IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shane McGuire on behalf of :

Colby Neidig, :

Appellant :

:

v. :

: No. 141 C.D. 2020

City of Pittsburgh : Argued: February 9, 2021

BEFORE: HONORABLE ANNE E. COVEY, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY 

JUDGE COVEY FILED: March 10, 2021

Shane McGuire (McGuire), on behalf of Colby Neidig (Neidig),

appeals from the Allegheny County Common Pleas Court’s (trial court) January 3, 

2020 order denying McGuire’s Motion for Post-Trial Relief. There are six issues 

before this Court:1(1) whether the City of Pittsburgh (City) waived its argument that 

McGuire lacks standing; (2) if the City did not waive the standing issue, whether 

McGuire has standing; (3) whether a federal judicial determination that Neidig 

injured McGuire while acting under color of state law collaterally estopped the trial 

court from concluding that Neidig was not acting within the scope of his duties as a 

City police officer, which precluded indemnification; (4) whether the trial court 

erred when it precluded witness testimony, intervened in witness examination, and 

permitted the City to publish photographs of McGuire’s injuries to the jury; (5) 

whether the trial court improperly instructed the jury regarding the law governing

course and scope of employment; and (6) whether the trial court erred by denying 

indemnification where there had been no federal judicial determination that Neidig 

1 This Court has reordered and summarized McGuire’s issues for clarity.
2

committed willful misconduct, and permitting the City to present evidence and 

argument that Neidig engaged in willful misconduct. After review, this Court 

affirms.

On November 2, 2012, 16-year-old McGuire and a group of teenagers 

vandalized residences in McGuire’s neighborhood. McGuire and his friends went 

to Neidig’s home, smashed pumpkins and stacked bricks in an area close to the front 

door. Neidig, his wife and child arrived home while McGuire and his friends were 

still at the property. While the Neidigs took groceries into their house, McGuire and 

his friends observed the Neidigs’ reaction to the vandalism. Thereafter, McGuire 

banged on the Neidigs’ front door and then attempted to flee, but stumbled and fell 

over the stacked bricks. Upon hearing the banging, Neidig’s wife screamed and 

Neidig observed McGuire trying to flee. Neidig gave chase and ultimately caught 

McGuire approximately one-half mile away, at which time Neidig knocked McGuire 

down and punched him in the face. At that time, Neidig was not wearing his police

uniform and he did not identify himself to McGuire as a police officer. Neidig called 

911 and restrained McGuire until City police officer David Blatt (Officer Blatt) 

arrived. 

On November 7, 2014, McGuire filed an action in federal district court2

(Federal Court Action) against Neidig in his individual capacity as a police officer, 

Officer Blatt, and the City, asserting counts of, inter alia, use of excessive force in 

violation of Section 1983 of the United States Code, 42 U.S.C. § 1983 (Section 

1983), and state law assault and battery claims. On November 3, 2016, the federal 

district court granted summary judgment in Officer Blatt’s and the City’s favor, and 

dismissed them from the case. On March 2, 2017, after a jury trial, judgment was 

entered in McGuire’s favor and against Neidig, finding a violation of McGuire’s 

2 McGuire v. Neidig (W.D. Pa. No. 2:14-cv-01531).
3

constitutional rights under Section 1983 and awarding McGuire damages for assault 

and battery. The jury specifically concluded that Neidig acted under color of state 

law when he injured McGuire. The jury awarded $75,000.00 in damages for 

economic loss, physical and/or emotional pain, suffering, inconvenience, mental 

anguish or loss of enjoyment of life. The jury also awarded $50,093.21 in 

compensatory damages. The awards were molded into one award of $75,000.00 on 

the civil rights violation. The federal district court awarded McGuire attorney’s fees 

in the amount of $160,575.00, and molded the total award to $235,575.00.

On June 12, 2017, Neidig assigned to McGuire “his entire right to bring 

legal action against the [City] for indemnity under the Political Subdivision Tort 

Claims Act, [42 Pa.C.S. §§ 8541-8542 (Tort Claims Act),] or under any other theory, 

for the [City’s] failure to indemnify [Neidig] from the judgment entered against him 

in [the Federal Court Action.]” Reproduced Record (R.R.) at 11a.

On July 7, 2017, McGuire filed the instant action for declaratory 

judgment in the trial court, alleging that the City failed to comply with its statutory 

obligations under the Tort Claims Act to indemnify Neidig following the federal 

district court’s award. On November 21, 2017, McGuire filed a summary judgment 

motion, arguing that the federal jury specifically and affirmatively answered that 

Neidig was acting under color of state law at the time he assaulted McGuire, and,

thus, the City was obligated to pay the federal jury award. On March 8, 2018, the 

trial court denied McGuire’s motion. The trial court held a jury trial from August 

12, 2019 to August 15, 2019, at the conclusion of which the jury found in the City’s 

favor and against McGuire, concluding that Neidig had not acted within the scope 

of his duties when he struck McGuire. The jury did not reach a decision on the 

City’s alternative argument that, had Neidig been acting in the scope of his 

employment, his conduct would have amounted to willful misconduct, and the City 

would have no duty to indemnify him. McGuire and the City filed motions for post-
4

trial relief. On January 3, 2020, the trial court issued its Memorandum Opinion and 

Order denying the post-trial motions (Trial Court Opinion). 

McGuire appealed to this Court on February 3, 2020.3 On May 21,

2020, the trial court issued its Amended Statement in Lieu of Opinion, wherein it 

adopted its January 3, 2020 Trial Court Opinion. On August 28, 2020, McGuire 

filed his brief with this Court. On November 20, 2020, the City filed its brief with

this Court, arguing, inter alia, that McGuire lacks standing to pursue indemnification 

because he is not a municipal employee with rights under the Tort Claims Act. On 

December 16, 2020, McGuire filed an Application for Motion to Strike Portions of 

Appellee’s Brief (Application to Strike), alleging therein that the City had waived 

its argument that McGuire lacked standing. On December 22, 2020, McGuire filed 

his reply brief. On December 30, 2020, the City filed its Answer to the Application 

to Strike. On January 4, 2021, this Court directed the Application to Strike to be 

decided with the merits of McGuire’s appeal.

I. Application to Strike

This Court first addresses McGuire’s Application to Strike, wherein 

McGuire contends that the City waived its argument that he lacks standing, and,

thus, that portion of the City’s brief should be stricken. 

McGuire contends:

Prior to asserting the ‘lack of standing’ argument in [the 

City’s] Brief, [the City] did not assert ‘lack of standing’ as 

an affirmative defense to [McGuire’s] claims; such 

defense was not raised in [the City’s] answer and new 

matter to [McGuire’s] complaint for declaratory 

3

“This Court’s standard of review of a trial court’s denial of a motion for post-trial relief 

is limited to a determination of whether the trial court abused its discretion or committed an error 

of law.” Irey v. Dep’t of Transp., 72 A.3d 762, 770 n.8 (Pa. Cmwlth. 2013).
5

judgment; (R.[R. at] 0087a-[]0095a); lack of standing was 

not raised by [the City] in response to [McGuire’s] motion 

for summary judgment ([Pennsylvania Rule of Appellate 

Procedure (Rule)] 123 App[.] 1-34); the City . . . did not 

assert lack of standing in its Pretrial Statement (R.[R. at] 

0110a-[]0120a), or [in] its Amended Pretrial Statement 

([]R.[R. at] 0129a-[]0139a).

Application to Strike at 2. 

“A defendant timely objects to a plaintiff’s lack of capacity to sue if the 

defendant raises this issue in preliminary objections or in its answer to the 

complaint.” Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 257 (Pa. Super. 

2015) (emphasis omitted). The City did not file preliminary objections or raise the 

issue of McGuire’s standing in new matter in its answer to McGuire’s complaint. 

However, notwithstanding McGuire’s assertion to the contrary, the record reflects 

that the City did raise the issue of McGuire’s standing before the trial court. On 

August 12, 2019, the first day of trial, the City filed with the trial court a Trial 

Memorandum on Invalid, Ineffective Assignment of Indemnification Rights 

Pursuant to the Political Subdivision Tort Claims Act (Trial Memorandum). See

Original Record (O.R.), Item No. 48. 

In the Trial Memorandum, the City asserted:

By attempting to assign his right to have his conduct 

reviewed in accordance with [the Tort Claims Act’s] 

standards, Neidig has removed himself from this dispute.

