IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

JOHN BM DOE, Plaintiff/Appellant,

v.

THE ROMAN CATHOLIC CHURCH OF THE DIOCESE 

OF PHOENIX, et al., Defendants/Appellees.

No. 1 CA-CV 22-0143

Appeal from the Superior Court in Maricopa County

No. CV2016-015552

The Honorable Michael W. Kemp, Judge

The Honorable Katherine Cooper, Judge

DISMISSED IN PART; AFFIRMED IN PART

COUNSEL

Ahwatukee Legal Office, P.C., Phoenix

By David L. Abney

Co-Counsel for Plaintiff/Appellant

Montoya, Lucero & Pastor, P.A., Phoenix

By Robert E. Pastor

Co-Counsel for Plaintiff/Appellant

FILED 6-29-2023
2

Coppersmith Brockelman PLC, Phoenix

By John C. Kelly

Co-Counsel for Defendants/Appellees The Roman Catholic Church of the Diocese 

of Phoenix and St. Mark Roman Catholic Church Parish Phoenix

Lewis Roca Rothgerber Christie LLP, Phoenix

By Nicolas Scott Bauman, John C. Gray

Co-Counsel for Defendants/Appellees The Roman Catholic Church of the Diocese 

of Phoenix and St. Mark Roman Catholic Church Parish Phoenix

Thorpe Shwer, P.C., Phoenix

By William L. Thorpe, Mitchell W. Fleischmann

Co-Counsel for Defendant/Appellee The Society of the Divine Savior USA 

Province

Laffey, Leitner and Goode, LLC, Milwaukee, Wisconsin

By John J. Laffey Pro Hac Vice

Co-Counsel for Defendant/Appellee The Society of the Divine Savior USA 

Province

Jones Skelton & Hochuli, PLC, Phoenix

By Elizabeth B.N. Garcia, Patrick C. Gorman, Ashley E. Caballero-Daltrey, 

Donald L. Myles, Jr.

Counsel for Amicus Curiae USA West Province, Society of Jesus and Brophy 

College Preparatory

OPINION

Presiding Judge Maria Elena Cruz delivered the opinion of the Court, in 

which Judge Angela K. Paton and Judge Daniel J. Kiley1 joined.

C R U Z, Judge:

¶1 John BM Doe appeals from the grant of summary judgment

in favor of The Society of the Divine Savior USA Province (“the 

1 Judge Daniel J. Kiley replaced Judge Peter B. Swann, who was 

originally assigned to this panel but has since retired. Judge Kiley has read 

the briefs, watched the recorded oral argument, and reviewed the record.
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

3

Salvatorians”), The Roman Catholic Church of the Diocese of Phoenix (“the 

Diocese”), and the St. Mark Roman Catholic Church Parish Phoenix (“St. 

Mark” and, together with the Diocese, “the Diocese Defendants”). We 

dismiss in part and affirm in part.

FACTUAL AND PROCEDURAL HISTORY

¶2 Viewed in the requisite light most favorable to Doe as the 

party against whom summary judgment was granted, S. Point Energy Ctr. 

LLC v. Ariz. Dep’t of Revenue, 253 Ariz. 30, 33, ¶ 10 (2022), the facts in the 

record establish that, after a motorcycle accident in 2014, Doe awoke from 

a coma and saw a priest in his hospital room. Doe claims that seeing the 

priest caused him to remember sexual abuse he suffered in 1983 at the 

hands of Dennis Pecore, a Roman Catholic priest. Before the coma, Doe 

claims he had involuntarily and subconsciously repressed his memories of 

the sexual abuse to cope with the trauma.

¶3 The Salvatorians are a Roman Catholic religious order

operating separately from dioceses. Religious orders ordain their own 

priests, who vow obedience to the “major superior” of their order. In 

contrast, diocesan priests promise obedience to a diocese’s bishop. 

Religious orders may assume responsibility over specific parishes within a 

diocese, which includes providing priests to serve there. Throughout the 

1980s, the Salvatorians assumed responsibility over St. Mark, a parish 

within the Diocese.

¶4 Pecore was ordained a Salvatorian priest in 1982, and his first 

assignment was to serve as an associate pastor at St. Mark. Thomas O’Brien,

the then-bishop of the Diocese, accepted Pecore’s assignment to St. Mark

and granted Pecore authority to minister there based on the 

recommendation of the Salvatorians.

