186 A.3d 490
Pa. Commw. Ct.2018Background
- Mazur and Cuthbert were coworkers at the Commonwealth Department of Military and Veterans Affairs’ Southwestern Veterans Center; Mazur supervised handling cash for residents and $500 went missing after a bank withdrawal.
- The Center investigated; Mazur was suspended pending inquiry, then received an eight-day, time‑served suspension and a final warning under a settlement agreement with her union.
- Mazur filed for unemployment benefits; a notice of determination (initially denying benefits) contained erroneous findings stating she had been discharged for dishonesty, which Mazur attributed to statements by Cuthbert.
- Mazur sued Cuthbert for defamation, alleging Cuthbert knowingly published false statements to supervisors and an unemployment compensation representative; Cuthbert filed preliminary objections asserting sovereign immunity and absolute privilege.
- Trial court sustained preliminary objections and dismissed the complaint with prejudice; on appeal this Court affirmed in part, reversed in part, and remanded for further proceedings to permit Mazur to show Cuthbert acted outside the scope of employment by making knowingly false statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / procedural default of preliminary objections | Mazur: Cuthbert’s immunity should be raised as new matter; preliminary objections were untimely and default should have been entered | Cuthbert: Preliminary objections were filed before any praecipe for default; immunity is apparent on face of complaint so objection was proper | Court: No default; exception allows raising immunity by preliminary objection when defense is clear on complaint; trial court did not err |
| Whether Cuthbert acted within scope of employment when making statements | Mazur: Statements were knowingly false, violated Center policies/ethics, and thus were outside scope of employment | Cuthbert: Job duties included investigating, preparing unemployment cases, gathering witness statements, and representing the agency at hearings—statements were within duties | Court: Accepting allegations as true, job description supports that statements were within scope; but if Mazur can plead facts showing knowing falsity (personal motive), that could take conduct outside scope and defeat immunity |
| Applicability of sovereign immunity to intentional tort (defamation) | Mazur: Immunity inapplicable because statements were outside scope or fall under statutory exceptions | Cuthbert: Commonwealth employees retain sovereign immunity for intentional torts committed within scope of employment; no waiver applies | Court: Defamation is an intentional tort not waived by Sovereign Immunity Act; immunity bars suit unless conduct is outside scope or a statutory exception applies |
| Relevance of agency policies / willful misconduct | Mazur: Violations of ethics/agency rules show willful misconduct removing immunity | Cuthbert: Even wrongful or malicious acts can be within scope if related to duties; willful‑misconduct exception does not apply to Commonwealth employees | Held: Policy violations could, if adequately pleaded as knowingly false statements not serving employer, place conduct outside scope; pleadings were at least sufficient to survive preliminary objections and remand is required to develop facts |
Key Cases Cited
- Milliner v. Enck, 709 A.2d 417 (Pa. Super. 1998) (statements to unemployment representative held absolutely privileged)
- Yakowicz v. McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988) (publisher of defamatory performance review protected by sovereign immunity)
- Ioven v. Nestel, 150 A.3d 571 (Pa. Cmwlth. 2016) (Commonwealth employee immune from intentional tort claims when acting within scope of employment)
- Kull v. Guisse, 81 A.3d 148 (Pa. Cmwlth. 2013) (acts contrary to policy may still be within scope if furthering employer’s interest; willful‑misconduct exception not applicable to Commonwealth employees)
- Justice v. Lombardo, 173 A.3d 1230 (Pa. Cmwlth. 2017) (use of force by trooper held within scope; scope inquiry focuses on whether conduct is of the general nature authorized)
- Cimino v. DiPaolo, 786 A.2d 309 (Pa. Cmwlth. 2001) (official’s communications to authorities about suspected misconduct were within adjudicative responsibilities and thus within scope)
- Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014) (affirmative defense of immunity may be raised by preliminary objection when defense is clearly apparent on the face of the complaint)