.

Defense Digest

Handing Over the Public’s Purse: Political Subdivision Employees, Indemnification and Assignments

Defense Digest, Vol. 27, No. 5, December 2021

December 1, 2021

by 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. 

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.

 

Defense Digest, Vol. 27, No. 5, December 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.

Firm Highlights

News

106 Marshall Dennehey Attorneys Recognized in the 2027 Editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America

Marshall Dennehey is proud to highlight the firm’s 106 attorneys who have been recognized in the 2027 editions of The Best Lawyers in America® and the Best Lawyers: Ones to Watch® in America. Less than 6% of all practicing lawyers in the U.S. were selected by their peers for this recognition. Additionally, four of the firm’s attorneys received the Best Lawyers® 2027 “Lawyer of the Year” awards in their respective practice areas and demographic regions. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. For more information, please visit https://www.bestlawyers.com/. OUR 2027 LAWYERS OF THE YEAR Harrisburg, PA Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers Compensation Law - Employers Roseland, NJ Justin F. Johnson, Medical Malpractice Law - Defendants Leonard Leicht, Personal Injury Litigation - Defendants   OUR 2026 BEST LAWYERS IN AMERICA Philadelphia, PA Nicholas D. Bowers, Personal Injury Litigation - Defendants Josh J. T. Byrne, Professional Malpractice Law - Defendants Jefferey J. Chomko, Insurance Law James H. Cole, Insurance Law John J. Delany III, Personal Injury Litigation - Defendants Laurianne Falcone, Personal Injury Litigation - Defendants John P. Gonzales, Employment Law - Management John Hare, Appellate Practice Daniel D. Krebbs, Personal Injury Litigation - Defendants Michele Punturi, Workers' Compensation Law - Employers Bradley D. Remick, Product Liability Litigation - Defendants Andrea Cicero Rock, Workers' Compensation Law - Employers Robin M. Romano, Workers' Compensation Law - Employers Daniel J. Ryan, Jr., Personal Injury Litigation - Defendants Gary M. Samms, Professional Malpractice Law - Defendants Christopher N. Santoro, Personal Injury Litigation – Defendants; Product Liability Litigation -Defendants Josh D. Scheets, Personal Injury Litigation - Defendants Robert P. Schenk, Workers' Compensation Law - Employers Robert E. Smith, Insurance Law Robin Snyder, Litigation - Health Care Michael L. Turner, Commercial Litigation; Criminal Defense: White-Collar; Mass Tort Litigation / Class Actions - Defendants Claire Breaux Ventola, Product Liability Litigation - Defendants Pittsburgh, PA Melissa Devich Cochran, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants  John F. Deasy, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Daniel W. Deitrick, Workers' Compensation Law - Employers Douglas C. LaSota, Litigation - Construction; Mass Tort Litigation / Class Actions - Defendants Joseph V. Lesinski, Product Liability Litigation – Defendants   Christian D. Marquis, Personal Injury Litigation - Defendants Patricia A. Monahan, Insurance Law; Litigation - Insurance Patrick T. Reilly, Commercial Litigation; Mass Tort Litigation / Class Actions – Defendants; Product Liability Litigation - Defendants Brett C. Shear, Medical Malpractice Law - Defendants Teresa O. Sirianni, Education Law; Employment Law – Management; Litigation - Labor and Employment Stuart Sostmann, Product Liability Litigation – Defendants Danielle M. Vugrinovich, Mass Tort Litigation / Class Actions - Defendants Scranton, PA Sarah E. Argo, Litigation - Insurance Michael J. Connolly, Personal Injury Litigation – Defendants; Professional Malpractice Law - Defendants Matthew Keris, Litigation - Health Care; Medical Malpractice Law - Defendants John T. McGrath, Jr., Insurance Law; Medical Malpractice Law – Defendants; Product Liability Litigation - Defendants William J. McPartland, Insurance Law John R. Nealon, Product Liability Litigation - Defendants Victoria Scanlon, Health Care Law; Litigation - Health Care; Medical Malpractice Law - Defendants Michael A. Sebastian, Workers' Compensation Law - Employers Thomas A. Specht, Insurance