           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Douglas Ioven,                        :
                                      : No. 543 C.D. 2016
                         Appellant    : Argued: October 18, 2016
                                      :
                   v.                 :
                                      :
Chief Thomas Nestel                   :
and SEPTA                             :


BEFORE:     HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge (P.)


OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: November 30, 2016


            Douglas Ioven appeals from the November 17, 2015, order of the Court
of Common Pleas of Philadelphia County (trial court) that granted the motion for
judgment on the pleadings filed by Chief Thomas Nestel and Southeastern
Pennsylvania Transportation Authority (SEPTA) (together, Appellees) and dismissed
Ioven’s complaint with prejudice. We affirm.


            Nestel is the chief of police for SEPTA.        Ioven, a former SEPTA
employee, filed a complaint against Appellees alleging that Nestel published and
distributed to various law enforcement agencies, an Officer Safety Bulletin (Bulletin)
that contained false statements about Ioven. The Bulletin stated that Ioven had
pointed a loaded firearm at a pedestrian, did not have a permit to carry a concealed
weapon, and impersonated a police officer on several occasions. The complaint also
alleged that Nestel knew or should have known that the statements he made about
Ioven were false and that Nestel acted within the course and scope of his employment
when he made the statements. The complaint included claims against Nestel for
slander, defamation, libel, and intentional infliction of emotional distress.                 The
complaint also alleged that SEPTA was vicariously liable.                       Appellees filed
preliminary objections, and on August 5, 2015, the trial court sustained Appellees’
preliminary objections, in part, and dismissed the intentional infliction of emotional
distress claim.


              On October 2, 2015, Appellees filed a motion for judgment on the
pleadings, requesting that the trial court dismiss Ioven’s remaining claims based on
sovereign immunity. On November 17, 2015, the trial court granted Appellees’
motion for judgment on the pleadings and dismissed Ioven’s complaint with
prejudice. The trial court concluded that Ioven’s claims were barred under section
8522 of Judicial Code, commonly known as the Sovereign Immunity Act, 42 Pa. C.S.
§8522. This appeal followed.1


              Initially, Ioven claims he can demonstrate slander and defamation per se,
which bars Nestel from asserting sovereign immunity. We disagree.




       1
         Appellate review of an order granting a motion for judgment on the pleadings is limited to
determining whether the trial court committed an error of law or abused its discretion. Holt v.
Northwest Pennsylvania Training Partnership Consortium, Inc., 694 A.2d 1134, 1138 n.8 (Pa.
Cmwlth. 1997) (en banc). “The motion may be granted only where no material facts are at issue
and the law is clear that a trial would be a fruitless exercise.” Id.


                                                2
             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.”             SEPTA is a
Commonwealth agency for purposes of sovereign immunity.                    Nardella v.
Southeastern Pennsylvania Transportation Authority, 34 A.3d 300, 303 (Pa. Cmwlth.
2011). An employee of a Commonwealth agency such as Nestel, acting within the
scope of his employment, “is protected by sovereign immunity from the imposition of
liability for intentional tort claims.” La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa.
Cmwlth. 1992) (en banc).


             There are, however, nine exceptions to sovereign immunity, which are
set forth in section 8522(b) of the Judicial Code, 42 Pa. C.S. §8522(b).            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).


             Slander per se, defamation per se, and libel are not listed as exceptions
to sovereign immunity. Ioven does not allege that any of the nine exceptions to
sovereign immunity apply.        Therefore, Ioven’s claim is barred by sovereign
immunity.




                                           3
             Next, citing section 8550 of the Judicial Code, 42 Pa. C.S. §8550, Ioven
claims that immunity does not extend to acts constituting “actual malice” or “willful
misconduct.” See Renk v. City of Pittsburgh, 641 A.2d 289, 292 (Pa. 1994) (“[a]n
employee’s immunity does not extend to acts that are judicially determined to be
crimes, actual fraud, actual malice, or willful misconduct.”).     Ioven alleges that
Nestel committed intentional and willful misconduct when he knowingly created the
Bulletin accusing Ioven of crimes, which Nestel knew Ioven did not commit. Ioven
claims that Nestel cannot point to any criminal charges against Ioven to substantiate
the allegations in the Bulletin.