Neidig no longer has skin in this game. Instead, he and 

McGuire have agreed for McGuire to face the jury with 

the request that tax[]payer dollars pay for McGuire’s 

injuries. While the Court consistently upholds public 

employee rights to indemnification, . . . nothing in the 

express language of the [Tort Claims Act] supports 

reading into it a right for [] Neidig to assign his personal 

indemnification rights bestowed upon him by the 

Legislature. . . .

. . . .
6

In order to have standing to pursue this 

indemnification claim against the City, McGuire, as a 

non-employee, would need to be able to receive a valid, 

effective assignment. However, even if the possibility of

assignment of [Tort Claims Act] indemnification rights 

could be entertained, it would offend the public policy of 

this Commonwealth. Entertaining a non-employee’s 

pursuit of indemnification would be prejudicial to 

tax[]payer interests.

Trial Memorandum at 4-5, O.R. Item No. 48 (emphasis added; citation and footnotes

omitted). 

Further, on August 14, 2019, during the trial, the City moved for 

compulsory nonsuit (Nonsuit Motion), arguing:

Your Honor, there are essentially two issues that the City

presents in its [N]onsuit [Motion]. The first is regarding 

an assignment and the lack of standing on behalf of 

[McGuire] to bring this action. Standing is a 

preliminary matter that must be proven in order to have a

right to present [McGuire’s] case[-]in[-]chief here today. 

[McGuire has] failed to present evidence of an assignment 

of the right of indemnification from [Neidig] to [McGuire]

which would substantiate [McGuire’s] right to bring this 

action for indemnity on [] Neidig’s behalf. Therefore, []

McGuire lacks standing to bring this action . . . ab initio.

To the extent that there is an assignment, Your Honor, the 

City contends that that assignment is void ab initio. The 

right to indemnification under the [Tort Claims Act] is a

right that is granted solely to employees of local agencies.

. . . .

Because [McGuire] is not a [City] employee, he cannot be 

assigned the right of [Neidig] to bring this action.

R.R. at 1103a-1104a (emphasis added).

4,5

 

4 The trial court denied the Nonsuit Motion. See R.R. at 1110a.

5 The City raised the issue again in its post-trial motion. 
7

Importantly, in response, McGuire’s counsel did not argue waiver, but 

instead asserted: “Regarding evidence of assignment, there was testimony -- I 

believe it was elicited from the [City] -- that the claim was, in fact, [as]signed; the 

claim for indemnification was, in fact, [as]signed from [Neidig] to [McGuire].” Id. 

at 1109a. 

The law is well-established that

[w]hile a party has a duty to preserve an 

issue at every stage of a proceeding, he 

or she also must comply with the 

general rule to raise an issue at the 

earliest opportunity. Renna v. Dep’t of 

Transp., Bureau of Driver Licensing, 

762 A.2d 785, 788 (Pa. Cmwlth. 2000) 

(holding failure to raise issue during 

trial court’s hearing constituted waiver).

Campbell v. Dep’t of Transp., Bureau of 

Driver Licensing, 86 A.3d 344, 349 (Pa. 

Cmwlth. 2014) (emphasis added)[.] 

City of Phila. v. Rivera, 171 A.3d 1, 6 (Pa. Cmwlth. 2017) 

(emphasis omitted). Further, ‘[Pennsylvania Rule of 

Appellate Procedure] 302(a) provides: ‘Issues not raised 

in the lower court are waived and cannot be raised for the 

first time on appeal.’’ In re RHA Pa. Nursing Homes

Health & Rehab. Residence, 747 A.2d 1257, 1260 (Pa. 

Cmwlth. 2000).

In Re Petition to Set Aside Upset Tax Sale, 218 A.3d 995, 998 (Pa. Cmwlth. 2019). 

Because McGuire did not argue to the trial court that the City’s failure to raise the 

standing issue in preliminary objections or new matter constituted waiver, McGuire 

waived that issue and may not now argue it before this Court. 

McGuire also asserts that “[the City’s] ‘lack of standing’ argument does 

not appear in either [McGuire’s] statement of issues and/or the [City’s] 

counterstatement of those issues.” Application to Strike at 1. 
8

Rule 2112 provides, in relevant part:

The brief of the appellee, except as otherwise prescribed 

by these rules, need contain only a summary of 

argument and the complete argument for appellee, and 

may also include counter-statements of any of the matters 

required in the appellant’s brief as stated in [Rule]

2111(a). Unless the appellee does so, or the brief of the 

appellee otherwise challenges the matters set forth in the 

appellant’s brief, it will be assumed the appellee is 

satisfied with them, or with such parts of them as remain 

unchallenged.

Pa.R.A.P. 2112 (emphasis added). Accordingly, unlike an appellant, as the 

prevailing party, the City was not required to include in its brief a counterstatement 

of issues, and was permitted to address the issue in the body of its brief. 

Further, the City did not waive the issue by failing to file a cross-appeal. 

The Pennsylvania Supreme Court has explained:

[Rule] 501 provides, ‘any party who is aggrieved by an 

appealable order . . . may appeal therefrom.’ Pa.R.A.P. 

501 (emphasis added). The Note to Rule 511 further 

states, ‘An appellee should not be required to file a cross[-

]appeal because the [c]ourt below ruled against it on an 

issue, as long as the judgment granted appellee the relief it 

sought.’ [Rule] 511 note (citation omitted). 

‘Pennsylvania case law also recognizes that a party 

adversely affected by earlier rulings in a case is not 

required to file a protective cross-appeal if that same party 

ultimately wins a judgment in its favor; the winner is not 

an ‘aggrieved party.’’ Basile v. H & R Block, Inc., 973 

A.2d 417, 421 (Pa. 2009) (citation omitted) (emphasis in 

original). Moreover, several Justices of this Court have 

gone a step further and suggested such appeals should not 

be permitted. See id.[] at 424 (Saylor, J., concurring) 

(footnote omitted) (asserting ‘[protective] cross-appeals 

generally should not be permitted’ given that ‘the 

collective burden of screening and addressing such crossappeals may outweigh the benefits from the opportunity 

for an appellate court to advance the resolution of the 

litigation in individual cases’); id.[] at 426-27 (Baer, J., 

concurring) (writing ‘separately to second Justice Saylor’s 
9

inclinations to deem protective cross-appeals 

impermissible’ because ‘refusing to hear [them] will 

streamline cases on appeal and prevent prevailing parties 

from deluging the courts with unnecessary protective 

cross-appeals[,]’ and noting such practice would 

‘eliminate[] the question of whether a non-aggrieved party 

filing a protective cross-appeal must raise every potential 

appealable issue for fear of waiver’).

Lebanon Valley Farmers Bank v. Commonwealth, 83 A.3d 107, 112 (Pa. 2013). 

Here, as the prevailing party, the City was not required to file a cross-appeal. For 

these reasons, the Application to Strike is denied.

II. Standing

Having concluded that the City did not waive its argument challenging 

McGuire’s standing, this Court now addresses the standing issue on its merits. 

Initially,

[i]n Pennsylvania, the doctrine of standing . . . is a 

prudential, judicially created principle designed to 

winnow out litigants who [sic] have no direct interest in a 

judicial matter. For standing to exist, the underlying 

controversy must be real and concrete, such that the party 

initiating the legal action has, in fact, been ‘aggrieved.’

Pittsburgh Palisades Park, LLC v. Commonwealth, . . . 

888 A.2d 655, 659 ([Pa.] 2005). As this Court explained 

in William Penn Parking Garage[, Inc. v. City of 

Pittsburgh, 346 A.2d 269 (Pa. 1975)], ‘the core concept 

[of standing] is that a person who is not adversely affected 

in any way by the matter he seeks to challenge is not 

‘aggrieved’ thereby and has no standing to obtain a 

judicial resolution to his challenge.’ [William Penn,] 346 

A.2d at 280-81. A party is aggrieved for purposes of 

establishing standing when the party has a ‘substantial, 

direct and immediate interest’ in the outcome of litigation. 

Johnson[ v. Am. Standard, 8 A.3d 318,] 329 [(Pa. 2010)] 

(quoting Fumo v. City of Phila[.], . . . 972 A.2d 487, 496 

([Pa.] 2009)). A party’s interest is substantial when it 

surpasses the interest of all citizens in procuring obedience 

to the law; it is direct when the asserted violation shares a 
10

causal connection with the alleged harm; finally, a party’s 

interest is immediate when the causal connection with the 

alleged harm is neither remote nor speculative. Id.

