Lead Opinion
Subject to certain exceptions, sovereign immunity shields Commonwealth employees acting within the scope of their duties from liability for tortious conduct. 1 Pa.C.S. § 2310 ; 42 Pa.C.S. §§ 8521 -22. In this intentional tort action, a jury found that Pennsylvania State Police ("PSP") Trooper Joseph Lombardo ("Trooper Lombardo") was acting outside the scope of his employment based on his use of force in an incident following a routine traffic stop. Accordingly, Trooper Lombardo was unable to benefit from the protections of sovereign immunity and judgment was entered against him and in favor of Shiretta Justice ("Ms. Justice"). The trial court affirmed, denying Trooper Lombardo's post-trial motion for judgment notwithstanding the verdict ("JNOV") and a new trial.
On appeal, the Commonwealth Court reversed, concluding that Trooper Lombardo's *1060conduct fell within the scope of his employment and remanded for the entry of JNOV in favor of Trooper Lombardo. As discussed in more detail herein, pursuant to the Restatement (Second) of Agency §§ 228 - 235 (hereinafter the "Restatement") whether Trooper Lombardo's actions were within the scope of employment depends on the nature of his job; how, when and why he acted as he did; and the extent to which the PSP might expect him to use force under the circumstances. This fact-intensive scope of employment inquiry was properly put to the jury. See Orr v. William J. Burns Intern. Detective Agency ,
Procedural History and Background
Ms. Justice initiated this action against Trooper Lombardo for assault, battery, invasion of privacy, intentional infliction of emotional distress and false imprisonment/arrest.
The evidence presented at trial revealed the following. During the time period relevant to this matter, Trooper Lombardo was assigned to the PSP's Bureau of Patrol, Belmont Barracks, in Philadelphia. On the afternoon of November 27, 2013, the day before Thanksgiving, Trooper Lombardo was on duty, in uniform, patrolling the Schuylkill Expressway in a marked PSP vehicle. Ms. Justice was driving westbound on the Schuylkill with her nineteen-year-old step son, Chafi Carter ("Carter"), in the passenger seat. At some point, Ms. Justice noticed Trooper Lombardo's vehicle coasting alongside her. When he motioned for her to pull over, she complied.
*1061Ms. Justice testified that after pulling her over, Trooper Lombardo told her that she had a broken taillight and a suspended license.
Ms. Justice testified that, per her discussion with Trooper Lombardo, she contacted Carter's mother, who agreed to come meet them along with another licensed driver so that one of the drivers could drive Ms. Justice's car from the road. She told Trooper Lombardo that these other drivers were on their way and that it should not take them long to arrive. Trooper Lombardo again walked away. According to Ms. Justice, the next thing she knew, a tow truck was pulling up, even though Trooper Lombardo had not returned to her car to inform her that the plan was changing. She stated that she pleaded with Trooper Lombardo to let her friends take the car, indicating that they were very close at that point. According to Ms. Justice, Trooper Lombardo refused, instead telling her that he had changed his mind and instructed her to "get out of the vehicle or I'm going to forcibly remove you" from it. N.T., 3/11/2016, at 73. At that point, she and Carter got out of the car and removed themselves to the embankment on the other side of the Jersey barrier to continue waiting. Sixteen seconds of audiovisual footage showing the tow truck parked in front of Ms. Justice's car, captured on Carter's cell phone, was introduced into evidence and played for the jury. See Justice's Exhibit 1 (Carter's Cellphone Video).
Ms. Justice testified that Trooper Lombardo then approached the embankment offering to give her a ride. When she told him she did not need a ride, he responded "so where's your ride?" She answered that her "ride should be pulling up any second." Trooper Lombardo then told her to get into his car. She refused, testifying that she "wasn't going to get in the car with him." N.T., 3/11/2016, at 74-75.
Ms. Justice's lawyer played additional audiovisual footage, captured by Carter's cellphone, to demonstrate to the jury what happened next. See Justice's Exhibit 1.
And next thing I know [Trooper Lombardo]'s jumping the embankment on me, wrestling me down. I'm screaming and crying at that point. I was very scared and not understanding what was happening or what was going on because, you know, I was just like taken back because his demeanor was like so nasty the whole time. And then he comes over and tries to give me a ride after he was so unsympathetic and *1062asked, you know, what was happening. And, you know, I didn't feel comfortable getting in the car with him at that point because of his demeanor.... So he jumped me, wrestled me, twisted my arm behind my back, was trying to push me down to the ground, you know.
N.T., 3/11/2016, at 75-76. Ms. Justice recounted that she was "screaming and twisting around" and "pleading with [Trooper Lombardo] and letting him know that he's hurting me and that I have kids."
She continued:
I'm thinking that he's going to hurt me or send me off to jail. And I'm asking him, "What are you doing? ... What's going on here?" And eventually he was hurting me too much. He was being forceful and my arm was twisted way up my back. I just let him do what he wanted to do and put the handcuffs on me. And at which point he said, "If you calm down and stop acting like an animal," you know, that's the last thing I remember him saying. I'm like, "an animal? Sir, what's going on here? You have me in handcuffs. I told you my ride is coming. I'm not understanding." Next thing I know, here comes [my ride] pulling up. I said, "I told you my ride was here."
Ms. Justice testified that Trooper Lombardo never explained why he was placing her in handcuffs or why she needed to get into his police vehicle. Id. She explained that this was the reason she can be heard on the video asking Trooper Lombardo "why are you doing this?" as she did not understand why he was "jumping at" her and placing her in handcuffs. He did not explain his actions and "[h]e wasn't placing me under arrest. [H]e didn't read me any rights. I just didn't understand what he was doing." Id. at 80. She stated that the entire episode, including the traffic stop and the ensuing events, lasted about forty minutes or less, and that she never cursed or used obscene gestures during this time. Afterward, she felt "embarrassed, humiliated, disrespected, victimized, afraid." Id. at 81. Moreover, her arm, wrists and back were hurting as a result of how Trooper Lombardo handled her. Id.