¶5 Doe alleges that Pecore molested him in 1983 when Doe was 

a sixth grader at the elementary school operated by St. Mark. Doe had been 

instructed to meet with Pecore throughout the school year for spiritual 

counseling. Soon after these meetings started, Pecore began engaging with 

Doe through other activities, such as playing basketball, helping him with 

schoolwork, and taking him to restaurants.

¶6 In the spring of 1983, Pecore took Doe on a camping trip. 

There, they slept together in the bed of Pecore’s pickup truck. At night, Doe 

alleges, Pecore woke him up, fondled him, and penetrated him. Before 

dropping him off at home the next day, Pecore instructed Doe not to tell 

anyone what had happened. Doe recalled two or three subsequent 
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

4

incidents of sexual abuse that occurred in Pecore’s living quarters at the 

church rectory, with one of those incidents also resulting in penetration. 

After those spring 1983 incidents at Pecore’s living quarters, Doe told his 

mother he did not want to see Pecore for counseling anymore, and the 

meetings ended. Doe claims he repressed these memories until his 

motorcycle accident in 2014 and did not report the abuse to anyone until 

January 2016.

¶7 In May 1983, St. Mark closed its elementary school, and 

Pecore was assigned to a parish in Milwaukee, Wisconsin. In 1987, while 

in Milwaukee, Pecore was convicted of sexually assaulting a minor. In 1993,

he was convicted of sexually assaulting another minor. And in 2002, a 

parishioner reported to the Archdiocese of Baltimore that Pecore had 

abused her son in the 1970s when Pecore had served there as a Salvatorian 

brother before he was ordained a priest.

¶8 After Doe reported the abuse in January 2016, the Salvatorians 

investigated and determined the report was credible. The Diocese 

published a community notification advising parishioners of the 

accusations.

¶9 Doe filed this lawsuit in 2016 against Pecore, the Salvatorians, 

and the Diocese Defendants. He asserted a claim against Pecore for sexual 

assault/sexual abuse/molestation; a claim against the Salvatorians and the 

Diocese Defendants for negligent hiring/supervision/retention; and claims 

against all defendants for breach of fiduciary duty, intentional infliction of 

emotional distress (“IIED”), intentional and negligent misrepresentation,

endangerment, child abuse, and assault and battery. The child abuse, 

misrepresentation, and assault and battery claims rested, in whole or in 

part, on a theory of vicarious liability.

¶10 After several years of discovery, the Salvatorians and the 

Diocese Defendants filed motions for summary judgment. The superior 

court granted these motions and dismissed all claims against the 

Salvatorians and the Diocese Defendants, allowing only the claims against 

Pecore to proceed.

¶11 The court entered Arizona Rule of Civil Procedure (“Rule”)

54(b) partial final judgments in favor of the Salvatorians on August 26, 2021, 

and in favor of the Diocese Defendants on August 30, 2021. Doe filed a 

motion for new trial as to both judgments on September 14, 2021, which the 

court denied. Doe appealed in January 2022, and we have jurisdiction 
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

5

pursuant to Arizona Constitution Article 6, Section 9, and Arizona Revised 

Statutes (“A.R.S.”) section 12-2101(A)(1).

DISCUSSION

I. Doe’s Appeal from the Rule 54(b) Judgment in Favor of the 

Salvatorians Was Untimely.

¶12 To appeal a judgment in a civil case, a party must generally 

file a notice of appeal “no later than 30 days after entry of the judgment 

from which the appeal is taken.” ARCAP 9(a). Certain motions, including

motions for a new trial, may toll this thirty-day window if timely and 

properly filed. Id. at (e)(1)(D). Motions for a new trial “must be filed no 

later than 15 days after the entry of judgment.” Ariz. R. Civ. P. 59(b)(1).

¶13 Here, the superior court entered its partial final appealable

judgment granting the Salvatorians’ motion for summary judgment on 

August 26, 2021. Doe did not file a motion for a new trial until September 

14, 2021, nineteen days after the entry of the Rule 54(b) judgment. Because 

the motion for a new trial was not filed within fifteen days of entry of the 

Rule 54(b) judgment in favor of the Salvatorians, it was not timely and did 

not toll the thirty-day deadline for filing a notice of appeal. See ARCAP

9(e)(1)(D). Doe’s notice of appeal from the Rule 54(b) judgment in favor of 

the Salvatorians was therefore due no later than September 25, 2021. Doe 

did not file it until January 28, 2022. The notice of appeal was therefore 

untimely, and we lack jurisdiction over the appeal against the Salvatorians.