Thus, while the purpose of the Declaratory Judgment[s]

Act, 42 Pa.C.S. §[§] 7531[-7541], is to ‘settle and to afford 

relief from uncertainty and insecurity with respect to 

rights, status, and other legal relations, and is to be 

liberally construed and administered,’ the availability of 

declaratory relief is limited by certain justiciability 

concerns. 42 Pa.C.S. § 7541(a). In order to sustain an 

action under the Declaratory Judgment[s] Act, a plaintiff 

must allege an interest which is direct, substantial and 

immediate, and must demonstrate the existence of a real 

or actual controversy, as the courts of this Commonwealth 

are generally proscribed from rendering decisions in the 

abstract or issuing purely advisory opinions. 

Off. of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014) (citation omitted).

Here, the City asserts that McGuire lacks standing because nothing in 

the Tort Claims Act authorized Neidig to assign his indemnification rights to 

McGuire, and, thus, the assignment is invalid. McGuire retorts that nothing in the 

Tort Claims Act prohibited Neidig from assigning to McGuire his indemnification 

rights thereunder and, as assignee, McGuire is directly aggrieved by the City’s 

failure to indemnify.

Section 8548(a) of the Tort Claims Act provides:

When an action is brought against an employee of a local 

agency for damages on account of an injury to a person or 

property, and he has given timely prior written notice to 

the local agency, and it is judicially determined that an act 

of the employee caused the injury and such act was, or that 

the employee in good faith reasonably believed that such 

act was, within the scope of his office or duties, the local 

agency shall indemnify the employee for the payment of 

any judgment on the suit.

42 Pa.C.S. § 8548(a). Nothing in the Tort Claims Act expressly prohibits, authorizes 

or addresses the assignment of an employee’s indemnification right thereunder.
11

The City acknowledges that “[n]either published nor unpublished 

decisions in the Commonwealth address the propriety of a public employee 

assigning his/her indemnification rights.” City Br. at 13-14 (footnote omitted). 

Notwithstanding, a factually similar federal district court case provides some 

insight.6 In Best v. Keenan (E.D. Pa. No. 03-5651, filed October 14, 2004), 2004 

U.S. Dist. LEXIS 27000 (Best I), the plaintiff filed a complaint against the City of 

Philadelphia (Philadelphia) and several police officers alleging excessive force. 

Specifically, the plaintiff similarly alleged a violation of Section 1983 and state law 

assault and battery claims. After Philadelphia and several police officers were 

dismissed from the action, the jury returned a verdict against the sole remaining 

police officer defendant (Officer Keenan). Philadelphia refused to pay any judgment 

on Officer Keenan’s behalf. Thereafter, the plaintiff moved to compel Philadelphia 

to indemnify Officer Keenan and pay the judgment and attorney’s fees on Officer 

Keenan’s behalf. 

The Best I Court reasoned:

Nothing in [the] Tort Claims Act suggests that a plaintiff 

in an underlying cause of action may directly seek 

indemnification from the defendant’s employer. The 

Pennsylvania Supreme Court has held that the purpose of 

the indemnification provisions ‘. . . is to permit local 

agency employees to perform their ‘official duties’

without fear of personal liability, whether pursuant to state 

or federal law, so long as the conduct is performed during 

the course of their employment.’ Wiehagen [v. Borough 

of N. Braddock], . . . 594 A.2d 303, 306 (Pa. 1991). Such 

language is indicative of the statutory intent to protect the 

employee, not the injured plaintiffs. Indeed, at least two 

courts from this Circuit have held that the Tort Claims Act 

‘is not meant to provide a cause of action for a plaintiff in 

an underlying action.’ Johnson v. City of Erie, Pa., 834 F. 

6 Although federal district court decisions are not binding, they may be cited as persuasive 

authority. Mannella ex rel. Mannella v. Port Auth. of Allegheny Cnty., 982 A.2d 130 (Pa. Cmwlth. 

2009).
12

Supp. 873, 877 (W.D. Pa. 1993); see also Talley by Talley 

v. Trautman[ (E.D. Pa. No. 96-5190, filed March 13, 

1997), 1997 U.S. Dist. 3279, at *17-18] (‘It does not 

follow, however, [] that a governmental agency may have 

to indemnify one of its employees for intentional torts 

committed in the course of his duties to that the 

governmental agency therefore becomes directly liable to 

the plaintiff under the doctrine of respondeat superior

under a different section of the Act.’). In turn, our research 

has not revealed, and plaintiff has not cited, any case 

allowing a plaintiff in an underlying cause of action to 

pursue an indemnification action under [Section 8548 of 

the Tort Claims Act].

In light of this jurisprudence, it remains abundantly clear 

that plaintiff does not have any legal entitlement to compel 

[Philadelphia] to satisfy the judgment against Officer 

Keenan. [Philadelphia] was dismissed as a defendant from 

the lawsuit. Thereafter, the trial proceeded only against 

individual officers, with Officer Keenan remaining as the 

sole defendant by the time the case went to the jury for 

deliberations. The jury reached a verdict against Officer 

Keenan for acts committed in the scope of his duties as a 

police officer and this Court entered a judgment against 

him for compensatory damages, punitive damages and 

plaintiff’s attorney’s fees and costs. Individually, he 

remains responsible for this judgment. While the officer 

is now entitled to bring an indemnification action

against his employer under the Tort Claims Act, plaintiff 

has no standing to pursue such a claim.

Best I, 2004 U.S. Dist. LEXIS 27000, at *5-6 (emphasis added; footnotes omitted). 

Thereafter, Officer Keenan assigned to the plaintiff all monies due Officer Keenan

from Philadelphia under the Tort Claims Act. The plaintiff then renewed his motion 

to compel Philadelphia to pay the judgment and attorney’s fees. In a subsequent 

decision, the Court explained:

Armed with assignment of rights from Officer Keenan, 

plaintiff, in the case at bar, now seeks to compel 

[Philadelphia] to indemnify Officer Keenan, under 

[Section 8548 of the Tort Claims Act], for the amount of 

the judgment, plus attorney’[s] fees and costs, rendered 
13

against him in the above-captioned action. ‘It is clear that 

an action under the Tort Claims Act, which mandates 

specific procedures for indemnification by 

municipalities for judgments rendered against public 

employees, is the proper recourse for a public employee 

faced with such judgment when the public body is not 

named in the suit.’ Retenauer v. Flaherty, . . . 642 A.2d 

587, 594 (Pa. C[mwlth]. 1994)[.]

Best v. Keenan (E.D. Pa. No. 03-5651, filed March 12, 2005), 2005 U.S. Dist. LEXIS 

3960, at *5-6 (Best II). The Best II Court concluded:

Such an action, however, lacks the required legal and 

factual interdependence necessary for this Court to invoke 

its ancillary jurisdiction. The underlying action proceeded 

under a [Section] 1983 claim of excessive force, with the 

Court exercising its supplemental jurisdiction over the 

state law claims of assault and battery. See [Section 1367 

of the United States Code,] 28 U.S.C. § 1367. Although 

[] Philadelphia was originally a party to the action and 

defended Officer Keenan throughout the course of this 

matter, it had been voluntarily dismissed as a party prior 

to the start of trial. The Court thereafter entered judgment 

against only Officer Keenan. The motion now pursued by 

plaintiff is not simply an effort to collect on that judgment, 

but rather an attempt to establish liability, under state law, 

on the part of [] Philadelphia. This determination turns on 

an interpretation of the indemnification provision of the 

state Tort Claims Act - a theory of liability not present in 

the initial action.

Accordingly, plaintiff now has several options available to 

him. He may move in this Court, under the Federal Rules 

of Civil Procedure, to enforce the judgment against 

Officer Keenan, without concern for [Philadelphia’s] 

liability. Alternatively, he may use the assignment of 

rights given to him by Officer Keenan and bring a state 

court action, under [Section 8548 of the Tort Claims 

Act], against [] Philadelphia. Under well-established 

federal jurisprudence, [] he may not, however, pursue 

indemnification from [Philadelphia] in federal court.
14

Best II, 2005 U.S. Dist. LEXIS 3960, at *7-8 (emphasis added). Thus, the plaintiff

was afforded the opportunity to pursue a state court action.