On direct examination, Trooper Lombardo testified that his general duties as a patrol trooper in 2013 were to go out on patrol and investigate crimes, to assist people in need, and to enforce the Motor Vehicle and Crimes Codes of Pennsylvania. Regarding his encounter with Ms. Justice on November 27, he stated that he informed Ms. Justice that a tow truck would be coming after she "snapped at me" that she had not arranged for anyone to drive her car off the expressway. Id. at 112. He also testified that Ms. Justice refused to take the tickets from him so he dropped them "on the center console or her passenger" before returning to his patrol car to await the tow truck. Id. at 113.
According to Trooper Lombardo, when the tow truck arrived, he informed Ms. Justice that she would need to get out of her vehicle and she refused, "cursing me up and down." Id. at 113. He also testified that he threatened to physically remove Ms. Justice from her car if she did not get out. When she did exit the vehicle, she again "curs[ed] me up and down." He *1063characterized Ms. Justice's behavior as an "onslaught ... it was a disgrace, especially coming from a woman. I was taken back by it." Id. at 114. He also stated that he felt like Ms. Justice "was causing him a hard time" when she took time to retrieve her belongings from her car. Trooper Lombardo testified that he then asked Ms. Justice "if she was coming with [him] so [he could] take her off the highway to a safe location," at which point she continued to curse at him, stating she would not go into his patrol car and then climbed over the Jersey barrier. Id.
Trooper Lombardo testified that he did not believe Ms. Justice's ride was actually nearby. He also stated that he believed it was unsafe for Ms. Justice to wait behind the Jersey barrier for her ride and that all he wanted to do was get her into his car to take her to a safe place. He testified that he told her several times that "we need to get off the highway" and that she ignored him and was uncooperative. Id. at 117. It was only then that he "went over to the other side of the barrier ... [and] grabbed her arm to bring her back to my car so we could get off the highway." Id. According to Trooper Lombardo, when he jumped the barrier, Ms. Justice started to fight with him and resist. He testified that he "just wanted to get control of the situation and put her in handcuffs to put her in the back of my car because everyone who goes in my car gets in handcuffs. It's a safety issue." Id. He further testified that when Ms. Justice's ride arrived, he took off the handcuffs and allowed her to go with her friend because his only objective was to get her off the highway.
When asked why he did not drive away once Ms. Justice and Carter were out of Ms. Justice's car and on the far side of the Jersey barrier, Trooper Lombardo stated that he thought it would have been "irresponsible as a police officer if you just tow somebody's car [and] leave them on the side of one of the busiest highways in ... America." Id. at 121. He continued that, "if you come in contact with someone on the highway, you take them off the highway for their safety," and that goes for someone whose car has been towed as well. Id. at 121-22. "You're not just going to leave them on the side of the highway. I was trained to take this person to a place of safety and that is all I wanted to do." Id. at 122.
On cross-examination, Trooper Lombardo conceded that neither of Carter's cellphone videos that were played for the jury contained footage of Ms. Justice cursing at him, and that he had not mentioned her cursing in his prior deposition testimony. Id. at 132-35. Trooper Lombardo acknowledged that he never directed Carter to get into his patrol car and made no attempt to handcuff Carter, although he testified that he intended to do so after restraining Ms. Justice. Id. at 141. Trooper Lombardo admitted that the videos do not show him telling Ms. Justice that it was unsafe for her to wait for her ride behind the barrier. He also admitted that he never gave Ms. Justice any explanation for why he was handcuffing her and never told her about any policy requiring him to remove her from the highway. He further acknowledged that he never charged Ms. Justice with any criminal violations such as resisting arrest or disorderly conduct. Id. at 160.
When questioned about the area where Ms. Justice and Carter were waiting for their ride, Trooper Lombardo testified that they were behind a barrier that was approximately three and a half feet tall and that no one could legally drive in that area. He confirmed that his patrol car was parked on the shoulder in between a lane of traffic and the Jersey barrier, and conceded that if someone standing on the far side of the barrier were to be hit by a car, *1064it would not be the fault of the person waiting behind the barrier. The jury also heard Trooper Lombardo testify that there was a camera taking video footage from his patrol car on November 27, 2013, because the camera turns on whenever a trooper activates a patrol car's emergency lights, and that he was certain the camera was running at the time of his encounter with Ms. Justice. Id. at 136. When questioned as to why he never turned this footage over to Ms. Justice's lawyer, Trooper Lombardo testified that it had been automatically deleted forty-five days after the incident, noting that this was standard operating procedure absent a need to preserve it. Id. Trooper Lombardo testified that Ms. Justice's complaint came in forty-five days after the incident "which means the video would be erased." Id. , at 136. It was otherwise uncontested, however, that Ms. Justice filed a written complaint at Belmont Barracks within six days after the incident.
Finally, Corporal Derek Watford ("Corporal Watford") of the PSP testified in Lombardo's defense regarding certain rules governing the conduct of PSP troopers on patrol. Id. at 178-187. He testified that if a car must be removed from the highway under circumstances where the driver is not being taken into custody, "no one should be left on the side" of the road. Furthermore, he stated that it is proper for a trooper to transport a person from the highway to a place of safety, and that "anybody that's transported in a [PSP] car shall be searched, patted down for weapons and handcuffed for the safety of the member as well as the individual being transported." Id. at 179. He testified that the PSP's Field Regulations Manual ("FRM"), section 7-2, titled "Prisoner Security and Transportation," sets forth the foregoing policy, citing subsection 2.03 in particular. He also stated that every trooper is instructed on handcuffing during their time in PSP Academy. Although he testified that troopers are instructed not to leave people on the side of a highway, he stated that this was "a matter of safety," but that "no specific regulation" exists in this regard. Id. at 182.