See In re Real Prop. Known as 3567 E. Alvord Road, 249 Ariz. 568, 571, ¶ 5 (App. 

2020) (“If an appeal is not timely filed ‘the appellate court acquires no 

jurisdiction other than to dismiss the attempted appeal.’” (quoting Edwards 

v. Young, 107 Ariz. 283, 284 (1971))).

¶14 Correctly noting that the motion for a new trial he filed on 

September 14, 2021, tolled the deadline for filing a notice of appeal from the 

Rule 54(b) judgment entered in favor of the Diocese Defendants on August 

30, 2021, Doe argues that the motion for a new trial necessarily tolled the 

deadline for appealing from the Rule 54(b) judgment in favor of the 

Salvatorians as well. Doe relies on Payne v. M. Greenberg Construction, 130 

Ariz. 338 (App. 1981), in which this court held that a motion for a new trial 

properly filed against one defendant tolled the thirty-day deadline for filing 

a notice of appeal as to both defendants. Id. at 342, overruled in part by

Webster v. Culbertson, 158 Ariz. 159 (1988). The separate judgments in Payne, 

however, were not entered under Rule 54(b) and thus did not become final 

and appealable until judgment had been entered against both defendants. 
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

6

Id. at 341. Because there was only one final, appealable judgment, the

motion for a new trial extended the time to appeal against all defendants. 

Id. at 342. Here, the judgments against the Diocese Defendants and the 

Salvatorians were separately entered on different days, each pursuant to 

Rule 54(b). Therefore, each judgment is a partial final judgment pertaining 

to different defendants, and each judgment has its own deadlines for filing 

appeals and motions for new trial.

¶15 Doe next argues that A.R.S. § 12-2101(A)(5)(a), which allows 

an appeal to be taken from an order granting or refusing a new trial, 

“controls the statutory right to file a notice of appeal from a trial court order 

refusing a new trial,” and so “takes priority over” deadlines established by 

court rules. While it is true that a statute creating a substantive right 

prevails over a procedural rule in the event of a conflict, see City of Phoenix 

v. Johnson, 220 Ariz. 189, 192, ¶ 14 (App. 2009), this principle does not apply 

here. Section 12-2101 and ARCAP 9 do not conflict; the former provides the 

basis for bringing an appeal, while the latter establishes deadlines for doing 

so. See Pompa v. Superior Court, 187 Ariz. 531, 534 (App. 1997) (“Although 

the right to appeal is a substantive right granted by the legislature, rules of 

procedure govern the way in which that right may be exercised.”).

¶16 Doe argues that his notice of appeal from the Rule 54(b) 

judgment in favor of the Salvatorians was timely under court rules because 

ARCAP 9(a) states that a party must file a notice of appeal no later than 

thirty days after the entry of judgment “unless the law provides a different 

time.” According to Doe, A.R.S. § 12-2101(A)(5)(a) “provides a different 

time” within the meaning of ARCAP 9(a) by allowing an appeal to be taken 

from an order refusing a new trial. Section 12-2101(A)(5)(a) does not, 

however, establish any deadline for filing a notice of appeal, much less a 

deadline “different” from the deadline created by ARCAP 9(a). Nothing in 

§ 12-2101(A)(5)(a) relieves Doe of the consequences of his failure to meet 

ARCAP 9(a)’s deadline for filing a notice of appeal from the Rule 54(b) 

judgment in favor of the Salvatorians.

¶17 Doe failed to timely appeal. Accordingly, the appeal from the

Rule 54(b) judgment in favor of the Salvatorians is dismissed for lack of 

appellate jurisdiction.

II. The Superior Court Properly Granted Summary Judgment in Favor 

of the Diocese Defendants.

¶18 Doe argues the superior court erred in granting the Diocese 

Defendants’ motion for summary judgment. “The court shall grant 
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Opinion of the Court

7

summary judgment if the moving party shows that there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law.” Ariz. R. Civ. P. 56(a). Summary judgment is not 

appropriate when the court simply believes the movant will probably win, 

or should win, at trial. Orme Sch. v. Reeves, 166 Ariz. 301, 310 (1990). We 

review a grant of summary judgment de novo, viewing the facts “in the 

light most favorable to the party against whom summary judgment has 

been entered.” United Dairymen of Ariz. v. Schugg, 212 Ariz. 133, 140, ¶ 26

(App. 2006); accord S. Point Energy Ctr. LLC, 253 Ariz. at 33, ¶ 10.