7

Here, the City argues that exceptions to governmental immunity set 

forth in the Tort Claims Act are strictly construed and, since the Tort Claims Act 

permits indemnification for municipal employees, a non-employee may not seek 

indemnification. It further maintains that Section 8548(a) of the Tort Claims Act’s 

plain language clearly provides that only a local agency employee may seek 

indemnification thereunder. Thus, consistent with the interpretation in Best I, the 

federal district court found that the plaintiff did not have any legal entitlement to 

require Philadelphia to satisfy the judgment against Officer Keenan. 

Notwithstanding the City’s argument, “[w]here an assignment is effective, the 

assignee stands in the shoes of the assignor and assumes all of his rights.” Smith 

v. Cumberland Grp., Ltd., 687 A.2d 1167, 1172 (Pa. Super. 1997) (emphasis added). 

There is nothing in the Tort Claims Act prohibiting an assignment of rights. 

Accordingly, when the plaintiff acquired an assignment of rights from Officer 

Keenan, the Best II Court acknowledged the plaintiff’s right to pursue 

indemnification, since, having acquired an assignment, the plaintiff was merely 

exercising Officer Keenan’s rights to indemnification as a local agency employee.

In the instant matter, McGuire obtained a judgment against Neidig for 

conduct that occurred while Neidig acted under color of state law. Neidig thereafter 

7 Despite the federal court’s description of the assignment of rights granted to Best, Officer 

Keenan sought indemnification from Philadelphia in state court. See Keenan v. City of Phila., 

936 A.2d 566 (Pa. Cmwlth. 2007). On appeal from the lower court’s denial of indemnification, 

this Court described the assignment differently, explaining: “Best’s attorney and [Officer] Keenan 

then entered into an agreement to forgive his debt to Best and assign Best’s attorney any amount 

he received following a claim for indemnification from [Philadelphia].” Id. at 568 n.5. Ultimately, 

this Court upheld the trial court’s denial of indemnification, because the federal jury found Officer 

Keenan had engaged in willful misconduct. 
15

assigned his indemnification rights under the Tort Claims Act to McGuire in 

exchange for McGuire’s agreement not to further seek to collect the judgment from 

Neidig. Permitting McGuire to pursue Neidig’s indemnification rights from the City 

in exchange for McGuire’s release of Neidig’s personal liability to McGuire is 

consistent with the indemnification provision’s purpose “to permit local agency 

employees to perform their official duties without fear of personal liability, whether 

pursuant to state or federal law, so long as the conduct is performed during the course 

of their employment.” Wiehagen, 594 A.2d at 306. Standing in Neidig’s shoes, 

McGuire is aggrieved by the City’s failure to indemnify Neidig. Accordingly, 

because this Court concludes that McGuire has standing to pursue indemnification 

on Neidig’s behalf, we will address the substantive issues McGuire raises on appeal.

III. Collateral Estoppel

McGuire first contends that the Federal Court Action determination that 

Neidig injured McGuire while acting under color of state law collaterally estopped 

the City from litigating the issue of whether Neidig was acting within the scope of 

his office or duties as a City police officer. “Generally, collateral estoppel forecloses 

re-litigation of issues of fact or law in subsequent actions where” certain specific 

criteria are met. Pa. Bd. of Prob. & Parole v. Pa. Hum. Rels. Comm’n, 66 A.3d 390, 

395 (Pa. Cmwlth. 2013).

Collateral estoppel will only apply where: the issue is the 

same as in the prior litigation; the prior action resulted in 

a final judgment on the merits; the party against whom the 

doctrine is asserted was a party or in privity with a party 

to the prior action; and the party against whom the doctrine 

is asserted had a full and fair opportunity to litigate the 

issue in the prior action. In some renditions, courts add a 

fifth element, namely, that resolution of the issue in the 

prior proceeding was essential to the judgment. 
16

In re Coatesville Area Sch. Dist., ___ A.3d ___ (Pa. No. 7 MAP 2020, filed January

20, 2021), slip op. at 6 (citation omitted). “[A]ll [of the criteria] must be met[] in 

order to permit the doctrine of collateral estoppel to come into play.” In re Nocella, 

79 A.3d 766, 793 (Pa. Cmwlth. 2013), aff’d, 102 A.3d 422 (Pa. 2014).

The Pennsylvania Supreme Court has declared:

Section 8548 [of the Tort Claims Act] clearly and 

unambiguously provides that ‘the local agency shall 

indemnify the employee for the payment of any judgment’

in an action for injury to person or property brought 

against an employee where the employee was acting 

within the scope of his duties. [42 Pa.C.S. § 8548(a)

(e]mphasis added). Clearly, this section was intended to 

provide for indemnification for any judgment that may be 

rendered against an employee while acting within the 

scope of his employment.

Wiehagen, 594 A.2d at 305 (bold emphasis added). 

In Justice v. Lombardo, 208 A.3d 1057 (Pa. 2019), the Pennsylvania 

Supreme Court adopted the Restatement (Second) of Agency § 228(1) (Am. Law 

Inst. 1958) (Restatement) scope of employment definition in the context of sovereign 

immunity.8 Therein, the Justice Court explained:

Section 228 of the Restatement provides:

8 The Justice Court stated: 

We have long held that whether a particular act of an employee is 

within the scope of his employment is ordinarily a question of fact 

for the jury. We have explained that the only exception to this wellestablished rule is where neither the facts nor the inferences to be 

drawn from them are in dispute. In such a case, the court may decide 

the scope of employment question as a matter of law. However, 

where more than one inference may be drawn from the facts, the 

issue of whether an employee was acting within the scope of 

employment is for the jury.

Justice, 208 A.3d at 1068 (citations omitted).
17

(1) Conduct of [an employee] 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 [employer;] and

(d) if force is intentionally used by the 

[employee] against another, the use of force 

is not unexpectable by the [employer].

Restatement . . . § 228(1) []. On the other hand, an 

employee’s conduct ‘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.’ Id., § 228(2).

Subsequent sections of the Restatement provide additional 

criteria for assessing whether conduct falls within the 

scope of employment. See, e.g., id., §§ 229-31, 235. 

Section 229 [of the Restatement] provides that ‘to be 

within the scope of employment, conduct must be of the 

same general nature as that authorized, or incidental to that 

authorized.’ Id., § 229(1). It also enumerates ten ‘matters 

of fact’ to be considered in determining whether or not 

conduct, although unauthorized, is nevertheless so similar 

to or incidental to the conduct authorized that it is still 

within the scope of employment. Id., § 229(2). Pursuant 

to [S]ection 230 [of the Restatement], ‘an act, although 

forbidden, or done in a forbidden manner, may be within 

the scope of employment.’ Id., § 230. Section 231 [of the 

Restatement] provides that ‘an act may be within the scope 

of employment although consciously criminal or tortious.’ 

Id., § 231. Pursuant to [S]ection 235 [of the Restatement], 

‘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 employed.’

Id., § 235.

Justice, 208 A.3d at 1067 (footnote omitted).
18

In the Federal Court Action, the jury determined that Neidig acted 

under color of state law. “[T]o be under color of state law, the actor must have 

exercised ‘power possessed by virtue of state law and made possible only because 

the wrongdoer is clothed with the authority of state law.’” Frazier v. City of Phila.,

756 A.2d 80, 83 (Pa. Cmwlth. 2000) (quoting Costa v. Frye, 588 A.2d 97, 99 (Pa. 

Cmwlth. 1991)). 

McGuire argued to the trial court, and now argues to this Court, that 

since the jury’s finding was equivalent to a finding that Neidig acted within the scope 

of his employment, the first collateral estoppel requirement was met. McGuire 

asserted to the trial court that this Court in Tepper v. City of Philadelphia Board of 

Pensions and Retirement, 163 A.3d 475 (Pa. Cmwlth. 2017), treated the terms under 

color of state law and scope of employment as the same. In Tepper, this Court 

addressed whether an off-duty police officer convicted of murdering his neighbor, 

and found by a federal jury to have used deadly force while acting under color of 

state law, had engaged in malfeasance in office or employment under the City of 

Philadelphia Public Employees Retirement Code (Retirement Code),

9 which 

disqualified him from pension eligibility. On appeal, the trial court affirmed the 

Philadelphia Board of Pensions and Retirement’s (Pensions Board) decision that 

Tepper was collaterally estopped from asserting that he had not acted “in [his] office 

or employment” under the Retirement Code because the federal jury had found that 

Tepper had acted under color of state law. Tepper, 163 A.3d at 477 (emphasis 

added). On appeal, this Court concluded that “acting ‘under color of state law’ for 

purposes of Section 1983 has the same meaning as ‘in office or employment’ under 

9

“Section 22-1302(1)(a)(.5) of the Retirement Code provides that an employee shall not 

be entitled to retirement or other benefits or payments, except a return of the contribution paid, if 

he or she ‘pleads or is finally found guilty . . . of . . . [m]alfeasance in office or employment.’ 