On cross-examination, Corporal Watford conceded that subsection 2.03 of the FRM relates only to "prisoner searches" and does not contain any language about how troopers are supposed to treat non-prisoner motorists whose vehicles have been impounded. He testified, however, that he would characterize a motorist who is transported in a police vehicle as a prisoner, because "if I put you in my vehicle, you can't exit. The doors lock. So, in essence, you're a prisoner. You can't get out of the vehicle without us releasing you." Id. at 184. Upon questioning by the trial court, Corporal Watford indicated that there are circumstances under which he would not handcuff someone he found on the side of the highway (for example, if the individual were the victim of a violent crime). While emphasizing section 7-2's focus on trooper safety, Corporal Watford could not point to any provision authorizing a trooper to handcuff the occupants of a towed car for the purpose of removing them from the side of the highway, or for any other purpose. Id. at 186-87.
At the close of trial, the trial court presented the following jury instruction on scope of employment:
If [Trooper Lombardo's] actions on November 27, 2013, were within the scope of his employment, then [Ms. Justice] will not recover. It is for you to decide whether [Trooper Lombardo] at the time of the occurrence was acting within the scope of his employment. Any employee is acting within the scope of his employment where such act is in furtherance of the employer's interests, activities, *1065affairs, or business, or is designed to accomplish the purpose of the employment. It is not necessary that the act or omission had been specifically authorized as long as it could reasonably be found to have been contemplated as part of the employment.
An employee is not acting within the scope of his or her employment when he or she departs or substantially deviates from the business or services of his employer pursuing some personal activity on his own account and not reasonably embraced within this employment or not directed towards advancing his employer's interest.
The conduct of an employee is considered to be within the scope of employment if, one, it is of a kind and nature that the employee is employed to perform. Two, it occurred substantially within the authorized time and space limits. Three, it is actuated at least in part, by a purpose to serve the employer. And, four, if force is intentionally used by the employee against another, the use of force for the particular circumstances is not unexpected by the employer.
An assault committed by an employee upon another for personal reasons or in an outrageous manner is not actuated by intent to perform the business of an employer, and as such, is not within the scope of employment.
N.T., 3/14/2016, at 49-51.
The jury returned a verdict in favor of Ms. Justice in the amount of $ 160,000. On March 17, 2016, Trooper Lombardo filed post-trial motions seeking a new trial or JNOV on the basis that he was acting within the scope of his employment and was therefore protected from liability by sovereign immunity. On July 19, 2016, the trial court denied Trooper Lombardo's motions and entered judgment. Trooper Lombardo appealed. In a written opinion, the trial court indicated that there was inconsistent evidence presented at trial as to which "reasonable minds could differ about the facts." Trial Court Opinion, 12/6/2016, at 5. Moreover, "because the determination of whether [Trooper Lombardo] was acting outside the scope of his employment during his interaction with [Ms. Justice] was in the sole province of the jury as the finders of facts," the trial court held that denying JNOV was not error and advocated that the entry of judgment against Trooper Lombardo should be affirmed. Id. at 7.
The Commonwealth Court reversed, agreeing with Trooper Lombardo that he was protected from liability for the intentional tort claims against him because he acted within the scope of his employment when handcuffing Ms. Justice following the traffic stop. Justice v. Lombardo ,
Discussing section 228(1) of the Restatement, the intermediate appellate court also noted that "if force is intentionally used by the employee against another," it must be "not unexpected by the employer."
Discussion
In accordance with 1 Pa.C.S. § 2310, "the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity." 1 Pa.C.S. § 2310. Our intermediate appellate courts have held that these protections shield an employee of a Commonwealth agency from the imposition of liability even for intentional torts.
Section 228 of the Restatement provides:
(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 (Second) of Agency § 228(1) (1958).
Subsequent sections of the Restatement provide additional criteria for assessing whether conduct falls within the scope of employment. See e.g. ,
By its terms, the Restatement sets forth parameters governing the potential vicarious liability of employers for the tortious acts of their employees in scenarios where neither sovereign nor local government immunity applies. In such instances, the plaintiff carries the burden of proving that an employee acted within the scope of employment. If he prevails, he may recover damages from the employer. See Lunn v. Boyd ,
This Court has adopted the Restatement's scope of employment analysis in vicarious liability cases. See Howard ,
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. Orr ,
As described in our overview of the evidence, this incident evolved from a valid traffic stop. Ms. Justice was stopped by Trooper Lombardo on the Schuylkill Expressway for a broken taillight (or for her failure signal when changing lanes) and for driving without a valid license. She was ticketed for two violations of the Motor Vehicle Code. There is no dispute that she could not drive the vehicle from the scene of the traffic stop or that her nineteen-year-old stepson, who was unlicensed, also could not drive the vehicle from the scene. While the timing of Trooper Lombardo's decision to call a tow truck may be suspect (given his suggestion that Ms. Justice arrange for friends to drive the vehicle from the scene), it is clear that he had the authority to call for a tow. And whether or not Ms. Justice and Trooper Lombardo were cordial with each other when he told her to exit her vehicle so that it could be towed is ultimately only tangentially relevant to the resolution of this matter.
At its core, the conduct of Trooper Lombardo that forms the basis for the tort action decided by the jury is that which occurred after Ms. Justice removed herself to the side of the Jersey barrier farthest from the travelled lanes of the Schuylkill *1069Expressway and the use and degree of force by Trooper Lombardo in handcuffing her under the circumstances. As discussed, this case involves a type of evidence becoming more prevalent, namely, that resulting from a citizen utilizing a cellphone to capture audio and video of occurrences in real time. The jury in this matter was presented with both testimonial evidence of the incident in question and an audiovisual recording of the same events. Just as determinations about the credibility of testimony are in the province of the jury, so too is the interpretation of the audiovisual recording of the incident.