A. Direct Liability

¶19 Doe asserted direct liability claims against the Diocese 

Defendants for breach of fiduciary duty; IIED; misrepresentation; negligent 

hiring, supervision, and retention; and endangerment. In its ruling 

granting the Diocese Defendants’ motion for summary judgment on these 

claims, the superior court recognized the claims required proof that the 

Diocese Defendants “knew or should have known that Pecore was unfit to 

teach or counsel young children or that he was a danger to children prior 

to his abuse of [Doe].” The superior court determined that there was no 

evidence the Diocese Defendants “[knew or] should have known of the 

danger” Pecore posed to children in or before the spring of 1983, the time 

Doe alleges Pecore abused him.

¶20 Doe does not dispute that the Diocese Defendants cannot be 

liable on his direct liability claims absent notice of Pecore’s sexual 

propensities. But he nonetheless insists there was enough evidence from 

which a reasonable jury could conclude the Diocese Defendants had notice

of the danger Pecore posed to children in or before the spring of 1983. Doe 

also asserts that Pecore left his seminary studies because he was involved 

in a homosexual relationship with another seminarian in violation of 

Roman Catholic doctrine and that he was ordained by the Salvatorians 

without the standard recommendation from the seminary. Doe claims that, 

based on these facts, reasonable jurors could infer that if the Diocese 

Defendants had acted with due diligence, they “would have discovered 

that Pecore was utterly unsuitable to be a priest in charge of schoolchildren” 

and “should have never been ordained at all.”

¶21 Even assuming the facts as alleged are true, they would not 

support Doe’s claims. First, Pecore’s involvement in a sexual relationship 

with another consenting adult, whether male or female, does not bear on 

any risk he may have posed to children. Cf. State v. Aguilar, 209 Ariz. 40, 43,

¶ 11, (2004) (sexual activity with children is considered aberrant sexual 
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

8

behavior). Second, the ecclesiastical abstention doctrine prevents us from 

addressing whether Pecore was duly ordained without the seminary’s 

recommendation. See Ad Hoc Comm. of Parishioners of Our Lady of Sun Cath. 

Church, Inc. v. Reiss, 223 Ariz. 505, 510, ¶¶ 11-12 (App. 2010) (holding that 

the court could not inquire into whether a priest was qualified to be duly 

ordained under the ecclesiastical abstention doctrine).

¶22 Doe also points to an incident in which Pecore allegedly 

inappropriately touched K.M., an adult male teacher working as a music 

minister at St. Mark. After graduating from high school in 1981, K.M. 

worked at St. Mark’s Elementary School during the 1982-1983 school year. 

K.M. claimed that, while on a trip to a youth camp during that school year, 

he and Pecore slept in the back of Pecore’s pickup truck and Pecore “made 

attempts to be sexual” by “grabbing” and touching him inappropriately. 

K.M. stated he “rejected [Pecore’s] advances with a stern, no.” In January 

1983, K.M. reported the incident to three priests at St. Mark: Father Wagner, 

a Salvatorian priest working as the hospital chaplain at St. Mark; Father 

Thiessen, the Salvatorians’ Director of Personnel; and Father Portland, the 

Salvatorian vicar provincial.

¶23 Doe asserts that K.M.’s report to Father Wagner, St. Mark’s 

hospital chaplain, constituted notice to the Diocese Defendants because St. 

Mark is part of the Diocese.2 And based on that report, Doe argues, a

reasonable juror could conclude that “a priest who is willing to violate his 

vow of celibacy and sexually assault a young [adult] man . . . would be 

willing to do even more, and sexually assault one of the available, 

compliant, and vulnerable underage boys in his care.”

¶24 The Diocese Defendants assert that they never received 

information about K.M.’s report. The superior court acknowledged that 

K.M. reported Pecore’s alleged abuse to three Salvatorian priests but

concluded that “there is no evidence any information was passed on to the 

Diocese Defendants.”

¶25 The superior court’s conclusion is supported by the record. 

There is no evidence that Father Wagner shared K.M.’s report with the 

Diocese Defendants. Father Thiessen testified at his deposition that he did 

not share K.M.’s report with the Diocese Defendants, and the Diocese’s 

vicar of priests discovered no such report in the Diocese’s files. Doe 

2 In his deposition, Thomas J. Olmstead, the bishop of the Diocese 

when this case was filed, stated that parishes are part of the ministry of the 

Diocese.
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Opinion of the Court

9

presented no evidence to the contrary. The uncontroverted evidence in the 

record would not allow reasonable jurors to conclude that K.M.’s January 

1983 report constituted actual notice to the Diocese Defendants of Pecore’s 

assault on K.M.