Phila. Pub. Emps. Ret. Code, [Phila. Code] § 22-1302(1)(a)(.5).” Tepper, 163 A.3d at 477 n.1 

(emphasis added).
19

the Retirement Code [], where the jury found that Tepper acted ‘under color of state 

law’ in his official capacity as a police officer.” Tepper, 163 A.3d at 483.

In the instant matter, the trial court distinguished Tepper, explaining:

In Tepper, the jury accepted that Tepper exited his home, 

flashed his badge, and identified himself as a police 

officer. 

After hearing those facts, the jury found that Tepper acted 

‘under color of state law,’ in his official capacity as a 

police officer, under the definitions of that term and the 

guidelines set forth in the federal jury charge. The facts 

presented in this case are quite distinguishable; there was 

never the display of a badge or the announcement as a 

police officer, or any other indication that Neidig was a 

‘state actor.’ This Court finds these facts critical and

determinative to the jury’s finding and any comparison 

with Tepper [is] misplaced.

Trial Ct. Op. at 12-13 (citations omitted). This Court agrees, and also finds Tepper

inapposite in that Tepper involved the Retirement Code, and the relevant language 

therein did not use the term scope of employment, but rather addressed 

“[m]alfeasance in office or employment.” Tepper, 163 A.3d at 477 n.1 (quoting 

Phila. Pub. Emps. Ret. Code, § 22-1302(1)(a)(.5)).

In considering whether “the issue in the prior adjudication was identical 

to the one presented in the later action[,]” Pa. Bd. of Prob. & Parole, 66 A.3d at 395,

the trial court further contrasted the meaning of the phrase, under color of state law, 

with scope of employment as described in Justice, noting:

The United States Supreme Court has stated that acting 

‘under color of state law’ requires that a defendant in a 

Section 1983 action has exercised power ‘possessed by 

virtue of state law and made possible only because the 

wrongdoer is clothed with the authority of state law.’

[West v. Atkins,] 487 U.S. [42,] 49 [(1988)]. ‘If an 

individual is possessed of state authority and purports to 

act under that authority, his action is state action.’ Griffin 
20

v. State of Maryland, 378 U.S. 130, 135 ([]1964)[]

(emphasis added in original).

Trial Ct. Op. at 13. The trial court concluded:

This writer is unwilling to accept the issue decided in the 

prior case as identical to the one presented in the instant. 

This [trial c]ourt does not find that ‘under color of state 

law’ is synonymous with ‘acting within the scope of his 

employment[.’] This [trial c]ourt crafts jury instructions 

dozens of times throughout the course of every year; there 

has never been a time that legal counsel so freely offered 

to deem words or terms as synonymous or 

interchangeable. This [trial c]ourt routinely argues over 

the placement of commas, the placement of each particular 

instruction; and often in negligence actions where liability 

is admitted, the inclusion of the definition of the term

negligence.

It is contrary to all of this [trial c]ourt’s training and 

experience to patently ignore the clear language of the 

statutes and precedential holdings spanning nearly 100 

years of jurisprudence. It is also contrary to reason and 

law to apply the ‘close enough’ rationale that McGuire 

now asserts.

Trial Ct. Op. at 15.

Pennsylvania courts have not explicitly ruled on the interplay between 

the terms under color of state law and within the scope of employment in the context 

of indemnification under the Tort Claims Act.

10 But cf., Retenauer. To further 

examine whether the jury’s finding in the Federal Court Action that Neidig acted 

10 McGuire argues that Section 8548 of the Tort Claims Act “was intended to provide for 

indemnification for any judgment that may be rendered against an employee while acting within 

the scope of his employment . . . .” McGuire Br. at 14. McGuire relies on Wiehagen, wherein the 

Pennsylvania Supreme Court ordered that the Borough of North Braddock must indemnify a police 

officer for damages awarded in a federal action for violation of Section 1983, “because there is a 

judgment against [the police officer] arising from conduct within the scope of his employment[.]” 

Wiehagen, 594 A.2d at 306. 

Notably, the Pennsylvania Supreme Court in Wiehagen required indemnification because, 

unlike in the instant matter, the parties had explicitly stipulated in the federal court action that the 

police officer was acting within the scope of his duties when he struck the plaintiff.
21

under color of state law is equivalent to a finding that Neidig acted within the scope 

of employment, this Court looks to federal jurisprudence. 

The concepts of acting ‘under color of state law’ and 

acting ‘within the scope of employment[,]’ while 

comparable[,] are not the same. Compare Barna v. City 

of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994) (acting 

under color of law . . .)[,] with [Restatement] § 228.

Hickenbottom v. Nassan (W.D. Pa. No. 03-223, filed March 29, 2007), 2007 U.S. 

Dist. LEXIS 24336, at *139-40 (emphasis added); see also Davies v. Lackawanna 

Cnty. (M.D. Pa. No. 3:15-cv-1183, filed March 16, 2017), 2017 U.S. Dist. LEXIS 

38142; Wash.-Pope v. City of Phila., 979 F. Supp. 2d 544 (E.D. Pa. 2013); Spiker v. 

Allegheny Cnty. Bd. of Prob. & Parole, 920 F. Supp. 2d 580 (W.D. Pa. 2013), aff’d, 

553 F. App’x 275 (3d Cir. 2014) (The allegation that a probation officer acted under 

color of state law was not determinative with respect to whether the probation officer 

was acting within the scope of her employment.). 

In fact, federal courts have specifically held that a “determination that 

[a police officer] acted ‘within the scope of his office or employment’ does not 

inevitably flow from a concession that he acted ‘under color of’ Pennsylvania law.” 

Zion v. Nassan, 283 F.R.D. 247, 267-68 (W.D. Pa. 2012), aff’d, 556 F. App’x 103 

(3d Cir. 2014). “The actions of a state official may ‘constitute state action . . .’ even 

when they exceed the limits of the official’s authority.” Id. at 267. The Zion Court 

noted that “[t]he Pennsylvania courts have recognized that ‘an assault committed by 

an employee upon another person for personal reasons or in an outrageous manner

is not actuated by an intent to perform the business of the employer and, as such, is 

not within the scope of employment.’” Id. at 267 (bold emphasis added; italic 

emphasis omitted) (quoting Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493 

(Pa. Super. 1998)). Thus, in the context of federal jurisprudence, the determination 

in the instant Federal Court Action that Neidig acted under color of law does not 
22

dictate that Neidig acted within the scope of his employment. This Court finds the 

aforementioned federal jurisprudence persuasive and holds that the trial court 

properly concluded that the City was not collaterally estopped from asserting that 

Neidig acted beyond the scope of his employment when he injured McGuire. 

Having concluded that McGuire did not meet the first collateral estoppel

requirement, this Court need not address the other criteria.11

IV. Evidentiary Issues

McGuire also argues that the trial court erred when it precluded witness 

testimony, intervened in witness examination, and permitted the City to publish 

photographs of McGuire’s injuries to the jury. First, McGuire asserts that the trial 

court improperly permitted the City to elicit opinion testimony from the City’s Police 

Chief Scott Schubert (Chief Schubert) that Neidig was not acting as a City police 

officer when he injured McGuire, but prohibited McGuire from eliciting contrary

opinion testimony from McGuire’s witness, Fraternal Order of Police (FOP) 

President Robert Swartzwelder (Swartzwelder). 

Initially, “[t]he decision whether to admit or exclude the testimony of a 

witness is within the sound discretion of the trial court and will not be reversed 

absent an abuse of discretion.”

12

 Daddona v. Thind, 891 A.2d 786, 811 (Pa. Cmwlth. 