This case comes to us following the Commonwealth Court's reversal of the trial court's denial of JNOV. We review the Commonwealth Court's legal conclusions de novo. An appellate court will reverse the trial court's decision to grant or deny JNOV only when it finds an abuse of discretion or an error of law. See Rost v. Ford Motor Company ,
A court may enter JNOV on one of two bases. The first is where a movant is entitled to judgment as a matter of law because, upon reviewing the record and deciding all factual inferences adverse to the movant, the law nonetheless requires a verdict in his favor. Moure ,
Thus, we may conclude that the denial of JNOV was inappropriate only if there is insufficient, competent evidence to sustain the verdict. Wenrick v. Schloemann-Siemag Aktiengesellschaft ,
The Commonwealth Court stated that in reaching its conclusion that Trooper Lombardo was entitled to JNOV, it followed the legal principle just recited, namely that it viewed all of the evidence in the light most favorable to Ms. Justice. Justice ,
We now summarize the previously detailed evidence in the light most favorable to Ms. Justice to test the Commonwealth *1070Court's holding that, as a matter of law, Trooper Lombardo was acting within the scope of his employment. While Ms. Justice and her stepson were waiting for their ride behind the three-and-a-half-foot tall Jersey barrier, removed from the travelled lanes of the highway, Trooper Lombardo aggressively jumped over the barrier wielding his handcuffs. He forcibly wrestled Ms. Justice into handcuffs for the purpose of involuntarily removing her from behind the protection of the barrier so that she could be transported elsewhere. He engaged in this conduct instead of allowing her to wait for the private transportation he had encouraged her to arrange. Ms. Justice was not under arrest for any crime and was not being detained because of suspicion of criminal activity. Moreover, she specifically refused Trooper Lombardo's offer to transport her.
The Commonwealth Court's rationale for concluding that this evidence required a JNOV is flawed. Ignoring the specific evidence offered by Trooper Lombardo to define what conduct is authorized, the Commonwealth Court reasoned that Trooper Lombardo's use of force was within the scope of his employment because it was "incidental to" his authority to regulate the highways and make warrantless arrests. Justice ,
Contrary to the Commonwealth Court's pronouncements, the Restatement's guidance that an employee's unauthorized conduct may be within the scope of employment if it is of "the same general nature as" or "incidental to" some authorized conduct is not a catchall intended to give legal cover to all manner of unsanctioned behavior. Moreover, it is simply not the law that an employee's use of force is within the scope of employment regardless of whether the force is reasonable or carried out for an improper motive. See Restatement (Second) of Agency § 228(1)(c). The Commonwealth Court's approach results in an expansive new rule pursuant to which essentially any use of force by a trooper is within the scope of employment even if it occurs, as here, after the completion of a traffic stop and unrelated to any arrest for the violation of any law. Indeed, the intermediate appellate court's holding would usurp scope of employment inquiries from the jury in virtually all cases involving the use of force by a PSP trooper whose conduct, no matter how egregious, occurred while he or she was on duty and in uniform. According to that court, because a trooper is authorized to use force in certain circumstances, he is necessarily acting within the scope of his employment anytime he uses force, regardless of the degree or reason for using it. This is a misstatement of the law.
We decline to hold that wrestling Ms. Justice into handcuffs was, as a matter of law, "incidental to" Trooper Lombardo's duty to enforce highway regulations or make warrantless arrests. By logical extension, we also disagree with the Commonwealth Court and Trooper Lombardo that his use of force was not unexpected simply because, under entirely different circumstances, a PSP Trooper might be permitted to use force. See 18 Pa.C.S § 508 (relating to an officer's use of force in making a lawful arrest ).
Resolution of this matter was properly put to the jury. Based on our review of the record, and resolving all disputed evidence in favor of Ms. Justice as the verdict winner, the jury could have concluded under the circumstances of this case that Trooper Lombardo's use of force, including wrestling and forcibly handcuffing Ms. Justice, was not within the scope of his employment. As discussed, there was sufficient competent evidence upon which the jury could find that Trooper Lombardo's use of force was neither of the kind he was employed to perform nor incidental thereto. This same evidence could also support a finding that the PSP would not have expected Trooper Lombardo to use force under the circumstances present in this case.
Based both on testimony and cellphone footage of the incident, it was reasonable for the jury to conclude that Trooper Lombardo lacked any cause or suspicion whatsoever that Ms. Justice was committing or about to commit any crime when she and Carter were standing behind the Jersey barrier. He does not now argue to the contrary, nor did he testify at trial that he suspected criminal activity, reasonably or otherwise. As Trooper Lombardo acknowledged, Ms. Justice was never charged with, let alone convicted of, any offense that might justify handcuffing, especially at the time in question. See N.T., 3/11/2016, at 160.
Even assuming arguendo that the jury intuitively understood that handcuffing someone pursuant to a valid arrest is conduct a trooper is employed to perform, and that the PSP might expect troopers, including Trooper Lombardo, to employ force in some scenarios as they carry out *1072their legitimate patrol duties, it was reasonable for the jury to conclude that Trooper Lombardo's intentional use of force upon Ms. Justice, who waited for a ride behind a three-and-a-half foot high concrete barrier removed from the roadway, departed drastically from such authorized and expectable conduct.
Moreover, there was no evidence that would require a jury to conclude that the use of force is sanctioned for the purported purpose of protecting a citizen from a disputable safety threat at the side of the highway. When questioned about the proper PSP procedure to follow after towing a car from the highway, Trooper Lombardo testified that he had been trained to drive the occupants of the towed car to a place of safety. N.T., 3/11/2016, at 122. Similarly, Corporal Watford testified that "no one should be left on the side" of the road as a matter of safety.
However, the subsection to which Corporal Watford made specific reference, 203(A), does not mention handcuffing. Moreover, in response to questions from Ms. Justice's counsel, Corporal Watford agreed that the headings of section 7-2 and its subsection 203(A) both reflect that they apply only to "prisoners," and he could not point to any language indicating, or even suggesting, that someone whose car has been impounded qualifies as a "prisoner." Instead, he testified that subsequent provisions reference entirely unrelated circumstances, *1073like strip and body cavity searches, which understandably would apply to prisoners. Moreover, in response to follow up questions by the trial court regarding Corporal Watford's contention that anyone placed in a patrol car is a "prisoner" subject to handcuffing, Corporal Watford admitted that this statement was overbroad, as not all individuals transported in patrol cars (e.g., victims of crime) are handcuffed. Based upon this testimony, the jury was free to disregard Corporal Watford's assertion that section 7-2 of the FRM authorized Trooper Lombardo to handcuff Ms. Justice to transport her in the back of a patrol car. Indeed, it was within the jury's province to conclude that section 7-2 of the FRM had no application in the vehicle impoundment context and that, accordingly, Ms. Justice was not a "prisoner" who could be subjected to handcuffing by Trooper Lombardo. Moreover, because Corporal Watford did not reference any other provision of the FRM to support Ms. Justice's handcuffing, and because he testified that the FRM was a comprehensive compilation of all of the PSP's policies,
In sum, Trooper Lombardo offered testimony and documentary evidence of authorized conduct in the scope of his employment. Although unauthorized conduct, including the intentional use of force, may still be within the scope of employment in certain circumstances, this question is for the jury to decide based on the evidence presented. Specifically, it was for the jury to determine whether Trooper Lombardo's use of force and handcuffing of Ms. Justice, who the jury was free to conclude was not a prisoner and was not suspected of any criminal activity, was incidental to authorized conduct and not unexpected by the PSP. Under the facts as established, we hold that it was reasonable for the jury to decide that Trooper Lombardo's use of force was outside the scope of his employment.
