                           [J-106-2018] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


 SHIRETTA JUSTICE,                            :   No. 17 EAP 2018
                                              :
                        Appellant             :   Appeal from the Order of
                                              :   Commonwealth Court entered on
                                              :   11/14/2017 at No. 1439 CD 2016
               v.                             :   reversing the Order entered on
                                              :   07/19/2016 in the Court of Common
                                              :   Pleas, Philadelphia County, Civil
 PENNSYLVANIA STATE POLICE                    :   Division at No. 1729 September Term
 TROOPER LOMBARDO,                            :   2014.
                                              :
                        Appellee              :   ARGUED: December 6, 2018


                                    DISSENTING OPINION


JUSTICE MUNDY                                                 DECIDED: May 31, 2019
       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 17. 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., 66 A.3d 740, 755 (Pa. 2013) (footnotes and internal

citation omitted).   In Scientific Games, we also remarked that “[a] more general

clarification of the relationship between sovereign immunity and jurisdiction may be

appropriate in the arena at large.” Id. at 756. To date, this court has not engaged in such

an inquiry, and the present case does not afford an opportunity to do so. Nevertheless,

it bears acknowledging that courts must be reticent to diminish the scope of sovereign

immunity as expressed by the Legislature in its enactments. To that end, we have held

any exceptions authorized by the Legislature must be strictly construed.         Jones v.

Southeastern Pa. Transp. Auth., 772 A.2d 435, 440 (Pa. 2001).

       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, 618 A.2d 1145,

1148 (Pa. Cmwlth. 1992). Thus, the limiting factor for the applicability of sovereign




                           [J-106-2018] [MO: Donohue, J.] - 2
immunity in this case is whether Trooper Lombardo was acting within the scope of his

employment.1    Therefore, although we employ the concepts of the Restatement to

analyze scope-of-employment issues, consistent with our strict interpretation of statutory

exceptions we must also strictly construe the Restatement’s scope-of-employment

requirements in the sovereign immunity paradigm.

      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.




1             [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. 42 Pa. Cons. Stat. § 8522(b) (listing the nine
              exceptions to sovereign immunity). Second, sovereign
              immunity does not protect Commonwealth employees acting
              outside the course and scope of their employment.

Sarin v. Magee, 333 F.Supp.3d 475, 481 (E.D. Pa. 2018).


                           [J-106-2018] [MO: Donohue, J.] - 3
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,

173 A.3d 1230, 1237 n.7, 1239 (Pa. Cmwlth. 2018).                 It found that the evidence

demonstrated Trooper Lombardo’s actions were incidental to his authority to “enforce all

laws of the Commonwealth including those ‘regulating the use of the highways of this

Commonwealth . . . .’” Id. at 1239. Accordingly, it concluded the trial court committed an

error of law in denying Trooper Lombardo’s motion for JNOV.

        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, 3111.2 Instantly, Trooper Lombardo initially suggested to Ms. Justice


2   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



                             [J-106-2018] [MO: Donohue, J.] - 4
that she could contact a licensed driver to come and retrieve the vehicle. After processing

the citations, no driver having arrived, Trooper Lombardo arranged for the vehicle to be

towed. After the arrival of the tow truck, again with no driver having appeared on the

scene, Trooper Lombardo directed Ms. Justice to enter his patrol vehicle to transport her

to a place of safety. Ms. Justice refused, pleading with Trooper Lombardo to wait longer

for the licensed driver to arrive. Thereupon, Trooper Lombardo physically subdued and

handcuffed Ms. Justice.3

       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


              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.

Id. § 3111 (emphasis added).
3 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 24, 25 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.



                           [J-106-2018] [MO: Donohue, J.] - 5
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 hours and at an authorized

place, there is an inference that he is acting within the scope of employment.” Id.

cmt. a (emphasis added).

       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.4

Trooper Lombardo’s actions were of the kind he is employed to perform; he performed

them within an authorized time and location; they were actuated at least in part to serve

the interest of the State Police in performing their duty to monitor traffic safety, and use

of force by troopers in performing these duties is not unexpected by the State Police.

       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 22.       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

4 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);
id. § 230 (noting expressly forbidden acts may be within the scope of employment when
such acts may be anticipated in achieving a required goal); id § 231(noting even
consciously criminal or tortious conduct may be within the scope of employment). These
sections do not come into consideration where, as here, the actions in question are
authorized.


                           [J-106-2018] [MO: Donohue, J.] - 6
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.




                           [J-106-2018] [MO: Donohue, J.] - 7
