[ J

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EASTERN DISTRICT

SHIRETTA JUSTICE,

Appellant

v.

PENNSYLVANIA STATE POLICE TROOPER LOMBARDO,

Appellee :

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: No. 17 EAP 2018

Appeal from the Order of Commonwealth Court entered on 11/14/2017 at No. 1439 CD 2016 reversing the Order entered on 07/19/2016 in the Court of Common Pleas, Philadelphia County, Civil Division at No. 1729 September Term 2014.

ARGUED: December 6, 2018

DISSENTING O PINION

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 ad opted for analysis of the question of scope of employment

issues in the vicarious liability context , is an “awkward” fit in the sovereign immunity

conte xt. See Majority Op. at 17. Sovereign immunity issues implicate potential ly distinct

separati on 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 be en harmed by government actors . .

. . Understandably, some immunity ap plications may be[ J

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- 2 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 govern ment 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.3 d 740, 755 (Pa. 201 3) (footnotes an d 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 sovereig n
immunity as expressed by the L egislature in its e nactments. To that end, we have held

any exceptions authorized by the L egislature must be strictly construed. Jones v.

Southeastern Pa. Transp. Auth. , 772 A.2d 435, 440 (Pa. 2001).

The L egislature has re

- avowed the Commonwealth’s sovereign immunity

, sub ject

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

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immunity in this case is whether T rooper Lombardo was acting within the scope of his

employm ent

. 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 th e 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 intent ionally 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 sover eign 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

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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 w ere 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 vio lations of the Vehicle C ode. 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 necessita ted.

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 sugge sted to Ms. Jus tice

2 The V ehicle Code provides:

§ 3102. Obedience to authoriz ed 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 o r 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

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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 arr ive. 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 sc ope 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 circ umstances 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 dir ection 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 ref usal, is also immaterial.[ J

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employed.” Restatement (Second) of Agency § 235 (1958). However, where, as here,

such intent must be discerned from the actions themselves and “the servant . . . d oes 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 dis pute that the four

scope

- of

- employment elements of Section 228 of the Restatement had been met. 4

Trooper Lombardo’s ac tions 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

th e interest of the State Police in performing their duty to monitor traffic safety, and use

of force b y troopers in performing these duties is not unexpected by the State P olice.

The Majority characterizes the Commonwealth Court’s conclusion, that as long as

a trooper’s use of force is incidental to authorized c onduct 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 performe d “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 decision s 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 factor s for consi deration 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

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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 , t he 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 motivation s 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.