Kull v. Guisse
81 A.3d 148
| Pa. Commw. Ct. | 2013Background
- Kull was a probationary assistant professor at Kutztown University (part of the State System of Higher Education) who was denied tenure and promotion after departmental and university committees recommended against him.
- Kull sued numerous faculty members involved in the evaluations, alleging intentional torts: defamation, invasion of privacy/false light, and intentional interference with contractual relations; he repeatedly amended complaints and removed/ remanded federal §1983 claims.
- Appellees (faculty committee members) asserted sovereign immunity as Commonwealth employees under Pennsylvania’s Sovereign Immunity Act; the trial court sustained preliminary objections and dismissed Kull’s fourth amended complaints with prejudice.
- Kull argued the committee members deviated from collective bargaining agreement (CBA) procedures (e.g., failing to consider work outside the department, not discussing classroom evaluations before writing them, denying committee appearances), placing their conduct outside the scope of employment.
- The trial court applied Restatement (Second) of Agency § 228–230 and concluded the evaluative acts were within the scope of employment even if the CBA procedures were not strictly followed; the Commonwealth sovereign-immunity defense therefore barred Kull’s intentional-tort claims.
- Kull also raised (and the court rejected) arguments invoking Goldman regarding arm-of-state Eleventh Amendment analysis and procedural waiver for failing to preserve certain issues in his Pa. R.A.P. 1925(b) statement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appellees lost sovereign immunity because their evaluation conduct deviated from CBA procedures | Kull: cumulative procedural and substantive deviations from CBA show conduct outside scope of employment, creating factual issue for jury | Appellees: evaluations (including negative recommendations) are duties of faculty and occurred within time/place and to serve KU, so within scope | Held: Conduct was within scope of employment; sovereign immunity bars intentional tort claims |
| Whether slight or multiple departures from authorized conduct can place acts outside scope | Kull: Restatement §229 comment permits inference that slight departures, when aggregated, remove protection | Appellees: Restatement and cases (Brumfield/Butler) permit acts contrary to policy to remain within scope if in service of employer | Held: Departures from CBA do not by themselves remove acts from scope; trial court correctly applied Restatement principles |
| Whether Goldman undermines SSHE/ Commonwealth immunity | Kull: Goldman (SEPTA not an arm of state) raises question whether SSHE is entitled to sovereign immunity | Appellees: Goldman concerns Eleventh Amendment arm-of-state analysis for federal law and does not affect state-law sovereign immunity under Pennsylvania statute | Held: Goldman is inapplicable; does not affect state sovereign-immunity defense here |
| Whether Appellees improperly raised sovereign immunity in preliminary objections and whether Kull preserved challenge | Kull: immunity is affirmative defense; raising it in preliminary objections was procedurally improper and he challenged it at argument | Appellees: immunity may be raised in prelim. objections; Kull failed to preserve challenge by omitting it from his 1925(b) statement and failing to file preliminary objections to immunity assertion | Held: Issue was waived for appeal; trial court did not err in finding waiver |
Key Cases Cited
- Brumfield v. Sanders, 232 F.3d 376 (3d Cir. 2000) (even debatable or policy-contrary acts may remain within scope if serving employer)
- Butler v. Flo-Ron Vending Co., 557 A.2d 730 (Pa. Super. 1989) (authority endorsing Restatement scope-of-employment standard)
- Aliota v. Graham, 984 F.2d 1350 (3d Cir. 1993) (employee false statements may be within scope of employment)
- Yakowicz v. McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988) (evaluation of colleagues by Commonwealth employees protected by sovereign immunity)
- La Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992) (sovereign immunity bars intentional torts if within scope of employment)
- Williams v. Stickman, 917 A.2d 915 (Pa. Cmwlth. 2007) (state-employee immunity applies to intentional torts when within scope)
- Goldman v. Southeastern Pennsylvania Transportation Authority, 57 A.3d 1154 (Pa. 2012) (SEPTA not an arm of the state for Eleventh Amendment purposes; court held inapplicable to state sovereign-immunity analysis)