IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Douglas Ioven, :

: No. 543 C.D. 2016

Appellant : Argued: October 18, 2016

:

v. :

:

Chief Thomas Nestel :

and SEPTA :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)

OPINION 

BY SENIOR JUDGE FRIEDMAN FILED: November 30, 2016

Douglas Ioven appeals from the November 17, 2015, order of the Court 

of Common Pleas of Philadelphia County (trial court) that granted the motion for 

judgment on the pleadings filed by Chief Thomas Nestel and Southeastern 

Pennsylvania Transportation Authority (SEPTA) (together, Appellees) and dismissed 

Ioven’s complaint with prejudice. We affirm.

Nestel is the chief of police for SEPTA. Ioven, a former SEPTA 

employee, filed a complaint against Appellees alleging that Nestel published and 

distributed to various law enforcement agencies, an Officer Safety Bulletin (Bulletin) 

that contained false statements about Ioven. The Bulletin stated 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. The complaint also 
2

alleged that Nestel knew or should have known that the statements he made about 

Ioven were false and that Nestel acted within the course and scope of his employment 

when he made the statements. The complaint included claims against Nestel for 

slander, defamation, libel, and intentional infliction of emotional distress. The 

complaint also alleged that SEPTA was vicariously liable. Appellees filed 

preliminary objections, and on August 5, 2015, the trial court sustained Appellees’

preliminary objections, in part, and dismissed the intentional infliction of emotional 

distress claim.

On October 2, 2015, Appellees filed a motion for judgment on the 

pleadings, requesting that the trial court dismiss Ioven’s remaining claims based on 

sovereign immunity. On November 17, 2015, the trial court granted Appellees’ 

motion for judgment on the pleadings and dismissed Ioven’s complaint with 

prejudice. The trial court concluded that Ioven’s claims were barred under section 

8522 of Judicial Code, commonly known as the Sovereign Immunity Act, 42 Pa. C.S. 

§8522. This appeal followed.1

Initially, Ioven claims he can demonstrate slander and defamation per se, 

which bars Nestel from asserting sovereign immunity. We disagree.

 

1 Appellate review of an order granting a motion for judgment on the pleadings is limited to 

determining whether the trial court committed an error of law or abused its discretion. Holt v. 

Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134, 1138 n.8 (Pa. 

Cmwlth. 1997) (en banc). “The motion may be granted only where no material facts are at issue 

and the law is clear that a trial would be a fruitless exercise.” Id.
3

In accordance with 1 Pa. C.S. §2310, “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.” SEPTA is a 

Commonwealth agency for purposes of sovereign immunity. Nardella v. 

Southeastern Pennsylvania Transportation Authority, 34 A.3d 300, 303 (Pa. Cmwlth. 

2011). An employee of a Commonwealth agency such as Nestel, acting within the 

scope of his employment, “is protected by sovereign immunity from the imposition of 

liability for intentional tort claims.” La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. 

Cmwlth. 1992) (en banc). 

There are, however, nine exceptions to sovereign immunity, which are 

set forth in section 8522(b) of the Judicial Code, 42 Pa. C.S. §8522(b). The 

exceptions to sovereign immunity include: vehicle liability; medical-professional 

liability; care, custody, or control of personal property; Commonwealth real estate, 

highways, and sidewalks; potholes and other dangerous conditions; care, custody, or 

control of animals; liquor store sales; National Guard activities; and toxoids and 

vaccines. 42 Pa. C.S. §8522(b)(1)-(9).

Slander per se, defamation per se, and libel are not listed as exceptions

to sovereign immunity. Ioven does not allege that any of the nine exceptions to 

sovereign immunity apply. Therefore, Ioven’s claim is barred by sovereign 

immunity.
4

Next, citing section 8550 of the Judicial Code, 42 Pa. C.S. §8550, Ioven 

claims that immunity does not extend to acts constituting “actual malice” or “willful 

misconduct.” See Renk v. City of Pittsburgh, 641 A.2d 289, 292 (Pa. 1994) (“[a]n 

employee’s immunity does not extend to acts that are judicially determined to be 

crimes, actual fraud, actual malice, or willful misconduct.”). Ioven alleges that 

Nestel committed intentional and willful misconduct when he knowingly created the

Bulletin accusing Ioven of crimes, which Nestel knew Ioven did not commit. Ioven 

claims that Nestel cannot point to any criminal charges against Ioven to substantiate 

the allegations in the Bulletin. 