             As Appellees correctly argue, however, Commonwealth employees do
not lose their sovereign immunity protection for alleged claims of willful misconduct.
Kull v. Guisse, 81 A.3d 148, 154 n.5 (Pa. Cmwlth. 2013). Waiver of immunity only
applies to actions of local agency employees, not to Commonwealth employees,
where their actions constitute a crime, actual fraud, actual malice, or willful
misconduct. LaFrankie, 618 A.2d at 1149 n.4.


             Commonwealth employees do not lose their immunity for intentional
torts, provided they are acting within the scope of their employment. Kull, 81 A.3d at
154 n.5. Here, Ioven admitted in his complaint that Nestel acted within the scope of
his employment when he made the statements in the Bulletin. As such, the trial court
properly concluded that Nestel is protected by immunity.




                                          4
            Finally, Ioven, relying on Goldman v. Southeastern Pennsylvania
Transportation Authority, 57 A.3d 1154 (Pa. 2012), claims that SEPTA is not entitled
to sovereign immunity.


            In Goldman the Pennsylvania Supreme Court stated that SEPTA is not
an arm of the state for purposes of sovereign immunity under the Eleventh
Amendment to the United States Constitution. 57 A.3d at 1160. Ioven contends that
following Goldman, SEPTA is not an arm of the Commonwealth for purposes of the
Sovereign Immunity Act. We disagree.


            State statutory immunity and Eleventh Amendment immunity are
distinct concepts. See Knox v. SEPTA, 81 A.3d 1016, 1022 (Pa. Cmwlth. 2013). The
Goldman court noted that interpretation of the Sovereign Immunity Act does not
control resolution of the question of whether SEPTA has Eleventh Amendment
immunity from claims under the Federal Employees Liability Act (FELA), 45 U.S.C.
§§51-60. 57 A.3d at 1165 n.9.


            In Knox this court explained:

            A close reading of our Supreme Court’s decision in
            Goldman shows that the Court did not hold that SEPTA is
            not a Commonwealth agency for purposes of the Sovereign
            Immunity Act. . . . The Supreme Court specifically noted
            that it was not deciding whether Section 8522 . . . barred
            any claims brought under FELA. . . . ‘[B]ecause the issue of
            whether SEPTA is an arm of the Commonwealth entitled
            under the Eleventh Amendment to claim the protection of
            the Commonwealth’s sovereign immunity is a question of
            federal law,’ the Supreme Court held that interpretation of
            the Sovereign Immunity Act did not control its resolution of
            this question. Accordingly, we decline to extend the
                                            5
             decision in Goldman to hold in this case that SEPTA is not
             a Commonwealth agency for purposes of the Sovereign
             Immunity Act.

Id. at 1022 (citations omitted). See also Muldrow v. Southeastern Pennsylvania
Transportation Authority (SEPTA), 88 A.3d 269, 273 (Pa. Cmwlth.), appeal denied,
99 A.3d 927 (Pa. 2014), which stated that “Goldman does not preclude us from
holding that SEPTA is a Commonwealth agency for purposes of the Sovereign
Immunity Act.”


             In this case, SEPTA and Nestel are protected by sovereign immunity and
Ioven has failed to allege any exceptions thereto.


             Accordingly, we affirm.




                                       ___________________________________
                                       ROCHELLE S. FRIEDMAN, Senior Judge




                                           6
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Douglas Ioven,                      :
                                    : No. 543 C.D. 2016
                        Appellant   :
                                    :
                  v.                :
                                    :
Chief Thomas Nestel                 :
and SEPTA                           :



                                    ORDER


            AND NOW, this 30th day of November, 2016, we hereby affirm the
November 17, 2015, order of the Court of Common Pleas of Philadelphia County.



                                      ___________________________________
                                      ROCHELLE S. FRIEDMAN, Senior Judge