¶26 Doe suggests that notice of K.M.’s report to the three 

Salvatorian priests should be imputed to the Diocese Defendants because 

they and the Salvatorians were joint venturers in their employment of 

Pecore. Notice to one party to a joint venture, he reasons, serves as notice 

to all. See Conner v. El Paso Nat. Gas Co., 123 Ariz. 291, 293 (App. 1979) 

(“Where a joint venture exists, each of the parties is the agent of the others 

and each is likewise a principal of the others so that the act of one is the act 

of all.”).

¶27 The Diocese Defendants contend Doe raised this argument for 

the first time on appeal and therefore waived it. Doe responds that he took 

the position that the Salvatorians and the Diocese Defendants were joint 

venturers in his first amended complaint and in his response to the Diocese 

Defendants’ motion for summary judgment.

¶28 While it is true that Doe alleged, in his first amended 

complaint, that all defendants were “joint venturers” of “each and every 

other Defendant,” an unsworn allegation in a pleading is insufficient as a 

matter of law to defeat summary judgment. See Kelly v. NationsBanc Mortg. 

Corp., 199 Ariz. 284, 287, ¶ 15 (App. 2000) (“[A] party opposing a motion for 

summary judgment may not rest on the pleadings; it must respond with 

specific facts showing a genuine issue for trial.”). More significantly, the 

record does not support Doe’s claim that he raised the “joint venturer” 

theory of liability in summary judgment proceedings before the superior 

court. On the contrary, in his response to the Diocese Defendants’ motion 

for summary judgment, Doe acknowledged that the Diocese Defendants 

were not privy to the troubling information about Pecore known to the 

Salvatorians but faulted the Diocese Defendants for failing to “ask the 

Salvatorians to provide information regarding Fr. Pecore’s history” before 

allowing him to serve as a priest at St. Mark. Doe did not raise his “joint 

venturer” theory of liability in post-judgment filings either. Because Doe 

did not properly raise the “joint venturer” theory of liability in superior 

court, he has waived the theory on appeal, and we decline to consider it.

See Lansford v. Harris, 174 Ariz. 413, 419 (App. 1992) (“On appeal from 

summary judgment, the appellant may not advance new theories or raise 

new issues to secure a reversal.”); see also Cont’l Lighting & Contracting, Inc. 

v. Premier Grading & Utils., LLC, 227 Ariz. 382, 386, ¶ 12 (App. 2011) (“The 

general law in Arizona is that legal theories must be presented timely to the 
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Opinion of the Court

10

trial court so that the court may have an opportunity to address all issues 

on their merits.”).

¶29 Even assuming the Diocese Defendants had timely notice of 

K.M.’s January 1983 report, it would not support an argument that a 

reasonable juror could infer from K.M.’s report that the Diocese Defendants 

knew or should have known Pecore posed a danger to children. K.M. stated 

that Pecore “developed a relationship with [him] that crossed boundaries”

because Pecore showed him “special attention,” “excessively 

compliment[ed] [his] music ministry,” gave him “expensive” gifts, and told 

K.M. “he was developing feelings for” him. After these advances, K.M. 

accepted Pecore’s offer to drive him to the youth camp, and while sleeping 

together in the back of Pecore’s truck, he rejected Pecore’s “attempts to be 

sexual.” The record shows that the interaction between Pecore and K.M.

involved an adult male’s romantic pursuit of another adult male that 

culminated in an arguably non-consensual sexual touching that ceased 

when rebuffed. It is not a scenario of an adult sexually preying on a child

such that the Diocese Defendants would have been on notice that Pecore 

was sexually interested in, or posed a danger to, children. We are 

persuaded by the Diocese’s argument and the superior court’s conclusion 

that there is “no credible connection between” K.M.’s report and “Pecore 

posing a danger to children” because “[a]n adult homosexual is no more 

likely to be a sexual predator of children than an adult heterosexual.”