Furthermore, as noted in our discussion of the Commonwealth Court's erroneous reasoning, the jury was entitled to examine the reasonableness of and motive behind Trooper Lombardo's conduct in deciding whether his use of force fell outside the scope of employment. See Restatement (Second) of Agency § 228(1) ; see also Lunn v. Boyd ,
By way of example, in Brennan , a child mounted the side of a truck-wagon as it passed him. Brennan ,
Similarly, in Orr , Smith, an employee of a detective agency that was hired to guard and protect a pier during a seamen's strike, shot two of the striking seamen after ordering them into his car. Orr ,
Although we recognized that Smith, the shooter, was "overzealous in the performance of the duties for which he was employed, that he abused his authority, was reckless, and inflicted unnecessary injury," we nonetheless concluded that the jury's verdict was sound, and the trial court's denial of JNOV was proper.
Howard is illustrative as well. There, a bartender fired his pistol at a patron for making an advance on the woman sitting next to him. Howard ,
As in Orr and Brennan , it was for the jury to decide whether Trooper Lombardo's conduct was actuated for a purpose to serve the PSP or, instead, out of some personal animus. There was evidence upon *1075which the jury could have relied to conclude the latter. First, although there was testimony that Trooper Lombardo acted as he did to ensure Ms. Justice's safety, and that ensuring her safety was part of his job as a PSP trooper, the evidence also indicated that Trooper Lombardo never tried to remove Carter from the roadside, and never directed him to get into the patrol car. Even assuming arguendo that using handcuffs to ensure the safety of individuals peacefully awaiting a ride is something Trooper Lombardo is employed to do, the jury could have inferred from the evidence that Trooper Lombardo would have acted to secure Carter as well if Trooper Lombardo were indeed acting in furtherance of those concerns, as opposed to acting out of personal animus.
Similarly, as discussed supra, Trooper Lombardo offered the testimony of a PSP representative that a trooper should not leave a motorist whose vehicle has been towed on the side of the roadway. Notably, this assertion does not take into account the evidence that Ms. Justice specifically refused Trooper Lombardo's "offer" of transportation because, at Trooper Lombardo's suggestion, she had arranged for private transportation. Again, assuming arguendo that the jury believed that Trooper Lombardo would have been irresponsible to leave Ms. Justice on the embankment behind the Jersey barrier, it could nonetheless have concluded that Trooper Lombardo's conduct was outside the scope of his employment because Ms. Justice expressly took responsibility for arranging her safe transport and that she was entitled to do so.
Second, the jury was free to conclude, upon viewing and hearing Carter's cell phone footage, that Ms. Justice would have struggled to safely cross back over the barrier to get into Trooper Lombardo's car with her hands cuffed behind her back. See also N.T., 3/11/2016, at 149-50 (wherein Trooper Lombardo characterizes the concrete barrier as "three, three-and-a-half feet [tall] maybe" and "kind of wide"). Such an inference would further undermine Trooper Lombardo's testimony that his conduct was actuated for the purpose of making Ms. Justice safe.
Third, and perhaps most significantly, on Carter's cellphone video and in testimony, Trooper Lombardo referred to Ms. Justice using language that suggested personal animus. After wrestling her arms into handcuffs behind her back and in response *1076to her calling out in pain and asking him to stop, Trooper Lombardo's response was to tell Ms. Justice to "stop acting like an animal." N.T., 3/11/202016, at 76; see also Justice's Exhibit 1. Furthermore, Trooper Lombardo testified that Ms. Justice cursed him "up and down" when she got out of her car and characterized her behavior as "a disgrace, especially coming from a woman," adding that he "was taken back by it." Id. at 114. Even if the jury believed that Ms. Justice cursed at Trooper Lombardo,
Trooper Lombardo argues that "nothing [he] did on the day in question qualifies as legally 'outrageous'," as in Howard . Lombardo's Brief at 41. As discussed, unlike in Howard , this is not a case that requires (or allows for) resolution as a matter of law. We do not hold that the evidence here "admitted of no inference" other than the jury's. Rather, we hold that it was not determinable, as a matter of law, that Trooper Lombardo's use of force was within the scope of his employment; and there was sufficient, competent evidence, consistent with the law, upon which the jury could find that his conduct was outside the scope of his employment. Although there are cases, such as Howard , where we have found conduct so outrageous that it falls outside the scope of employment as a matter of law, we have also allowed a jury to conclude based on the evidence that arguably outrageous conduct was nonetheless within the scope of employment. See, e.g. , Orr ,
As discussed, the Commonwealth Court misstated the law in holding that reasonableness and motive are irrelevant to the scope of employment inquiry in this matter. Both are plainly relevant and, based on this record, reasonable minds could have concluded that Trooper Lombardo's conduct was actuated in such a manner so as to evince entirely personal motives rather than a professional purpose, substantiating further the jury's conclusion that he acted outside the scope of his employment. See Moure ,
In light of the standards governing scope of employment, it is beyond peradventure that the conflicting evidence adduced at trial presented questions of fact to be resolved by the jury and that various inferences could be drawn from those *1077facts. See Orr ,
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Wecht join the opinion.