Law; Litigation - Insurance Suzanne Tighe, Litigation Insurance Harrisburg , PA Casey Alan Coyle, Administrative/Regulatory Law; Appellate Practice; Commercial Litigation Brittany E. Bakshi, Personal Injury Litigation - Defendants Shannon P. Fellin, Workers' Compensation Law - Employers Allison Krupp, Insurance Law John R. Ninosky, Litigation – Insurance; Personal Injury Litigation - Defendants Christopher Reeser, Personal Injury Litigation - Defendants Kacey Wiedt, Workers' Compensation Law – Employers King of Prussia, PA  Michael L. Detweiler, Construction Law Joseph L. Hoynoski III, Medical Malpractice Law - Defendants Gregory J. Kelley, Construction Law, Litigation - Construction Anthony Natale III, Workers' Compensation Law - Employers Francis X. Wickersham, Workers' Compensation Law - Employers A. Judd Woytek, Workers' Compensation Law – Employers Erie, PA Patrick M. Carey, Personal Injury Litigation - Defendants Joel M. Snavely, Health Care Law; Insurance Law New Haven, CT Michael Wrona, Commercial Litigation, Litigation - Bankruptcy  Mount Laurel, NJ David D. Blake, Litigation - Insurance Barbara Davis, Personal Injury Litigation - Defendants Lynne Nahmani, Litigation - Health Care John H. Osorio, Personal Injury Litigation - Defendants John L. Slimm, Legal Malpractice Law – Defendants; Professional Malpractice Law – Defendants Roseland, NJ Robert T. Evers, Medical Malpractice Law - Defendants Justin F. Johnson, Medical Malpractice Law - Defendants Julia Klubenspies, Medical Malpractice Law - Defendants Leonard C. Leicht, Personal Injury Litigation - Defendants Patricia M. McDonagh, Appellate Practice Sunny Sparano, Litigation - Construction Randall S. Watts, Health Care Law New York, NY Tonya M. Lindsey, Medical Malpractice Law - Defendants Tampa, FL Michael Archibald, Personal Injury Litigation - Defendants Lindsay G. McCormick, Litigation – Construction Orlando, FL Thomas F. Brown, Personal Injury Litigation - Defendants Dante C. Rohr, Commercial Litigation Fort Lauderdale, FL Kimberly Kanoff Berman, Appellate Practice Patrick M. Delong, Personal Injury Litigation – Defendants Jacksonville, FL  Heather Byrer Carbone, Workers' Compensation Law - Employers Linda Wagner Farrell, Workers' Compensation Law - Employers Elizabeth B. Ferguson, Litigation - Construction James P. Hanratty, Personal Injury Litigation – Defendants Wilmington, DE Sarah B. Cole, Litigation - Insurance Benjamin K. Durstein, Workers' Compensation Law - Employers Maria R. Granaudo, Medical Malpractice Law - Defendants  Keri L. Morris-Johnston, Workers' Compensation Law - Employers Cincinnati, OH Timothy B. Schenkel, Personal Injury Litigation - Defendants David E. Williamson, Personal Injury Litigation - Defendants Cleveland, OH Vincent E. Cononico, Litigation – Insurance, Personal Injury Litigation - Defendants Jillian L. Dinehart, Personal Injury Litigation - Defendants David J. Fagnilli, Insurance Law Jason P. Ferrante, Health Care Law, Litigation - Health Care Andrew H. Isakoff, Transportation Law Leslie M. Jenny, Litigation - Health Care; Medical Malpractice Law – Defendant OUR 2026 BEST LAWYERS: ONES TO WATCH Jacksonville, FL Sean J. Reeves, Personal Injury Litigation – Defendants; Product Liability Litigation - Defendants Orlando, FL Carolin A. Pacheco, Insurance Law Mount Laurel Stacey Gorin, Insurance Law Melville, NY Kimberly Gitlin, Personal Injury Litigation – Defendants Matthew A. Gray, Insurance Law; Personal Injury Litigation - Defendants Philadelphia, PA Holli K. Archer, Health Care Law; Medical Malpractice Law – Defendants; Professional Malpractice Law Emily Pritchyk, Commercial Litigation; Product Liability Litigation – Defendants Pittsburgh, PA Taylor E. Kosko, Mass Tort Litigation / Class Actions – Defendants; Personal Injury Litigation - Defendants Alana Staniszewski, Workers' Compensation Law - Employers Michael D. Winsko, Product Liability Litigation – Defendants; Transportation Law King of Prussia, PA Richard Lechette, Commercial Litigation; Insurance Law, Personal Injury Litigation – Defendants

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Pennsylvania Superior Court Reaffirms Liberal Pleading Standard in Medical Malpractice Actions

