IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, : Appellant :

:

v. : No. 432 C.D. 2017

: Submitted: January 12, 2018 A. Clark, D. Campbell, Steven Glunt, : and Dorina Varner :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY JUDGE SIMPSON FILED: March 2 , 2018

Lamar Brown (Brown), an inmate incarcerated at the State Correctional

Institution (SCI) at Albion, representi ng himself, appeals from an order of the Centre

County Court of Common Pleas (trial court)

. 1 The trial court sustained the

preliminary objections of A. Clark (Clark), D. Campbell (Campbel l), Steven Glunt

(Glunt), and Do rina Varner (Varner) ( collective ly

, SCI Defendants), and dismissed

Brown’s defamation complaint. Upon review, we affirm the trial court’s order.

I. Background

Other than including their names in the caption, Brown’s complaint

contained no mention of Campbell, Glunt, or Varner. Brown alle ges that Clark, an

employee in the prison commissary, falsely reported to the unit manager that Brown

threw his identification at Clark and used profanity. Brown received a verbal

reprimand from the unit manager as a result of Clark’s report.

1 The Honorable Katherine V. Oliver presided

.2 In his com

plaint, Brown aver s Clark defamed him by making the false

report to the unit manager. He alleges Clark violated the Department of Corrections ’

(DOC) code of ethics by making a false report. Brown further avers Clark was not

acting within the scope of her employment when violating the code of ethics.

The SCI Defendants jointly filed preliminary objections in the nature

of demurrers to the complaint. All four SCI Defendants asserted that sovereign

immunity barred Brown’s action. See 1 Pa. C.S. §2310. I n addition, Campbell,

Glunt, and Varner sought dismissal because the complaint contained no averments

concerning them.

After briefing by the parties, the trial court sustained the SCI

Defendants’ preliminary objections. The trial court found all four SCI Defendants

were shielded by sovereign immunity. The trial court further found that the

complaint failed to plead any facts to support claims against Campbell, Glunt, and

Varner.

This appeal fo llowed. 2

II. Issue

On appeal, 3 Brown argues Clark is not entitled to sovereign immunity

.
He asserts that Clark’s allegedly false report about Brown’s conduct violated the

2 Brown filed his appeal in the Supe rior Court, which transferred the case to this Court.

3 This Court’s review of a trial court’s order sustaining preliminary objections is limited to determining whether the trial court committed an error of law or abused its discretion. Kull v.
Guisse , 81 A.3d 148 (Pa. Cmwlth. 2013), appeal denied , 91 A.3d 16 3 (Pa. 2014). A trial court3

DOC code of ethics, and

, therefore

, was outside the scope of her employment.

Brown asserts no argument relating to the trial court’s dismissal of Campbell, Glunt,

and Varner.

III. Discussion

Defamation is an intentional tort, and Commonwealth personnel are

immune from liability for intentional torts when acting in the scope of their

e mployment. Wilson v

. Marrow , 917 A.2d 357 (Pa. Cmwlth. 2007). Conduct is

within the scope of employment when it is the type of activity the person is employed

to perform, occurs in an authorized time and space, is at least partly in service of the

employ er’s interest, and does not in volv e a degree of force beyond that expected by

the employer. Kull v. Guisse , 81 A.3d 148 (Pa. Cmwlth. 2013), appeal denied , 91

A.3d 163 (Pa. 2014) (citing R ESTATEMENT (S ECOND ) OF A GENCY §228 (1958) ).

Here, Brown attempts to avoid the shield of sovereign immunity by

alleging that Clark violated the DOC code of ethics. Brown reasons that by doing

so, Clark acted outside the scope of her employment. This argument is without

merit.

Brown asserted the same argument in Brown v

. Sayors (Pa. Cmwlth.

, No. 1509 C.D. 2015, filed July 13, 2016), 106 Pa. Commw. Unpub. LEXIS 497

(unreported) . In Sayors , as here, Brown claimed a prison employee made false

may sustain preliminary objections only if it appears with certainty that the law will not allow

recovery. Id. All well

- pled facts in the complaint and all reasonable inferences from those facts are accepted as true. Id. Ho wever, a court need not accept as true unwarranted inferences, conclusions of law, argumentative allegations, or expressions of opinion. Id.4

reports of threatening and abusive speech by Brown. As here, Brown contended the

allegedly false statements were outside the scope of the defendant ’ s employment

because th e statements violated the DOC code of ethics.