Justice Dougherty files a concurring opinion in which Justice Todd joins.
Justice Mundy files a dissenting opinion.
Notes
Ms. Justice initially filed a complaint naming both Trooper Lombardo and the PSP as defendants. In an amended complaint, she removed the PSP as a party. She also withdrew her prior averment that Trooper Lombardo was acting within the course and scope of his employment during their November 27, 2013 encounter.
Pursuant to administrative law governing the defense of suits against Commonwealth employees, "[r]egardless of the allegations made against the defendant, if it appears to the General Counsel ... that the defendant's conduct giving rise to the cause of action was within the scope of his employment and a good faith exercise of his authority, the Commonwealth, or its insurance company if there is coverage, will undertake the defense with an attorney of its choosing at its expense, and will indemnify the defendant for the expense of a judgment against him." 4 Pa. Admin. C. § 39.3(a). Trooper Lombardo would be entitled to indemnification by the Commonwealth for any judgment entered against him. See id. ; see also id. , § 39.13(c)(1) (regarding requests for indemnification).
Ms. Justice testified that she was unaware at the time she was pulled over that her license was suspended and that Trooper Lombardo informed her that it had been suspended due to a late payment on a ticket. N.T., 3/11/2016, at 70-71.
Although he advised Ms. Justice that he had pulled her over for a broken taillight, Trooper Lombardo issued Ms. Justice two tickets, one for driving without a license and another for failing to use a turn signal. Id. at 112.
This segment of footage, also admitted into evidence, was one minute and thirty-three seconds long.
Carter can be heard asking Trooper Lombardo "What's she getting arrested for? Why can't we stand here? [and] ... Why [do] you care about what's she's doing now?" See Justice's Exhibit 1.
Trooper Lombardo objected to the last sentence of this scope of employment instruction. N.T., 3/14/2016, at 61.
Because the Commonwealth Court granted JNOV, it did not reach the issues raised regarding Trooper Lombardo's motion for a new trial. Justice ,
As further basis for a new trial, Trooper Lombardo claimed the trial court erred by requiring Trooper Lombardo to follow Ms. Justice's lawyer's request to read out loud into evidence sections of the Philadelphia Police Department Citizen Information Bulletin Number 2 concerning Live Stops in Philadelphia; by not using the Standard Pennsylvania Practice jury instruction on scope of employment that he had submitted, replacing it instead with a jury instruction that he argued misstated applicable law and was misleading; by affirming an award of damages so excessive that it appears to have been based on prejudice or passion; and by instructing the jury that a minimum of six of eight jurors must agree on their answers to each question. Trial Court Opinion, 12/6/2016, at 3-4. We observe that while the trial court concluded that Trooper Lombardo had waived any challenge to the scope of employment instruction by failing to object to it during a sidebar discussion after the court had charged the jury, id. at 14, Trooper Lombardo's attorney did in fact object to the final sentence of the scope of employment instruction. See supra , note 7.
Unlike local agency employees, governed by the Political Subdivision Tort Claims Act, 42 Pa.C.S. §§ 8541 -8560, the Commonwealth Court has held that Commonwealth employees retain sovereign immunity protection even for claims of alleged willful misconduct. Compare Renk v. City of Pittsburgh ,
The exceptions to sovereign immunity include: vehicle liability; medical-professional liability; care, custody, or control of personal property; Commonwealth real estate, highways, and sidewalks; potholes and other dangerous conditions; care, custody, or control of animals; liquor store sales; National Guard activities; and toxoids and vaccines. 42 Pa.C.S. § 8522(b)(1)-(9).
The jury instructions provided at trial in the case at bar included section 228(1) of the Restatement verbatim. Seesupra pp. 1064-65.
We observe at the outset that because all four prongs of section 228(1) must be satisfied for the conduct to be within the scope of employment, if a jury could reasonably find that any one of the four is not established, the conduct may be considered outside the scope of employment.
The alternative basis for the grant of a JNOV requires that "the evidence was such that no two reasonable minds could disagree" that the verdict should have been entered by the jury in favor of Trooper Lombardo. Seesupra p. 1069. Given the highly divergent evidence of the encounter between the parties, this basis is facially inapplicable.
In pertinent part, section 508 of the Crimes Code provides:
(a) Peace officer's use of force in making arrest.--
(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
(2) A peace officer making an arrest pursuant to an invalid warrant is justified in the use of any force which he would be justified in using if the warrant were valid, unless he knows that the warrant is invalid.
18 Pa.C.S. § 508(a).
In an approach similar to the Commonwealth Court's, the Dissent posits that section 3102 of the Vehicle Code provides a basis for finding that Trooper Lombardo acted within the scope of his employment when he wrestled and handcuffed Ms. Justice. Dissenting Op. at 1079-80. That provision relates to "obedience to authorized persons directing traffic." 75 Pa.C.S. § 3102(1). Trooper Lombardo was not directing traffic at any point after initially signaling Ms. Justice to pull over to the side of the highway. To the contrary, during the incident in question, his PSP vehicle was parked on the shoulder of the highway, Ms. Justice's car had already been towed, and he and Ms. Justice were standing off the highway behind the Jersey barrier, well beyond the flow of traffic. Accordingly, this provision has no bearing on Ms. Justice's refusal to comply with Trooper Lombardo's order or directive to get into his car and certainly does not bring his use of force within the scope of his employment as a matter of law.
Trooper Lombardo urges us to follow the federal district court's pronouncement in Ickes v. Grassmeyer ,
Furthermore, contrary to Trooper Lombardo's assertion that "it cannot be gainsaid" that Ms. Justice faced a threat to her safety, the jury was free to conclude otherwise based on the evidence, including the video evidence showing her protected position relative to vehicles on the highway. Specifically, the jury could have concluded that Ms. Justice and Carter were in a place of safety while behind the Jersey barrier. It was clear that they were standing at some distance from oncoming traffic and that both the shoulder area to the right of the driving lane and the concrete barrier separated them from the hazards of the highway. The jury could have likewise concluded that they would have been in that location for a brief period of time since the private transportation, arranged at Trooper Lombardo's suggestion, would momentarily arrive. This is what actually occurred.