¶30 Finally, Doe asserts that “[the] general pattern of sexual 

abuse” of other victims by other priests put the Diocese Defendants on 

notice of “an unreasonable risk” of harm Pecore posed to Doe. As a matter 

of law, however, acts of sexual abuse by other priests cannot constitute notice 

of a threat of harm posed by Pecore. See Doe v. Byzantine Cath. Diocese of 

Parma, CV-21-01424-PHX-JJT, 2022 WL 1664282 at *3 (D. Ariz. May 25, 2022) 

(order denying motion to remand, granting in part and denying in part 

motions to dismiss and dismissing claims as time barred, and denying as 

moot request for judicial notice) (“Under no legal theory is [a religious 

entity] liable for the acts of one employee based on the prior, unrelated 

misconduct of another employee.”).

¶31 The superior court properly granted summary judgment in 

favor of the Diocese Defendants on Doe’s direct liability claims because no 

evidence in the record indicates that they had notice that Pecore posed a 

threat of harm to children.
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Opinion of the Court

11

B. Vicarious Liability

¶32 Doe alleges that the Diocese Defendants are liable for child 

abuse, misrepresentation, and assault and battery under the doctrine of 

respondeat superior, which holds an employer vicariously liable for the

tortious behavior “of an employee who was acting within the course and 

scope of his employment.” See Pruitt v. Pavelin, 141 Ariz. 195, 205 (App. 

1984). The superior court concluded the Diocese Defendants could not be 

held vicariously liable because “Pecore’s conduct was clearly outside the 

scope of employment.” We agree.

¶33 “An employer is vicariously liable for the negligent or 

tortious acts of its employee acting within the scope and course of 

employment.” Baker ex rel. Hall Brake Supply, Inc. v. Stewart Title & Tr. of 

Phoenix, Inc., 197 Ariz. 535, 540, ¶ 17 (App. 2000). An employee’s conduct 

is “within the scope [of employment] if it is the kind the employee is 

employed to perform, it occurs within the authorized time and space limits, 

and furthers the employer’s business even if the employer has expressly 

forbidden it.” Id.

¶34 In determining whether an employee’s tortious act is in 

furtherance of employment, the relevant question is not whether the 

employer could have expected or foreseen it. On the contrary, an 

employee’s tortious act may be in furtherance of his or her employment 

“even if the employer has expressly forbidden it.” Id. Whether an 

employee’s tortious act is in furtherance of employment depends instead 

on whether the employee “was performing a service in furtherance of his 

employer’s business,” irrespective of “whether it was done in a manner 

exactly as the employer prescribed.” Higgins v. Assmann Elecs., Inc., 217 

Ariz. 289, 297, ¶ 32 (App. 2007) (quoting Ortiz v. Clinton, 187 Ariz. 294, 299

(App. 1996)). The owner of a retail establishment, for example, may be 

vicariously liable for an assault committed by a security guard against a 

customer suspected of shoplifting. See Simon v. Safeway, Inc., 217 Ariz. 330, 

340, ¶ 25 n.12 (App. 2007) (noting that supermarket would be vicariously 

liable for security guard’s assault on plaintiff customer if plaintiff “should 

ultimately prove an employer-employee relationship”). An employer will 

not be vicariously liable, however, for an employee’s tortious act

undertaken solely for the employee’s own purposes. Restatement (Third) 

of Agency § 7.07 (2006) (“An employee’s act is not within the scope of 

employment when it occurs within an independent course of conduct not 

intended by the employee to serve any purpose of the employer.”).
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Opinion of the Court

12

¶35 Generally, whether an employee’s conduct is within the 

course and scope of employment is a question of fact for the jury. Smith v. 

Am. Express Travel Related Servs. Co., 179 Ariz. 131, 136 (App. 1994). “It is a 

question of law, however, if the undisputed facts indicate that the conduct 

was clearly outside the scope of employment.” Id.

¶36 In Smith, we held that an employer was not vicariously liable 

for acts of sexual harassment, including unwanted physical contact and 

forced sexual intercourse, committed by a supervisor against another 

employee. Id. We reasoned that the supervisor’s “conduct was outside the 

scope of his employment” because his acts “were not expressly or impliedly 

authorized as part of his job duties” or “incidental to his employment” and 

were “committed solely to further his own personal interests.” Id. The 

same reasoning applies here. No evidence in the record would support a 

finding that the acts Doe accuses Pecore of were expressly or impliedly 

authorized as part of his job duties or incidental to his employment as a 

priest, teacher, or counselor. The acts were committed not for any purpose 

of his employer, but solely to gratify Pecore’s personal, apparently sexual 

desires. Under Smith, Pecore’s alleged conduct was not undertaken in the 

course and scope of his employment, and therefore the Diocese Defendants 

cannot, as a matter of law, be vicariously liable for them.