2006). “An abuse of discretion ‘is not merely an error of judgment, [but is a] 

judgment [that is] manifestly unreasonable, or the result of partiality, prejudice, bias 

11 Notwithstanding, McGuire did not demonstrate that it was necessary to the federal 

court’s ruling that it make a finding that Neidig acted within the scope of his employment to 

determine that Neidig was liable under Section 1983.

12 Further, “[t]he law is well-established that ‘[a] trial court is vested with wide discretion 

in deciding whether to allow the admission of expert testimony into evidence, and is not subject to 

reversal absent a clear abuse of discretion.’” In re Condemnation of Parcel ID No. 02-033-004 v. 

Lands of Tarlini, 185 A.3d 1177, 1182 (Pa. Cmwlth. 2018) (quoting Daddona v. Thind, 891 A.2d 

786, 805 (Pa. Cmwlth. 2006)).
23

or ill-will, as shown by the evidence or the record . . . .’” O’Layer McCready v. 

Dep’t of Cmty. & Econ. Dev., 204 A.3d 1009, 1018 n.6 (Pa. Cmwlth. 2019) (quoting 

Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934)).

At trial, McGuire called Chief Schubert as on cross-examination, 

questioning him, inter alia, about City police officers’ duties and inquiring whether 

Chief Schubert considered particular hypothetical conduct to be within the scope of 

such duties. See R.R. at 760a. On redirect examination, Chief Schubert specifically 

opined that Neidig was not acting within the scope of his employment when he 

injured McGuire. See R.R. at 793a-795a.

In his brief to this Court, McGuire inaccurately represents that “[t]he 

trial court permitted the [City] to elicit an opinion from [Chief Schubert][] that

[Neidig] was not acting as a [City] police officer when he injured McGuire [and 

that] McGuire objected to that opinion testimony on the grounds that [Chief] 

Schubert had not been qualified as an expert, but it was overruled.” McGuire Br. at 

31 (emphasis added). In support, McGuire cites to Reproduced Record pages 768a 

to 769a. However, upon review of the cited record, it is clear that McGuire’s 

objection was not to a question seeking to elicit an opinion from Chief Schubert 

pertaining to whether Neidig was acting as a police officer when he injured McGuire. 

Rather, McGuire’s objection addressed the following hypotheticals posed by 

counsel. 

Chief Schubert testified:

[City’s Counsel:] So if a call for vandalism came in and 

the officer is on [his] way to the vandalism call and on the 

way [he] get[s] another call that a burglary is in process, 

would it be reasonable for that officer to divert [his]

attention to the burglary?

[Chief Schubert:] Absolutely. And if [he] didn’t, a 

supervisor should be diverting [him].
24

[McGuire’s Counsel]: Objection, Your Honor. This 

whole line of questioning is hypotheticals. He hasn’t 

been qualified as an expert to testify, and I just object 

to the relevance of asking this witness all these 

hypotheticals.

THE COURT: Do you want to respond to that?

[City’s Counsel]: I do have a response. He was asked a 

number of hypothetical questions, and he is called to talk 

about the scope of employment. He’s also been

questioned a lot on the policies, and these are hypothetical 

questions that relate to the policies.

[McGuire’s Counsel]: He’s been asked on cross, which is 

permissible. On direct, leading him through hypothetical 

questions to get to a suggested answer is impermissible.

THE COURT: I’m going to allow the question. And 

[McGuire’s Counsel] is correct. You cannot lead.

[City’s Counsel]: Thank you.

R.R. at 768a-769a (emphasis added). Thus, McGuire voiced a general objection to 

the City’s counsel asking Chief Schubert hypotheticals. When the City’s counsel 

asked Chief Schubert whether Neidig acted within the scope of his employment, it 

was clearly not a hypothetical question. The City’s counsel inquired: 

Q. Was [] Neidig acting within the scope of his 

employment, in your view, when he took whatever actions 

and decisions that he took on November 2, 2012?

A. Are you asking me do I think he was acting as a police 

officer?

Q. A Pittsburgh police officer?

A. I do not.

R.R. at 793a.

13

 The City’s counsel concluded questioning Chief Schubert, asking:

13 McGuire’s counsel did not object to this question. It was not until after Chief Schubert 

was asked to explain why he did not believe Neidig was acting as a police officer when he injured 

McGuire, and Chief Schubert had answered, that McGuire’s counsel objected to that answersolely
25

Q. So based on the facts and circumstances, do you think 

what specifically happened on November 2, 2012, was 

within the scope and office of a [City] police officer?

A. I don’t believe he was acting as a [City] police officer 

at that time.

R.R. at 795a (emphasis added). McGuire’s Counsel did not object to this question. 

The law is well established that “‘[t]o preserve an issue for appeal, a litigant must

make a timely, specific objection at trial and must raise the issue [i]n post-trial 

motions.’ Issues not preserved for appellate review cannot be considered by this 

Court, even if the alleged error involves ‘a basic or fundamental error.’” City of 

Phila. v. DY Props., LLC, 223 A.3d 717, 722 (Pa. Cmwlth. 2019) (quoting Mun. 

Auth. of the Borough of Midland v. Ohioville Borough Mun. Auth., 108 A.3d 132, 

136-37 (Pa. Cmwlth. 2015) (original emphasis omitted)) (emphasis added). 

In addition, the Pennsylvania Superior Court has explained:

Pennsylvania Rule of Evidence 701, regarding ‘Opinion 

Testimony by Lay Witnesses’ provides,

If a witness is not testifying as an expert, 

testimony in the form of an opinion is limited 

to one that is:

(a) rationally based on the witness’s 

perception;

(b) helpful to clearly understanding the 

witness’s testimony or to determining a fact 

in issue; and

(c) not based on scientific, technical, or other 

specialized knowledge within the scope of 

[Pennsylvania] Rule [of Evidence] 702.

Pa.R.E. 701. ‘[T]echnical expertise does not ipso facto

convert a fact witness, who might explain how data was 

on the basis that the issue was resolved in federal court. See R.R. at 794a. Chief Schubert had 

already answered the question, and the City’s counsel continued questioning Chief Schubert 

without the trial court ruling on that objection.
26

gathered, into an expert witness, who renders an opinion

based on the data[.]’ Branham v. Rohm & Haas Co., . . . 

19 A.3d 1094, 1110 (Pa. Super. 2011). ‘Fact testimony 

may include opinion or inferences so long as those 

opinions or inferences are rationally based on the 

witness’s perceptions and helpful to a clear understanding 

of his or her testimony.’ Brady by Brady v. Ballay, 704 

A.2d 1076, 1082 (Pa. Super. 1997).

Commonwealth v. T.B., 232 A.3d 915, 919 (Pa. Super. 2020).

Here, McGuire called Chief Schubert as a fact witness as on crossexamination to support McGuire’s contention that Neidig acted within the scope of 

his employment. Chief Schubert oversees police officers’ job performance and can 

impose discipline when police officers violate their duties. On redirect examination,

Chief Schubert offered a specific opinion that Neidig had acted outside the scope of 

his duties when he injured McGuire. Consistent with Pennsylvania Rule of Evidence 

701, Chief Schubert’s opinion was rationally based on his perceptions and was 

helpful to the jury in determining the City’s expectations of a police officer in 

Neidig’s situation. See Pa.R.E. 701(a), (b). It was “not based on scientific, technical, 

or other specialized knowledge . . . .” Pa.R.E. 701(c). Thus, even if McGuire had 

timely and specifically objected to Chief Schubert’s testimony, this Court would 

conclude that Schubert’s testimony was consistent with Pennsylvania Rule of 

Evidence 701. 

McGuire further argues that the trial court should have permitted him 

to present Swartzwelder’s opinion testimony in response to Chief Schubert’s

testimony, and erroneously sustained the City’s objection thereto. Importantly, 

McGuire called Chief Schubert as a fact witness as on cross-examination and 

questioned him generally about the scope of police officers’ duties. On redirect 

examination, Chief Schubert expressed an opinion, without objection, about whether 

Neidig’s conduct was within the scope of his duties – police officer duties that Chief 

Schubert regularly oversaw. 
27

In contrast, McGuire also called Swartzwelder as a fact witness. 

McGuire’s counsel explained:

[] Swartzwelder, he’s testifying in his capacity as the 

president of the FOP. He is intimately familiar with [City]

policies and procedures. He’s intimately familiar with the 

training that the officers receive. 