Corporal Watford testified that the FRM "governs all of the rules we abide by." N.T., 3/11/2016, at 180.
On appeal to this Court, Trooper Lombardo contends:
His insistence that [Ms. Justice] and her stepson get away from the roadside was also intended to serve the [PSP]'s overriding interest in public safety, as was his effort to ensure that they were handcuffed before being driven by him, via police car, to a safer location to wait for their ride (given that [Ms. Justice] had refused to get into [Trooper Lombardo's] car voluntarily. Cf Commonwealth v. Livingstone ,, 644 Pa. 27 (2017) ("the role of police is not limited to the detection, investigation, and prevention of criminal activity. Rather, police officers engage in a myriad of activities that ensure the safety and welfare of our Commonwealth's citizens. Indeed we want to encourage such laudable activity"). 174 A.3d 609
Lombardo's Brief at 30. Trooper Lombardo's theory of overarching PSP interest in public safety does not address the underlying fact situation presented here: a citizen who is not under arrest, who is not suspected of any criminal activity and who refuses the officer's offer of assistance is forcibly wrestled into handcuffs for the purpose of involuntarily transporting her in an official vehicle to a PSP barracks. There is no attempt to connect the community caretaking doctrine as recognized in Livingstone to this scenario and none is readily apparent. Suffice it to say, Livingstone does not stand for the proposition that a police officer can force assistance on an unwilling, competent citizen.
We note that on the video, following Trooper Lombardo's command to "stop acting like an animal," he can be heard saying "and talk to me. I say get over here, where's your ride. You tell me f -you, f-this. I said get in my car." See Justice's Exhibit 1.
The Dissent suggests that our decision will "introduce a chilling effect on troopers performing their duties." Dissenting Op. at 1081. We are confident that the Dissent's prediction will not ensue from our decision which states the obvious - there are limits to a trooper's scope of employment. Under our civil justice system, when the evidence is conflicting as to the circumstances of an encounter as it was in this case, the question is for the jury to decide.
Concurrence Opinion
I fully join the majority opinion, which reinforces the critical function of the jury. I write separately to acknowledge the importance of sovereign immunity within the context of police work, and distinguish the instant case from circumstances necessitating such protection.
By nature of their employment in law enforcement, the state police necessarily insert themselves into perilous situations where their role is to minimize, if not eliminate, threats of harm to the public safety. State troopers regularly encounter environments rife with the potential for injury to others, including suspected perpetrators and bystanders, and to themselves, which they unquestionably must balance against the potential for greater danger to the public when they take action in such environments. As officers make expedited decisions based on a split-second calculus weighing a myriad of risks, the assertion of authority, oftentimes accompanied by the use of force, is a day-in, day-out necessity of the occupation.
In such situations, sovereign immunity rightfully prevents the threat of personal liability from factoring into these critical moments of decision-making. By protecting police officers from personal liability for certain acts of force, the immunity affords police modest flexibility to make instantaneous judgment calls. The immunity likewise protects the public from officers that hesitate to take necessary action in the face of a safety threat while they deliberate over the threat of liability. Due to the dire consequences of an officer's hesitation when circumstances require immediate, decisive action, in my view, the use of force by police in such situations is generally expectable, within the scope of employment, and among the most essential government activities provided immunity.
However, I do not advocate for an absolute immunity to protect bad acts even though they may be committed by on-duty police officers. While an emergent situation necessitating an instantaneous judgment call may typically yield an expectable use of force in the interest of public safety, such circumstances do not appear to be within the facts of the case before us.
On review of Trooper Lombardo's conduct, as depicted by the cellphone footage taken by Ms. Justice's stepson and viewed by the jury, it is evident there is no temporal link between Trooper Lombardo's use of force upon Ms. Justice - pushing her against a barrier and twisting her arm behind her in a visibly painful manner prior to handcuffing her - and any perceivable threat to her safety, to her stepson's safety, or to the safety of other motorists. She had already exited her vehicle, *1078removed herself from the expressway, and climbed over the Jersey barriers to a protected embankment. In addition, the footage reveals Trooper Lombardo clearly stating, "I changed my mind," in response to Ms. Justice's inquiry about why she had to exit her car for towing after she had already enlisted the assistance of friends to remove it at Trooper Lombardo's direction. The jury may well have perceived from Trooper Lombardo's statement that he had time to reconsider his chosen course of action, notably to one that removed Ms. Justice to the very location he later deemed necessary to remove her from for her safety. The cellphone footage additionally supports a finding Trooper Lombardo stepped outside his authority because, despite his allegations of Ms. Justice's profanity and any intimations her behavior might support an arrest for disorderly conduct, see N.T. 3/11/16 at 113-14, 116-17, he restrained and handcuffed her, but did not charge her.
In my view, where, as here, the use of force by a police officer is attenuated from any imminent threat to safety and not incident to an arrest, such force may be considered "unexpectable," and is less likely to fall within the scope of employment.
Nevertheless, the majority does not hold Trooper Lombardo's conduct was, as a matter of law, personally motivated, or comprised the use of unexpected force. Rather, as the majority explains, those questions were properly put to the jury. The evidence reasonably supported the jury's conclusion Trooper Lombardo acted outside the scope of his employment.
Justice Todd joins this concurring opinion.
[F]or practical purposes under Pennsylvania law, there are two ways to overcome sovereign immunity. First, the legislature has waived sovereign immunity by statute in nine specific areas.
Sarin v. Magee ,
Dissenting Opinion
I agree with the Commonwealth Court that Trooper Lombardo was acting within the scope of his employment and was immune from liability under the doctrine of sovereign immunity. Because I would affirm the Commonwealth Court's judgment, I respectfully dissent.
As noted by the Majority, the application of the Restatement (Second) of Agency (1958), which we have adopted for analysis of the question of scope of employment issues in the vicarious liability context, is an "awkward" fit in the sovereign immunity context. See Majority Op. at 1067-68. Sovereign immunity issues implicate potentially distinct separation of powers and jurisdictional concerns.