Legal Roundup: Pennsylvania The Pennsylvania Superior Court has reinforced a broader fact-pleading approach that may make it more difficult for health care defendants to obtain dismissal at the preliminary objection stage. In DaSilva v. Abington Memorial Hospital, the court held that the plaintiffs’ second amended complaint satisfied Pennsylvania’s fact‑pleading requirements despite the absence of individually named negligent actors. In DaSilva, the plaintiffs filed a second amended complaint alleging that Abington Memorial Hospital was directly and vicariously negligent after the patient, who was experiencing a mental health crisis, was left unattended by hospital staff, exited the emergency department, and was struck by a vehicle, suffering serious injuries. The trial court sustained the hospital’s preliminary objections and dismissed the complaint with prejudice, stating plaintiffs “failed to plead any material factual allegations in support of their claims of negligence [and] set forth vague allegations of negligence and unidentified agency.” Id. at *5. The plaintiffs appealed. On appeal, the Superior Court reversed, holding that the complaint sufficiently pled negligence and vicarious liability claims under Pa.R.C.P. 1019(a). The court concluded that allegations describing the patient’s condition, the hospital’s awareness of that condition, and the alleged failure to monitor or prevent elopement were adequate to satisfy Pennsylvania’s pleading requirements. Significantly, the court rejected the hospital’s argument that the complaint failed because it did not identify the specific employees responsible for the alleged negligence. Instead, the court found that generalized references to “emergency room staff” were sufficient to place the hospital on notice of the claims because “the names of those who performed services for the plaintiff are known to the defendant or can be ascertained during discovery.” Id. at *12 (citing Est. of Denmark ex rel. Hurst v. Williams, 117 A.3d 300, 307 (Pa. Super. 2015)). The effect of DaSilva is that plaintiffs may proceed past the pleading stage with relatively generalized allegations, particularly in cases involving institutional defendants where relevant details are uniquely within the defendant’s control. As a result, health care defendants should anticipate that challenges to claim sufficiency may be resolved in the later stages of litigation, including discovery and summary judgment.

Thought Leadership

The Ohio Supreme Court Extends Sham-Affidavit Rule to Contradictory Expert Reports

Legal Roundup: Ohio In its June 23, 2026, decision in Moore v. Mercy Medical Center, the Ohio Supreme Court upheld a trial court’s decision to strike an expert witness’s affidavit that contradicted the opinions expressed in the expert’s prior report. This case pertains to allegations of medical malpractice after plaintiff Cheri Moore gave birth to an infant in respiratory distress who required intubation. Moore alleged that a delay in ordering an emergency cesarean section resulted in the need for intubation, causing her child’s injuries. Specifically, Moore sued Dr. Meniru, who completed his first shift at 7:00 a.m. on May 28, 2015, and did not resume treating Moore until 7:00 a.m. on May 29, 2015. One of Moore’s expert witnesses authored a report stating that the doctors, including Dr. Meniru, deviated from the standard of care by not advocating for a cesarean section in the evening of May 28, 2015. Based on this report, Dr. Meniru moved for summary judgment, arguing that the alleged breach occurred during a period when he was not on duty. In response to the summary judgment motion, the plaintiff filed an affidavit from the same expert. Although the expert expressly incorporated his previous report into his affidavit, he also offered an additional opinion: that Dr. Meniru breached the standard of care by failing to begin a cesarean section within 30 minutes of receiving reports of fetal distress. Dr. Meniru filed a motion to strike the expert’s affidavit, arguing that it contradicted the opinions set forth in his prior report in violation of the sham-affidavit rule. The sham-affidavit rule applies to “a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story, or is willing to offer a statement solely for the purpose of defeating summary judgment”. Moore, supra, at ¶ 19, citing Pettiford v. Aggarwal, 126 Ohio St.3d 413, 2010-Ohio-3237. The trial court granted both the motion to strike and the motion for summary judgment, and the Fifth District affirmed. The Ohio Supreme Court accepted two questions of law: (1) whether the sham-affidavit rule applies when the sworn testimony contradicts prior unsworn statements; and (2) whether an inconsistency within the affidavit goes to credibility or admissibility, justifying an order striking the affidavit. Previous rulings by the Ohio Supreme Court regarding the sham-affidavit rule have pertained to contradictions between an affidavit and sworn deposition testimony. See, e.g., Byrd v. Smith, 2006- Ohio-3455, 110 Ohio St.3d 24, 850 N.E.2d 47. However, here, the Court was asked to apply the same rule to contradictions between a sworn affidavit and an unsworn expert report. The Court held that, because Moore’s expert incorporated his prior report into his affidavit, he effectively adopted the report as part of his sworn testimony.