He’s written a bunch of the training curriculum, he’s been 

a full[-]time training officer for the last two years, and he’s

also intimately familiar with the expectations of [City]

police officers. He can testify to all of that, and that’s all 

directly relevant to the scope of duties of a [City] police 

officer.

R.R. at 1013a-1014a. A lengthy exchange between counsel and the trial court 

ensued:

[McGuire’s Counsel]: Okay. The purpose of

[Swartzwelder’s] testimony is for him to testify about the 

disciplinary procedures for [City] Police; the scope of 

duties of a [City] police officer, what he is, what [he/she 

is] not expected to do; what the policies mean from the 

perspective of a [City] police officer; and whether or not 

Neidig was acting as a police officer in accordance with 

those policies when the interaction with McGuire took 

place.

THE COURT: So you’re submitting [Swartzwelder] as an 

expert witness?

[McGuire’s Counsel]: I am not. He is a fact witness 

regarding [City] policies and procedures. It’s very much

the same as [Chief] Schubert was testifying about [City]

policies and procedures. 

They got to hear from [the] management side about, you 

know, what are the expectation[s] of [City] police officers, 

and he offered an opinion on whether or not [] Neidig was 

acting as a [City] police officer and was acting within the 

scope of his duties as a [City] police officer. 

We are entitled then to get the FOP’s perspective. They 

also have a lot of -- Swartzwelder also has a lot of 
28

knowledge and information about this, and we’re entitled 

to put that into the record, as well, so the jury can consider 

both sides.

. . . .

THE COURT: Was [Neidig] suspended?

[McGuire’s Counsel]: No, but he should -- but --

THE COURT: He should have been?

[McGuire’s Counsel]: Well, if he was acting outside of the 

scope of his duties, if the City thought that, he should have 

been. And it’s up to the jury to decide bias and credibility 

of the witnesses.

THE COURT: I’m ruling I don’t want anything about 

penalty proceedings here because he wasn’t penalized.

. . . .

[City’s Counsel]: . . . . The City would also object to 

[Swartzwelder] testifying as to his opinion with regards to 

[] Neidig and his actions and whether they comport with

the policies and whether they were appropriate actions. 

That’s expert testimony. Swartzwelder has not offered a

report, in accordance with the rules. He cannot come here 

and testify as an expert witness today.

[McGuire’s Counsel]: Your Honor, [Chief] Schubert 

offered exactly the same opinion.

THE COURT: Wasn’t he your witness?

[McGuire’s Counsel]: On cross.

THE COURT: Yeah. Well, you offered him. You’re 

bound by that.

[McGuire’s Counsel]: We didn’t offer him as an expert.

THE COURT: You called him.

[McGuire’s Counsel]: But we didn’t offer him as an 

expert.
29

THE COURT: It doesn’t matter. You called him. You’re 

bound by what he says.

[McGuire’ Counsel]: But we called him as on cross[-

examination]. They then called him on direct, and in their 

direct they asked him to offer an opinion about whether or 

not [] Neidig was acting within the scope of his duties as a 

[City] police officer based on his understanding of the

facts, and [] [Chief] Schubert was allowed to -- Chief 

Schubert was allowed to offer that opinion. We are now, 

I think, entitled to bring on another opinion, the president 

of the FOP.

THE COURT: Wait a minute. [Chief] Schubert would be 

in the line of discipline, would he not?

[City’s Counsel]: Yes.

[McGuire’s Counsel]: Yes, but [] Swartzwelder would 

also have been involved in the disciplinary process 

because -

THE COURT: He’s not in the line of discipline. He can’t 

impose any discipline.

. . . .

THE COURT: Had [Neidig] been disciplined, they would 

have filed a grievance. I think he can say that. I mean, he 

knows when to file a grievance. But you have to watch. I 

agree that if he’s going to start giving opinions, then he 

should file -- there should have been a report filed of some 

sort.

[McGuire’s Counsel]: Again, Your Honor, we are 

proffering him as a fact witness regarding the [City’s] 

policies and procedures and the scope of duties of a City 

[] police officer.

He’s not going to testify about the general scope of duties 

of police officers, you know, worldwide or what, you

know, most police departments do. He’s going to testify 

specifically about the [City’s] policies and . . . procedures 

and whether or not [Neidig’s] conduct was in compliance.

THE COURT: But he is not a -- he is a patrolman, I 

believe.
30

[McGuire’s Counsel]: He is a patrolman. He has been 

until two years.

THE COURT: He has no rank in the City, so to speak. 

He’s not a sergeant, he’s not a lieutenant, he’s not a 

captain, he’s not a chief, right?

[McGuire’s Counsel]: No. He’s a patrolman, and he’s 

president of the FOP, and now he’s one of the head 

training officers.

THE COURT: If you use that topic of head training 

officer, then they refer back, ‘Where is the opinion?’

[City’s Counsel]: Exactly.

. . . .

[McGuire’s Counsel]: Yes. But they are basically saying, 

‘Well, he was outside the scope of his duties, he was on 

his personal time, and that has nothing to do with us.’

What we want Swartzwelder to testify to is he could be 

disciplined for his off-duty conduct.

There are policies that say that he can be disciplined for 

his off-duty conduct. And if they really thought he did all 

these horrible things that they’re now saying that he did, 

they could have disciplined him back then, and they never

did.

THE COURT: Well, if he’s going to testify that he can be 

disciplined for off-duty conduct, yes, I’ll allow that.

Okay. But I don’t know -- but if he gets in to say, for 

instance, ‘Well, Neidig’s conduct didn’t reach that level,’

then no, because then that’s an opinion. Okay?

He can testify that, you know, there are certain instances 

where certain off-duty conduct can result in disciplinary

action. But I think this doesn’t go with the thrust of your 

case to date. It’s up to you how you try your case. But the

whole thing is he wasn’t disciplined, you know.

[McGuire’s Counsel]: Respectfully, Your Honor, I think 

that it absolutely does, because our whole point is he 

wasn’t disciplined and he absolutely could have been.
31

THE COURT: Well, that’s a new twist. Before it was --

whatever. But he can’t offer an opinion. I don’t want you 

to get into whether or not this guy was penalized or not. 

He can say he’s a training -- head training officer, 

whatever it is, and that there are instances when you can 

be disciplined for even off-duty conduct. Okay?

[McGuire’s Counsel]: Can he testify about the training 

that [City] officers like Neidig receive?

THE COURT: Yes, he can.

[McGuire’s Counsel]: About what their scope of duties 

are?

[City’s Counsel]: Neidig was trained prior to 2012, prior 

to the time that he was, I think, a training officer at all, and 

I think he’s a training officer on firearms. I don’t know if 

he’s a training officer on off-duty conduct.

[McGuire’s Counsel]: He actually is. He trains on the 

statute that gives them -- primary jurisdiction statute.

THE COURT: But this Neidig had been a cop for a while 

when this happened, had he not?

[City’s Counsel]: Yeah, six years.

THE COURT: Six years. That’s what I thought. So was 

[] Swartzwelder the training officer in 2006?

[McGuire’s Counsel]: He was not the head training 

officer. He did give training back then. I can confirm with 

him whether or not he was training on the primary

jurisdiction statute six years ago.

THE COURT: All right. Well, I’m allowing this for this 

limited purpose. If he gets into opinions, I’ll just stop it, 

close it down and we’re done.

R.R. at 1014a-1027a. 

As the trial court recognized, Swartzwelder does not supervise police 

officers. Rather, Swartzwelder is a patrolman and the FOP President who has 

purportedly been involved in disciplinary proceedings. Swartzwelder was permitted 
32

to testify to facts within his knowledge. McGuire could have called Swartzwelder 

as an expert witness after he properly notified the City’s counsel and prepared and 

provided an expert report. He did not do so. Under these circumstances, this Court 

concludes that the trial court’s decision to preclude Swartzwelder’s opinion 

testimony was not “manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will, as shown by the evidence or the record.” O’Layer McCready, 204 

A.3d at 1018 n.6 (quotation marks omitted).

