Joshua W. Brownlie

Key Points:

• The Pennsylvania Supreme Court is to decide whether a third-party assignee of political subdivision employee’s indemnification rights have standing to enforce indemnification pursuant to the Political Subdivision Tort Claims Act (PSTCA); and
• whether a federal determination that a political subdivision employee acted “under color of state law” in the Section 1983 context estops state court litigation of whether conduct was “within the scope of his office or duties” under the PSTCA. 

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The Pennsylvania Supreme Court recently granted allocator in McGuire on Behalf of Neidig v. City of Pittsburgh, No. 177 WAL 2021, 2021 WL 5320893, at *1 (Pa. Nov. 16, 2021). There, the court will refine the contours of the employee indemnification provision of the Political Subdivision Tort Claims Act (PSTCA), see 42 Pa. C.S. § 8545(a), by deciding whether a federal jury determination that a police officer acted “under color of state law” is a “judicial determination” that the officer acted within the “scope of his office or duties” under the PSTCA. The court will also address whether “the criteria for indemnification under the [PSTCA must] be judicially determined in the damages action brought against the employee[.]” As well as, “[i]n a declaratory judgment action brought by an employee, is the issue of whether the criteria for indemnification under the [PSTCA] were ‘judicially determined’ in the underlying action for damages a question of law for the court to decide?” Id. The decision is likely to involve precedential interpretations of Sections 8547 through 8550 of the PSTCA. In addition, since most federal actions involving political subdivisions are brought pursuant to Section 1983 of the United States Code, the court is expected to clarify what effect federal, judicial determinations in the Section 1983 context will have on subsequent proceedings involving indemnification pursuant to the Act.

In McGuire, Colby Neidig fell victim to neighborhood vandalism. He arrived home with his wife and child to find the family’s fall pumpkins smashed. Unbeknownst to Neidig, the culprits of the vandalism, 16-year-old Shane McGuire and friends, also stacked bricks in an area close to the front door. McGuire remained on the property to observe the Neidigs’ reaction to the vandalism. After Neidig and his wife finished unloading their groceries, McGuire approached the residence and banged on the front door. While turning to flee, McGuire tripped and fell over the bricks he had stacked near to the front door of the residence. Neidig’s wife screamed, and Neidig, seeing McGuire attempting to flee, gave chase. Neidig caught McGuire a short distance from the home, at which time, Neidig knocked McGuire to the ground and punched him in the face. Neidig called 911 and detained McGuire until police arrived.

McGuire later learned that Mr. Neidig was, in fact, Officer Neidig, of the Pittsburg Bureau of Police. However, on the night in question, Neidig was off-duty, wearing civilian clothes, and did not identify himself to McGuire as a police officer.

Two years later, in November of 2014, McGuire filed suit in federal district court against Neidig in his individual capacity as a police officer, as well as the City of Pittsburgh. McGuire asserted claims of excessive force in violation of Section 1983 of the United States Code, as well as state law assault and battery claims. The district court granted the City’s motion for summary judgment and dismissed the City from the case. See McGuire v. City of Pittsburgh, No. CV 14-1531, 2016 WL 6561457, at *1 (W.D. Pa. Nov. 3, 2016). Thereafter, a jury found against Neidig on the assault and battery claims and also concluded he had violated McGuire’s constitutional rights under Section 1983. The jury specifically found Neidig acted “under color of state law” when he injured McGuire. In total, the federal jury awarded McGuire $235,575 in damages and fees.

Presumably judgment proof, Neidig assigned to McGuire his right to bring legal action against the City of Pittsburgh for indemnity under the PSTCA. Pursuant to the Act, if it is “judicially determined” that an act of a political subdivision’s employee “caused the injury,” and the action was “within the scope of his office or duties” or “the employee in good faith reasonably believed that such act was[ ] within the scope of his office or duties[,]” then the political subdivision “shall indemnify the employee for the payment of any judgment on the suit.” See 42 Pa. C.S. § 8548(a).

In July of 2017, McGuire filed an action in the Allegheny County Court of Common Pleas for declaratory relief, alleging the City’s failure to comply with its statutory obligation under the PSTCA to indemnify Neidig following the federal district court’s award. A three-day jury trial was held in August of 2019, at the conclusion of which the jury found in the City’s favor and against McGuire, concluding Neidig had not acted “within the scope of his duties” when he struck McGuire.