This Court squarely rejected Brown’s argument in Sayors . We

concluded allegations of false or fabricated m isconduct reports do not overcome the

bar of sovereign immunity. Id. (citing Kull ; Brown v. Blaine , 833 A.2d 1166 (Pa.

Cmwlth. 2003 )). Sayors is consistent with other decisions of this Court applying

sovereign immunity to defamation claims against Common wealth personnel. See

,

e.g. , Wilson ; Blaine ; Yakowicz v. McDermott , 548 A.2d 1330 (Pa. Cmwlth. 1988),

appeal denied , 565 A.2d 1168 (Pa. 1989); Fennell v. Grove (Pa. Cmwlth., No. 995

C.D. 2015, filed March 18, 2016 )

, appeal denied , 159 A.3d 938 (Pa. 2016), 2016 Pa.

Commw. Unpub. LEXIS 228 (unreported)

.

Moreover, in Fennell , this Court held that an alleged violation of the

DOC code of ethics was immaterial to the issue of whether prison personnel’s

defamatory statements were within the scope of their emplo yment. Id. (citing La

Frankie v

. Miklich , 618 A.2d 1145 (Pa. Cmwlth. 1992)). Sayors and Fennell offer

persuasive precedents. 210 Pa. Code §69.414(a). 4

Additionally, in Holt v. Northwest Training Partnership Consortium

, 694 A.2d 1134 (Pa. Cmwlth. 1997), this Court upheld the application of sovereign

immunity to a prison warden for an alleged intentional tort. The plaintiff in Holt , a

4 Notably, in Brown v. Fox

, No. 14

- 109 Erie (W.D. Pa. May 12, 2017) , 2017 U.S. Dist. LEXIS 72597, a federal dist rict court upheld federal sovereign immunity in yet another intentional tort claim by Brown against prison personnel.5

transsexual, alleged that the warden tort i ously interfered with the plaintiff’s

employ ment by denying the plaintiff access to inmates to perform job training duties.

This Court concluded the warden’s conduct, even if tortious, was within the scope

of his employment because it also further ed the maintenance of order in the prison.

Similar ly, here, Clark’s allegedly false report of misconduct by Brown

facially furthered the maintenance of order by promoting orderly behavior by

inmates. Thus, like the warden’s conduct in Holt , Clark’s conduct was within the

scope of her employment because i t served, at least in part, her employer’s interest.

Brown’s reliance on Jacobs v. Department of Corrections , No. 04

- 1366

(W.D. Pa. Sept. 21, 2009), 2009 U.S. Dist. LEXIS 86060, is misplaced. In Jacobs

,
a federal district court , applying Pennsylvania la w, declined to enter summary

judgment for the defendant on the basis of sovereign immunity. However, Jacobs is

factually distinguishable. Unlike Brown here, the plaintiff in Jacobs averred facts

demonstrating that the defendant’s allegedly false report c oncerning the plaintiff

served the defendant’s personal interest in concealing his own misconduct . Because

Brown alleges no facts suggesting any personal interest served by Clark’s alleged

false report, Jacobs is inapplicable. Significantly , the federal trial court’s application

of Pennsylvania law in Jacobs also conflicts with this Court’s precedents cited

above.6 IV. Conclusion

Brown neither averred facts nor cited applicable authority to overcome

Clark’s assertion of sovereign immunity. Therefore, this Court affirms the trial

court ’s order sustain ing Clark’s preliminary objections and dismiss ing Brown’s

complaint.

ROBERT SIMPSON, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown, : Appellant :

:

v. : No. 432 C.D. 2017

: A. Clark, D. Campbell, Steven Glunt, : and Dorina Varner :

O R D E R

AND NOW , this 2 nd day of March , 2018, the order of the Court of

Common Pleas of Centre County is AFFIRMED

.

ROBERT SIMPSON, Judge