McGuire also argues that when Neidig’s Federal Court Action attorney 

Paul Krepps (Krepps) testified, the trial court improperly intervened in his

examination, elicited misleading testimony and prevented Krepps from clarifying 

his answers. McGuire references a short portion of Krepps’ testimony during which 

the trial court sought to clarify a question and asked Krepps a few questions. See

R.R. at 1005a-1007a. The record reflects that McGuire did not timely and 

specifically object to the trial court’s alleged inappropriate intervention and 

questioning. See DY Props. Accordingly, McGuire did not preserve this issue, and 

this Court may not consider it. See id. 

Additionally, McGuire asserts that the trial court erred by permitting 

the City to publish photographs of his injuries to the jury, arguing that “permitting 

the jury to have an extended, up-close view of those injuries in theatrical fashion by 

parading them around was unnecessary and prejudicial.” McGuire Br. at 37-38. 

However, McGuire provides no relevant legal authority in his brief to support that

argument. This Court has held that a party waives an issue if he neglects to cite to 

relevant legal authority in his brief. See Am. Rock Mechs., Inc. v. Workers’ Comp.

Appeal Bd. (Bik & Lehigh Concrete Techs.), 881 A.2d 54 (Pa. Cmwlth. 2005). 

Accordingly, this issue is waived.
33

V. Jury Charge

McGuire also proffers that the trial court erred when it included in its 

jury charge that Neidig had used “intentional and excessive force,” and instructed 

the jury to consider whether the City expected him to do so. Citing Glider v. 

Department of Highways, 255 A.2d 542 (Pa. 1969), McGuire contends that he is 

entitled to a new trial since an “error in a charge is [a] sufficient ground for a new 

trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead 

or confuse rather than to clarify a material issue[.]” Id. at 547.

McGuire specifically challenges the following trial court jury charge:

In determining whether the acts of the employee were 

within the course and scope of the employment, you 

should consider the following factors: First, whether the 

act was of a kind and nature that the employee was 

employed to perform. Second, whether the act occurred 

substantially within the authorized time and space limits.

Third, whether the act was undertook, at least in part, by a 

purpose to serve the employer. And, fourth, whether the 

intentional and excessive force used by the employee 

was not expected by the employer.

R.R. at 1181a (emphasis added). McGuire declares:

The trial court’s instruction as to the fourth factor was

legally incorrect and misleading and rendered the entire 

charge regarding course and scope of employment 

inadequate and unclear. McGuire objected to the 

instruction at the charge conference and argued that it 

should read: ‘. . . whether the force used by the employee 

was not unexpected by the employer.’ (R.[R. at] 1117a-

[111]8a)[.] The trial court agreed to remove ‘intentional 

and excessive’ from the instruction, however, when he 

read the instructions to the jury the language had not been 

removed. (R.[R. at] 1117a-[111]8a).
34

McGuire Br. at 42 (citations omitted). In addition, McGuire contends that the trial 

court’s use of the word expected through its erroneous removal of the prefix un

changed the burden of proof. See R.R. at 1181a. Specifically, McGuire proclaims:

[B]y instructing the jury to consider ‘whether the

intentional and excessive force used by the employee was 

not expected by the employer’ the trial court raised 

McGuire’s burden from showing that the [City] expected 

its officers to use force in the scope of their duties, to 

showing that it expected its officers to use ‘excessive’

force when performing their duties.

McGuire Br. at 42-43.

The Commonwealth Court ‘is obligated to apply an abuse 

of discretion standard in reviewing a trial court’s denial of 

a motion for a new trial, and may overturn the trial court’s 

determination only if that court abused its discretion.’ Ball 

v. Bayard Pump & Tank Co., . . . 67 A.3d 759, 767 ([Pa.]

2013) (citation omitted). ‘It is well settled that in 

reviewing a challenge to a jury instruction the charge, as a 

whole, must be considered. Furthermore, the trial court 

has broad discretion in phrasing the instructions, so long 

as the directions given ‘clearly, adequately, and 

accurately’ reflect the law.’ Commonwealth v. Lesko, . . .

15 A.3d 345, 397 ([Pa.] 2011) (citation omitted). ‘Error in 

a charge is [a] sufficient ground for a new trial, if the

charge as a whole is inadequate or not clear or has a 

tendency to mislead or confuse rather than clarify a 

material issue. A charge will be found adequate unless 

‘the issues are not made clear to the jury or the jury was 

palpably misled by what the trial judge said or unless there 

is an omission in the charge which amounts to 

fundamental error.’’ Stewart v. Motts, . . . 654 A.2d 535, 

540 ([Pa.] 1995) (citations omitted). Further, ‘[a] 

reviewing court will not grant a new trial on the ground of 

inadequacy of the charge unless there is a prejudicial

omission of something basic or fundamental. In reviewing 

a trial court’s charge to the jury, we must not take the 

challenged words or passage out of context of the whole 

of the charge, but must look to the charge in its entirety.’ 

Id. ‘The harmless error doctrine underlies every decision 

to grant or deny a new trial. A new trial is not warranted 
35

merely because some irregularity occurred during the trial 

or another trial judge would have ruled differently; the 

moving party must demonstrate to the trial court that he or 

she has suffered prejudice from the mistake.’ Harman ex 

rel. Harman v. Borah, . . . 756 A.2d 1116, 1122 ([Pa.]

2000).

Grove v. Port Auth. of Allegheny Cnty., 218 A.3d 877, 887-88 (Pa. 2019).

Initially, given that McGuire’s burden of proof argument is 

unsupported by legal authority, it is waived. See Am. Rock Mechs. With respect to 

McGuire’s other jury charge arguments, the trial court described the four factors the 

jury was to consider. At McGuire’s counsel’s request, to reflect Section 228 of the 

Restatement, the trial court agreed to omit the terms intentional and excessive when 

describing the fourth factor, but neglected to do so when it charged the jury. See

R.R. at 1117a-1119a, 1181a.

Nonetheless, the Federal Court Action verdict sheet14 reflected that the 

federal jury had determined that Neidig had used “excessive force.” R.R. at 19a. 

Thus, although the trial court had agreed to use the Restatement language, this Court 

discerns no prejudice from the trial court’s error, since the force referenced in the 

Restatement’s fourth factor was, in the instant matter, the same force the federal jury 

had determined was “excessive,” and the focus of the fourth factor was not the nature 

of the force used, but whether the force used was unexpected by the employer.

Finally, with respect to the trial court’s omission of the prefix un, that

factor was one of four the jury was to “consider” “[i]n determining whether the acts 

of the employee were within the course and scope of the employment[.]” R.R. at 

1181a. The jury charge did not direct the jury that the factor was or was not 

indicative of acts within or without the scope of employment, only that it was 

relevant. It merely informed the jury that the factor was to be “consider[ed.]” R.R. 

14 The Federal Court Action verdict sheet was admitted into evidence before the trial court. 

See R.R. at 739a-740a.
36

at 1181a. Whether the jury charge contained the word expected or unexpected did

not change the consideration of this factor nor did it attach a particular implication 

to the factor being “consider[ed.]” R.R. at 1181a. In addition, McGuire has not 

demonstrated that the jury was “palpably misled by what the trial judge said” or that 

there was “an omission in the charge which amounts to fundamental error.” Grove, 

218 A.3d at 888 (quotation marks omitted). Accordingly, there is no basis for this

Court to grant a new trial.

VI. Willful Misconduct

McGuire next argues that the trial court erred when it denied

indemnification absent a judicial determination in the Federal Court Action that 

Neidig committed willful misconduct. McGuire also asserts that the trial court 

erroneously permitted the City to present evidence and argument that Neidig 

engaged in willful misconduct. This Court emphasizes that under Section 8548(a) 

of the Tort Claims Act, a municipality need only indemnify an employee if that 

employee was acting within the scope of his office or duties at the time the employee 

caused the injury. Because the jury properly determined that Neidig acted beyond 

the scope of his employment, and the jury did not reach the willful misconduct issue, 

this Court need not address McGuire’s willful misconduct arguments. 

For all of the above reasons, the trial court’s order is affirmed.

___________________________

ANNE E. COVEY, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Shane McGuire on behalf of :

Colby Neidig, :

Appellant :

:

v. :

: No. 141 C.D. 2020

City of Pittsburgh :

O R D E R

AND NOW, this 10th day of March, 2021, the Allegheny County 

Common Pleas Court’s January 3, 2020 order is AFFIRMED. Shane McGuire’s 

Application for Motion to Strike Portions of Appellee’s Brief is DENIED.

___________________________

ANNE E. COVEY, Judge