Dissatisfied, McGuire appealed to the Commonwealth Court. See McGuire on behalf of Neidig v. City of Pittsburgh, 50 A.3d 516 (Pa. Commw. Ct. 2021), reargument denied (May 3, 2021). There, following denial of McGuire’s application to strike, the City challenged McGuire’s standing to pursue indemnification under the PSTCA, arguing the exceptions to governmental immunity set forth in the Act are strictly construed and, since the Act permits indemnification for municipal employees, a non-employee may not seek indemnification. The court rejected the argument. Relying on a federal district court analogue, the court held “[t]here is nothing in the Tort Claims Act prohibiting an assignment of rights[,]” that McGuire had perfected a valid assignment from Neidig, and Neidig’s assignment “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.’” Id. at 531 (quoting Wiehagen v. Borough of N. Braddock, 522, 594 A.2d 303, 306 (Pa. 1991)). Therefore, the court concluded, McGuire had standing to pursue the indemnification claim.

Next, McGuire argued the federal determination that Neidig injured him while acting “under color of state law” collaterally estops the City from litigating the issue of whether Neidig was acting “within the scope of his office or duties” as a City police officer. The court also rejected this argument and held the City was not estopped from asserting Neidig acted beyond the scope of his employment. The panel noted, “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.”[1] Turning then to federal jurisprudence, the panel emphasized that “acting ‘under color of state law’ and acting ‘within the scope of employment[,]’ while comparable[,] are not the same.” See McGuire on behalf of Neidig, 250 A.3d at 534 (citations omitted). The panel explained that federal courts have rejected invitations to find a policer officer acted “within the scope of his office or employment” merely because the officer acted under color of Pennsylvania law. Id. (citing Zion v. Nassan, 283 F.R.D. 247, 267 (W.D. Pa. 2012), aff’d, 556 F. App’x 103 (3d Cir. 2014)). Indeed, an employee may engage in conduct “under the color of state law,” even if the conduct exceeds the limit of authority granted by the state. In contrast, when an employee assaults another person for personal reasons or in an outrageous manner, the employee is not actuated by an intent to perform the business of the employer and, therefore, acts outside the scope of employment. Accordingly, the panel found no error in the trial court’s determination that the City was not collaterally estopped from asserting that Neidig acted beyond the scope of his employment when he injured McGuire.

Finally, McGuire asserted the trial court erred when it denied indemnification absent a judicial determination in the federal court action that Neidig committed willful misconduct. Under the PSTCA, an employee of a political subdivision is not entitled to indemnification when he is found to have committed willful misconduct. See 42 Pa. C.S. § 8550. However, the panel determined it need not reach the issue of willful misconduct because the state jury properly determined that Neidig acted beyond the scope of his employment. Ultimately, the Commonwealth panel affirmed the trial court’s denial of the parties’ post-trial motions.

McGuire will have a significant impact on the indemnification provision of the PSTCA. Although briefs have yet to be submitted and argument has not yet been scheduled, if the Court’s decision in Renk v. City of Pittsburgh is any indication of how the Court will come out, similar to our federal counterparts, the Justices are sure to hold that a federal jury determination that a police officer acted “under color of state law” is not a “judicial determination” that the officer acted within the “scope of his office or duties” under the PSTCA. See Renk v. City of Pittsburgh, 641 A.2d 289, 293-94 (1994) (holding, although “willful misconduct” is synonymous with “intentional tort,” federal determination of police officer’s lability for tortious conduct consisting of assault, battery and false imprisonment, is not the equivalent of a judicial determination of “willful misconduct” sufficient to preclude indemnification under the PSTCA; “It is conceivable that a jury could find a police officer liable for those torts under circumstances which demonstrate that the officer did not intentionally use unnecessary and excessive force[.]”); compare Id. at 294 (Montemuro, J., dissenting) (“[The Majority] bases this conclusion on the premise that appellant may not have intentionally committed these intentional torts. I am unable to join such a result for I believe a jury’s determination that an individual has committed the torts of assault, battery, and false imprisonment constitutes a judicial determination that the individual has committed willful misconduct because these torts are by definition intentionally committed and are clearly outside the scope of a police officer’s duties.”). Especially in the face of a state jury finding “that Neidig had not acted within the scope of his duties when he struck McGuire.” See McGuire on behalf of Neidig, 250 A.3d at 524. Nevertheless, today the wind blows warm. Tomorrow? Who knows? More to come.

*Joshua is an associate in our Philadelphia, Pennsylvania, office. He can be reached at 215) 575-2816 or JWBrownlie@mdwcg.com.

 

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