¶37 Our holding that the Diocese Defendants cannot be held 

vicariously liable for Pecore’s sexual abuse of a child is consistent with that 

of the majority of courts in other jurisdictions that have addressed this 

issue. See, e.g., Tichenor v. Roman Cath. Church of Archdiocese of New Orleans, 

32 F.3d 953, 960 (5th Cir. 1994) (applying Mississippi law and affirming 

summary judgment in favor of church on claims arising out of priest’s acts 

of sexual abuse against minor; priest’s sexual acts “represent the 

paradigmatic pursuit of ‘some purpose unrelated to his master’s business.’”

(quoting Seedkem S., Inc. v. Lee, 391 So. 2d 990, 995 (Miss. 1980))); Bernie v. 

Cath. Diocese of Sioux Falls, 821 N.W.2d 232, 239, ¶ 13 (S.D. 2012) (affirming 

summary judgment in favor of diocese on claims arising out of alleged acts 

of sexual abuse committed against students by priests and teachers; “[I]n 

most cases, courts conclude that sexual abuse by priests represents such a 

far deviation from furthering a church or diocese’s business, and is such a 

clear-cut digression from an employee’s duty, that it is, as a matter of law, 

outside the scope of employment.”); N.H. v. Presbyterian Church (U.S.A.),

998 P.2d 592, 599, ¶ 17 (Okla. 1999) (affirming summary judgment in favor 

of religious organization on claims arising out of alleged acts of sexual 

abuse committed by minister against minors; “Ministers should not molest 

children. When they do, it is not a part of the minister’s duty nor customary 

within the business of the congregation.”); Iglesia Cristiana La Casa Del Senor, 
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Opinion of the Court

13

Inc. v. L.M., 783 So. 2d 353, 358 (Fla. Dist. Ct. App. 2001) (reversing jury 

verdict against church on claims arising out of minister’s sexual assault of 

16-year-old parishioner; “[A]s a matter of law,” church “cannot be held 

vicariously liable” because minister “was not engaging in authorized acts 

or serving the interests of the [c]hurch . . . on the day he raped her.”); cf. Doe 

v. Dickenson, No. CV-07-1998-PHX-GMS, 2008 WL 4933964 at *7 (D. Ariz. 

Nov. 14, 2008) (order granting in part and denying in part motions to 

dismiss and for summary judgment) (“[C]ases from other jurisdictions . . . 

are virtually unanimous in holding that a school employee does not act 

within the scope of employment by molesting a child.”).

¶38 Contrary to this “virtually unanimous” majority rule, some 

courts have determined that priests or ministers may be acting within the 

scope of their employment when using their employer-granted authority to 

engage in tortious misconduct. E.g., Schmidt v. Archdiocese of Portland in Or., 

234 P.3d 990, 993 (Or. Ct. App. 2010) (determining there was evidence from 

which a jury could find that a priest’s sexual abuse of a student was within 

the scope of his employment, in part due to the priest’s authority over the 

student); Mullen v. Horton, 700 A.2d 1377, 1381 (Conn. App. Ct. 1997) (“[A] 

trier of fact could reasonably find that the sexual relations between [the 

priest] and the plaintiff directly grew out of, and were the immediate and 

proximate results of, the church sanctioned counseling sessions.”), overruled 

in part by Cefaratti v. Aranow, 141 A.3d 752 (Conn. 2016).

¶39 Doe also relies heavily on State v. Schallock, 189 Ariz. 250 

(1997), wherein the Arizona Supreme Court rejected a per se rule “that an

employer is never vicariously liable for an intentional tort” committed by 

an employee. Id. at 256. In Schallock, the court held that a manager’s sexual 

harassment of employees under his supervision could be considered within 

the manager’s course and scope of employment because the harassment 

was “incidental to” the manager’s authority to “hire and fire, promote and 

demote, [and] instruct and control” his subordinates. Id. at 257, 259, 262. 

Noting that the manager’s “egregious improprieties” occurred in the 

workplace and continued “for close to a decade,” the court further held “[a] 

jury might well choose not to believe” that the “acts were unauthorized . . . 

when the employer permitted them to occur and recur over [such] a long 

period at its place of business and during business hours.” Id. at 257-58.

