
Sarin v. Magee, 333 F. Supp. 3d 475, 481 (E.D. Pa. 2018).
[J-106-2018] [MO: Donohue, J.] - 3
Restatement (Second) of Agency § 228 (1958).
The Commonwealth Court reviewed the evidence in the case, adhering to its
standard of review of a trial court’s denial of a motion for JNOV. Justice v. Lombardo,
173 A.3d 1230, 1237 n.7, 1239 (Pa. Cmwlth. 2018). It found that the evidence
demonstrated Trooper Lombardo’s actions were incidental to his authority to “enforce all
laws of the Commonwealth including those ‘regulating the use of the highways of this
Commonwealth . . . .’” Id. at 1239. Accordingly, it concluded the trial court committed an
error of law in denying Trooper Lombardo’s motion for JNOV.
There is no dispute, that Trooper Lombardo was authorized to stop Ms. Justice
and cite her for violations of the Vehicle Code. Additionally, Ms. Justice’s conduct in
operating the vehicle with a suspended driver’s license created a traffic safety hazard in
that the removal of her vehicle from a busy limited access highway was necessitated.
Under the Vehicle Code, police officers are authorized to direct traffic, and individuals of
the public are obligated to obey lawful orders and directions by such officers. See 75
Pa.C.S. §§ 3102, 3111.2 Instantly, Trooper Lombardo initially suggested to Ms. Justice
2 The Vehicle Code provides:
§ 3102. Obedience to authorized persons directing traffic
No person shall willfully fail or refuse to comply with any lawful
order or direction of:
(1) any uniformed police officer, sheriff or constable or, in an
emergency, a railroad or street railway police officer[.]
75 Pa.C.S. § 3102(1).
§ 3111. Obedience to traffic-control devices
(a) General rule.--Unless otherwise directed by a uniformed
police officer or any appropriately attired person authorized to
direct, control or regulate traffic, the driver of any vehicle shall
[J-106-2018] [MO: Donohue, J.] - 4
that she could contact a licensed driver to come and retrieve the vehicle. After processing
the citations, no driver having arrived, Trooper Lombardo arranged for the vehicle to be
towed. After the arrival of the tow truck, again with no driver having appeared on the
scene, Trooper Lombardo directed Ms. Justice to enter his patrol vehicle to transport her
to a place of safety. Ms. Justice refused, pleading with Trooper Lombardo to wait longer
for the licensed driver to arrive. Thereupon, Trooper Lombardo physically subdued and
handcuffed Ms. Justice.3
While there concededly are conflicting accounts regarding the manner in which
Trooper Lombardo performed his duties, these disparities in narratives do not implicate
the scope of employment at issue in this case. It is true that authorized conduct by an
employee may be outside the scope of employment if entirely motivated to serve a
private end. “An act of a servant is not within the scope of employment if it is done with
no intention to perform it as a part of or incident to a service on account of which he is
obey the instructions of any applicable official traffic-control
device placed or held in accordance with the provisions of this
title, subject to the privileges granted the driver of an
emergency vehicle in this title.
Id. § 3111 (emphasis added).
3 The Majority and Concurrence make much of the fact that Ms. Justice was behind the
Jersey barriers at the time Trooper Lombardo requested her to enter his patrol car, and
that the citations occasioning the initial stop had been issued. Maj. Op. at 24, 25 n. 16.
Neither of these circumstances is relevant to the inquiry. Trooper Lombardo would not
have been obligated to remain on the scene after the tow truck removed the vehicle, in
order to accommodate Ms. Justice’s wish to wait for the arrival of the people she had
asked to provide her transportation. Additionally, leaving her unaccompanied and without
the emergency lights of his vehicle at the scene for her to await pickup on I-76, a busy,
limited-access highway where pedestrians are prohibited would have been problematic.
His direction to her to enter his vehicle for transportation to a place of safety was
authorized and served the safety mission of his employer. Ms. Justice’s refusal was
contrary to Section 3102 of the Vehicle Code. That she was not ultimately cited for her
refusal, is also immaterial.
[J-106-2018] [MO: Donohue, J.] - 5
employed.” Restatement (Second) of Agency § 235 (1958). However, where, as here,
such intent must be discerned from the actions themselves and “the servant . . . does the
kind of act which he is authorized to perform within working hours and at an authorized
place, there is an inference that he is acting within the scope of employment.” Id.
cmt. a (emphasis added).
Under these facts, viewed in the light most favorable to Ms. Justice, the
Commonwealth Court correctly concluded there was no factual dispute that the four
scope-of-employment elements of Section 228 of the Restatement had been met.4
Trooper Lombardo’s actions were of the kind he is employed to perform; he performed
them within an authorized time and location; they were actuated at least in part to serve
the interest of the State Police in performing their duty to monitor traffic safety, and use
of force by troopers in performing these duties is not unexpected by the State Police.
The Majority characterizes the Commonwealth Court’s conclusion, that as long as
a trooper’s use of force is incidental to authorized conduct it is within the scope of
employment, as “expansive.” Maj. Op. at 22. To the contrary, I believe the
Commonwealth Court’s conclusion is consistent with the language of Section 228 of the
Restatement, which requires only that actions be authorized and performed “at least in
part” in the service of the employer’s purpose. Rather, it is the Majority that undermines
the reach of sovereign immunity by reducing scope-of-employment inquiries to jury
questions on the wisdom and propriety of a state trooper’s decisions in the performance
4 The Restatement identifies additional criteria for determining when unauthorized actions
may nevertheless be deemed within an employee’s scope of employment. See
Restatement (Second) of Agency § 229 (1958) (enumerating factors for consideration
when an action is unauthorized but may be of the same nature as an authorized action);
id. § 230 (noting expressly forbidden acts may be within the scope of employment when
such acts may be anticipated in achieving a required goal); id § 231(noting even
consciously criminal or tortious conduct may be within the scope of employment). These
sections do not come into consideration where, as here, the actions in question are
authorized.
[J-106-2018] [MO: Donohue, J.] - 6
of his or her duties. The Majority and Concurrence skew the focus from the connection
between a trooper’s action and his or her authorized duty, to an examination into
subjective motive, wisdom, necessity, and ultimate effect of those actions.
The consequence of the Majority’s decision today will be to introduce a chilling
effect on troopers performing their duties. Rather than strictly construing limitations on
exceptions to sovereign immunity, the Majority broadly construes a jury’s role in
determining what circumstances may be considered outside the scope of employment
based on little more than subjective allegations of private motivations on the part of a
trooper in the performance of his or her duties. In doing so, the Majority undermines the
role of the legislature in defining the extent to which sovereign immunity shall apply.
Accordingly, I respectfully dissent.
[J-106-2018] [MO: Donohue, J.] - 7