As Appellees correctly argue, however, Commonwealth employees do 

not lose their sovereign immunity protection for alleged claims of willful misconduct. 

Kull v. Guisse, 81 A.3d 148, 154 n.5 (Pa. Cmwlth. 2013). Waiver of immunity only 

applies to actions of local agency employees, not to Commonwealth employees, 

where their actions constitute a crime, actual fraud, actual malice, or willful 

misconduct. LaFrankie, 618 A.2d at 1149 n.4. 

Commonwealth employees do not lose their immunity for intentional 

torts, provided they are acting within the scope of their employment. Kull, 81 A.3d at 

154 n.5. Here, Ioven admitted in his complaint that Nestel acted within the scope of 

his employment when he made the statements in the Bulletin. As such, the trial court 

properly concluded that Nestel is protected by immunity. 
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Finally, Ioven, relying on Goldman v. Southeastern Pennsylvania 

Transportation Authority, 57 A.3d 1154 (Pa. 2012), claims that SEPTA is not entitled 

to sovereign immunity.

In Goldman the Pennsylvania Supreme Court stated that SEPTA is not 

an arm of the state for purposes of sovereign immunity under the Eleventh 

Amendment to the United States Constitution. 57 A.3d at 1160. Ioven contends that 

following Goldman, SEPTA is not an arm of the Commonwealth for purposes of the 

Sovereign Immunity Act. We disagree.

State statutory immunity and Eleventh Amendment immunity are 

distinct concepts. See Knox v. SEPTA, 81 A.3d 1016, 1022 (Pa. Cmwlth. 2013). The 

Goldman court noted that interpretation of the Sovereign Immunity Act does not 

control resolution of the question of whether SEPTA has Eleventh Amendment 

immunity from claims under the Federal Employees Liability Act (FELA), 45 U.S.C. 

§§51-60. 57 A.3d at 1165 n.9. 

In Knox this court explained:

A close reading of our Supreme Court’s decision in 

Goldman shows that the Court did not hold that SEPTA is 

not a Commonwealth agency for purposes of the Sovereign 

Immunity Act. . . . The Supreme Court specifically noted 

that it was not deciding whether Section 8522 . . . barred 

any claims brought under FELA. . . . ‘[B]ecause the issue of 

whether SEPTA is an arm of the Commonwealth entitled 

under the Eleventh Amendment to claim the protection of 

the Commonwealth’s sovereign immunity is a question of 

federal law,’ the Supreme Court held that interpretation of 

the Sovereign Immunity Act did not control its resolution of 

this question. Accordingly, we decline to extend the 
6

decision in Goldman to hold in this case that SEPTA is not 

a Commonwealth agency for purposes of the Sovereign 

Immunity Act.

Id. at 1022 (citations omitted). See also Muldrow v. Southeastern Pennsylvania 

Transportation Authority (SEPTA), 88 A.3d 269, 273 (Pa. Cmwlth.), appeal denied, 

99 A.3d 927 (Pa. 2014), which stated that “Goldman does not preclude us from 

holding that SEPTA is a Commonwealth agency for purposes of the Sovereign 

Immunity Act.”

In this case, SEPTA and Nestel are protected by sovereign immunity and 

Ioven has failed to allege any exceptions thereto. 

Accordingly, we affirm.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Douglas Ioven, :

: No. 543 C.D. 2016

Appellant : 

:

v. :

:

Chief Thomas Nestel :

and SEPTA :

O R D E R

AND NOW, this 30th day of November, 2016, we hereby affirm the 

November 17, 2015, order of the Court of Common Pleas of Philadelphia County.

___________________________________

ROCHELLE S. FRIEDMAN, Senior Judge