Scope of Employment; Sovereign Immunity
Justice v. Lombardo, 173 A.3d 1230 (Pa. Cmwlth. 2017), allocatur granted Jun. 5, 2018, appeal docket 569 EAL 2017
This case involves the applicability of the sovereign immunity for Pennsylvania State Police Troopers when they are acting within the scope of their employment. The trial court entered judgment favoring plaintiff Shiretta Justice in her intentional tort claims against Trooper Lombardo that arose from a traffic stop. Commonwealth Court reversed the lower court’s decision and held that Lombardo was acting within the scope of his employment when the underlying incident occurred and therefore is immune from suit.
Lombardo was assigned to the Bureau of Patrol in Philadelphia. On the day of the incident with Ms. Justice, he was patrolling in uniform in a marked vehicle when he pulled Justice’s vehicle over and issued her citations for driving without a license and failing to use a turn signal. Because Justice’s license was suspended, she could not drive her vehicle away from the scene. Justice called a friend to have him drive her car home. After waiting for the friend to arrive, Lombardo ordered the vehicle be towed and ordered Justice and her stepson to exit the vehicle. Ms. Justice claims the situation became heated and Lombardo jumped on her and caused her to sprain her arm, wrist, and back due to his use of force. Lombardo claims Justice was uncooperative and resistant. Justice’s friend arrived shortly after the incident and Lombardo removed Justice’s handcuffs and allowed Justice and her stepson to leave.
Justice filed a complaint with the PSP. The Internal Affairs Division (IAD) determined that Lombardo did not violate any department regulations. Justice then filed a complaint in the Court of Common Pleas naming Lombardo as the sole defendant. Lombardo’s preliminary objections that he was immune from suit under the Sovereign Immunity Act were overruled and the case proceeded to arbitration. The arbitration panel determined Lombardo was acting outside the scope of his employment during the incident and awarded her damages. The case then proceeded to a jury trial. The jury returned a verdict in favor of Ms. Justice and Lombardo subsequently filed a motion for post-trial relief seeking JNOV or a new trial. The trial court denied his motion and Lombardo appealed. Lombardo’s argument on appeal was that he was acting in the scope of his employment and is immune from suit for the intentional tort claims brought by Justice. The Commonwealth Court agreed with Lombardo and reversed the lower court’s judgment.
Lombardo argued that he was acting within the scope of his employment because when he pulled Ms. Justice over, “he was doing exactly what he is employed to do.” Slip Op. at 16. He is employed to patrol the highways, enforce the Vehicle Code, and ensure public safety, which he contended is what he was doing throughout the incident with Ms. Justice.
Ms. Justice argued that Lombardo was acting outside the scope of his employment because the use of force applied when Lombardo placed Ms. Justice in handcuffs was “completely unacceptable and completely gratuitous, excessive or unreasonably motivated by his personal anger,” and he was not acting in the interest of the PSP. Slip Op. at 16.
Commonwealth Court relied on Section 229(1) of the Restatement (Second) of Agency (1958) that to be within the scope of employment, the conduct must be of the same nature authorized or incidental to conduct that is authorized by the employer. Section 231 provides that “acts may be within the scope of employment even if consciously criminal or tortious.” Slip Op. at 18.
The court determined that the only issue to be considered was whether Lombardo was acting within the scope of his employment at the time of the incident with Justice. “Whether his conduct was reasonable or not, intentional or not, tortious or not, carried out for an improper motive or not, are all irrelevant because Trooper Lombardo’s use of force in placing Ms. Justice’s hand behind her back and ‘wrestling’ with her to apply handcuffs was of the same general nature as that authorized or incidental to the conduct authorized, and use of force, in general, by State Troopers is not unexpected.” Slip Op. at 18.
The court found that Lombardo’s conduct was of the nature of conduct authorized. Generally, the PSP authorized Lombardo to use force where necessary to carry out purposes of enforcement of Pennsylvania law and codes. The Commonwealth Court thus held that the trial court committed an error of law in denying Lombardo’s JNOV motion and the case was remanded to enter judgment in favor of Lombardo.
The Supreme Court of Pennsylvania granted allocatur on the following issue:
Was [Respondent] acting within the scope of his employment throughout his entire encounter with the motorist, and thus entitled to JNOV on the basis of sovereign immunity?
For more information, contact Kevin McKeon or Dennis Whitaker.