The constitutionally-grounded, statutory doctrine of sovereign immunity obviously serves to protect government policymaking prerogatives and the public fisc. To a degree, it has been tempered to recognize the rights and interests of those who may have been harmed by government actors .... Understandably, some immunity applications may be distasteful to those who may discern government wrongdoing .... In light of the constitutional basis for the General Assembly's allocation of immunity, however, the area implicates the separation of powers among the branches of government also crafted by the framers. Thus, in absence of constitutional infirmity, courts are not free to circumvent the Legislature's statutory immunity directives pertaining to the sovereign.
Scientific Games Int'l., Inc. v. Com. ,
The Legislature has re-avowed the Commonwealth's sovereign immunity, subject only to certain specific enumerated exceptions not applicable here.
§ 2310. Sovereign immunity reaffirmed; specific waiver
Pursuant to section 11 of Article 1 of the Constitution of Pennsylvania, it is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties , shall continue to enjoy sovereign immunity and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity....
Pa.C.S.A. § 2310 (emphasis added). It is not contested that State Police troopers are employees protected by sovereign immunity. See La Frankie v. Miklich ,
As expressed by the Commonwealth Court and the Majority, Section 228 of the Restatement defines when an employee's conduct is within the scope of his or her employment.
(1) Conduct of a servant 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 master, and
(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.
(2) Conduct of a servant 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.
Restatement (Second) of Agency § 228 (1958).
The Commonwealth Court reviewed the evidence in the case, adhering to its standard of review of a trial court's denial of a motion for JNOV. Justice v. Lombardo ,
There is no dispute, that Trooper Lombardo was authorized to stop Ms. Justice and cite her for violations of the Vehicle Code. Additionally, Ms. Justice's conduct in operating the vehicle with a suspended driver's license created a traffic safety hazard in that the removal of her vehicle from a busy limited access highway was necessitated. Under the Vehicle Code, police officers are authorized to direct traffic, and individuals of the public are obligated to obey lawful orders and directions by such officers. See 75 Pa.C.S. §§ 3102, 3111.
While there concededly are conflicting accounts regarding the manner in which Trooper Lombardo performed his duties, these disparities in narratives do not implicate the scope of employment at issue in this case. It is true that authorized conduct by an employee may be outside the scope of employment if entirely motivated to serve a private end. "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." Restatement (Second) of Agency § 235 (1958). However, where, as here, such intent must be discerned from the actions themselves and "the servant ... does the kind of act which he is authorized to perform within working *1081hours and at an authorized place, there is an inference that he is acting within the scope of employment ."
Under these facts, viewed in the light most favorable to Ms. Justice, the Commonwealth Court correctly concluded there was no factual dispute that the four scope-of-employment elements of Section 228 of the Restatement had been met.
The Majority characterizes the Commonwealth Court's conclusion, that as long as a trooper's use of force is incidental to authorized conduct it is within the scope of employment, as "expansive." Maj. Op. at 1070-71. To the contrary, I believe the Commonwealth Court's conclusion is consistent with the language of Section 228 of the Restatement, which requires only that actions be authorized and performed "at least in part" in the service of the employer's purpose. Rather, it is the Majority that undermines the reach of sovereign immunity by reducing scope-of-employment inquiries to jury questions on the wisdom and propriety of a state trooper's decisions in the performance of his or her duties. The Majority and Concurrence skew the focus from the connection between a trooper's action and his or her authorized duty, to an examination into subjective motive, wisdom, necessity, and ultimate effect of those actions.
The consequence of the Majority's decision today will be to introduce a chilling effect on troopers performing their duties. Rather than strictly construing limitations on exceptions to sovereign immunity, the Majority broadly construes a jury's role in determining what circumstances may be considered outside the scope of employment based on little more than subjective allegations of private motivations on the part of a trooper in the performance of his or her duties. In doing so, the Majority undermines the role of the legislature in defining the extent to which sovereign immunity shall apply.
Accordingly, I respectfully dissent.
I recognize the use of profanity, on its own, would not sustain a charge of disorderly conduct, which additionally requires an intent to cause public inconvenience, annoyance or alarm, or the reckless creation of a risk. See 18 Pa.C.S. § 5503.
The Vehicle Code provides:
§ 3102. Obedience to authorized persons directing traffic
No person shall willfully fail or refuse to comply with any lawful order or direction of:
(1) any uniformed police officer, sheriff or constable or, in an emergency, a railroad or street railway police officer[.]
75 Pa.C.S. § 3102(1).
§ 3111. Obedience to traffic-control devices
(a) General rule.--Unless otherwise directed by a uniformed police officer or any appropriately attired person authorized to direct, control or regulate traffic, the driver of any vehicle shall obey the instructions of any applicable official traffic-control device placed or held in accordance with the provisions of this title, subject to the privileges granted the driver of an emergency vehicle in this title.
The Majority and Concurrence make much of the fact that Ms. Justice was behind the Jersey barriers at the time Trooper Lombardo requested her to enter his patrol car, and that the citations occasioning the initial stop had been issued. Maj. Op. at 1071, 1072 n. 16. Neither of these circumstances is relevant to the inquiry. Trooper Lombardo would not have been obligated to remain on the scene after the tow truck removed the vehicle, in order to accommodate Ms. Justice's wish to wait for the arrival of the people she had asked to provide her transportation. Additionally, leaving her unaccompanied and without the emergency lights of his vehicle at the scene for her to await pickup on I-76, a busy, limited-access highway where pedestrians are prohibited would have been problematic. His direction to her to enter his vehicle for transportation to a place of safety was authorized and served the safety mission of his employer. Ms. Justice's refusal was contrary to Section 3102 of the Vehicle Code. That she was not ultimately cited for her refusal, is also immaterial.
The Restatement identifies additional criteria for determining when unauthorized actions may nevertheless be deemed within an employee's scope of employment. See Restatement (Second) of Agency § 229 (1958) (enumerating factors for consideration when an action is unauthorized but may be of the same nature as an authorized action);