¶40 Here, the record does not support embracing the minority 

rule or that Schallock precludes summary judgment. Schallock is narrowly 

applicable to cases involving longstanding abuse and harassment in the 

workplace by a manager with authority to “hire and fire, promote and 

demote, [and] instruct and control” subordinates the manager victimizes. 
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

14

Id. at 257. In such a case, a reasonable jury could find that the employer 

knew or should have known of the manager’s longstanding misconduct, 

and by doing nothing, condoned and implicitly authorized it. See id. at 257-

58. No such facts are present here. The Diocese Defendants lacked notice 

that Pecore posed a sexual danger to children, and therefore a reasonable

jury could not find they implicitly authorized Pecore’s abuse of Doe. See 

supra ¶¶ 28-29. We also decline Doe’s invitation to adopt the minority rule 

that priests or ministers may be acting within the scope of their employment 

when using their employer-granted authority to engage in tortious 

misconduct.

 C. House Bill 2466

¶41 Noting that the Legislature passed, and the Governor signed, 

House Bill 2466 in 2019, Doe argues that the purpose of this enactment was 

“to ensure that all adult victims of sexual abuse – both men and women –

would have a reasonable opportunity” to “seek redress” for the abuse to 

which they were subjected. The effect of this bill, Doe insists, “was to 

extend” the “vicarious-liability causes of action” of the kind he asserted 

here.

¶42 House Bill 2466 extended the statute of limitations for civil 

claims for sexual abuse of a child, allowing victims to bring claims up to the 

age of thirty. 2019 Ariz. Law, ch. 259, § 1 (H.B. 2466) (codified at A.R.S. § 12-

514). Section 3 of the bill also created a “lookback window” temporarily 

allowing victims over the age of thirty to bring claims against certain 

defendants between May 27, 2019, and December 31, 2020. Id. at § 3(A)-

(B).3 Contrary to Doe’s suggestion, House Bill 2466 did not create or expand 

any substantive causes of action, but merely extended the limitations period 

for certain claims. Because the superior court’s grant of summary judgment 

was not based on limitations grounds, House Bill 2466 is inapplicable.

¶43 Applying the majority rule, and considering the factors 

utilized in Arizona cases, reasonable jurors could not find Pecore’s conduct 

was within the course and scope of his employment with the Diocese 

Defendants. While there may be instances where the facts could support a 

finding that a clergy member committed sexual abuse or misconduct within 

3 Under § 3(C), claims could be brought against someone who did not 

perpetrate the abuse if the non-perpetrator “knew or otherwise had actual 

notice of any misconduct that creates an unreasonable risk of sexual 

conduct or sexual contact with a minor by an employee, a volunteer, a 

representative or an agent.”
DOE v. ROMAN CATHOLIC CHURCH, et al.

Opinion of the Court

15

the course and scope of his or her employment, no such evidence exists 

here. The superior court therefore properly granted the Diocese 

Defendants’ motion for summary judgment with respect to Doe’s vicarious 

liability claims.

CONCLUSION

¶44 We dismiss in part for lack of appellate jurisdiciton and affirm 

in part. Because the notice of appeal against the Salvatorians was untimely, 

we lack appellate jurisdiction and therefore dismiss the appeal against 

them. The Salvatorians request their attorneys’ fees under ARCAP 25 as a 

sanction for Doe’s “disregard of the untimeliness” of his appeal against 

them. Such an award is discretionary, Ariz. Dep’t of Revenue v. Gen. Motors 

Acceptance Corp., 188 Ariz. 441, 446 (App. 1996), and will only be imposed 

with “great reservation,” Ariz. Tax Rsch. Ass’n v. Dep’t of Revenue, 163 Ariz. 

255, 258 (1989) (quoting Molever v. Roush, 152 Ariz. 367, 375 (App. 1986)). 

We do not find Doe’s arguments in his appeal against the Salvatorians were

frivolous, nor filed solely for the purpose of delay. See ARCAP 25; see also 

Hoffman v. Greenberg, 159 Ariz. 377, 380 (App. 1988) (“The line between an 

appeal which has no merit and one which is frivolous is very fine, and we 

exercise our power to punish sparingly.”). We therefore decline to impose 

sanctions against Doe under ARCAP 25.

¶45 The Diocese Defendants do not request an award of fees. As 

the prevailing parties, the Diocese Defendants are entitled to their costs 

upon compliance with ARCAP 21. See A.R.S. § 12-341.