          IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown,                                  :
                             Appellant        :
                                              :
               v.                             :   No. 432 C.D. 2017
                                              :   Submitted: January 12, 2018
A. Clark, D. Campbell, Steven Glunt,          :
and Dorina Varner                             :

BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE CHRISTINE FIZZANO CANNON, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION
BY JUDGE SIMPSON                              FILED: March 2, 2018

               Lamar Brown (Brown), an inmate incarcerated at the State Correctional
Institution (SCI) at Albion, representing himself, appeals from an order of the Centre
County Court of Common Pleas (trial court).1             The trial court sustained the
preliminary objections of A. Clark (Clark), D. Campbell (Campbell), Steven Glunt
(Glunt), and Dorina Varner (Varner) (collectively, SCI Defendants), and dismissed
Brown’s defamation complaint. Upon review, we affirm the trial court’s order.


                                      I. Background
               Other than including their names in the caption, Brown’s complaint
contained no mention of Campbell, Glunt, or Varner. Brown alleges that Clark, an
employee in the prison commissary, falsely reported to the unit manager that Brown
threw his identification at Clark and used profanity. Brown received a verbal
reprimand from the unit manager as a result of Clark’s report.



      1
          The Honorable Katherine V. Oliver presided.
               In his complaint, Brown avers Clark defamed him by making the false
report to the unit manager. He alleges Clark violated the Department of Corrections’
(DOC) code of ethics by making a false report. Brown further avers Clark was not
acting within the scope of her employment when violating the code of ethics.


               The SCI Defendants jointly filed preliminary objections in the nature
of demurrers to the complaint. All four SCI Defendants asserted that sovereign
immunity barred Brown’s action. See 1 Pa. C.S. §2310. In addition, Campbell,
Glunt, and Varner sought dismissal because the complaint contained no averments
concerning them.


               After briefing by the parties, the trial court sustained the SCI
Defendants’ preliminary objections. The trial court found all four SCI Defendants
were shielded by sovereign immunity.                The trial court further found that the
complaint failed to plead any facts to support claims against Campbell, Glunt, and
Varner.


               This appeal followed.2


                                           II. Issue
               On appeal,3 Brown argues Clark is not entitled to sovereign immunity.
He asserts that Clark’s allegedly false report about Brown’s conduct violated the

       2
         Brown filed his appeal in the Superior Court, which transferred the case to this Court.
       3
         This Court’s review of a trial court’s order sustaining preliminary objections is limited
to determining whether the trial court committed an error of law or abused its discretion. Kull v.
Guisse, 81 A.3d 148 (Pa. Cmwlth. 2013), appeal denied, 91 A.3d 163 (Pa. 2014). A trial court



                                                2
DOC code of ethics, and, therefore, was outside the scope of her employment.
Brown asserts no argument relating to the trial court’s dismissal of Campbell, Glunt,
and Varner.


                                       III. Discussion
              Defamation is an intentional tort, and Commonwealth personnel are
immune from liability for intentional torts when acting in the scope of their
employment. Wilson v. Marrow, 917 A.2d 357 (Pa. Cmwlth. 2007). Conduct is
within the scope of employment when it is the type of activity the person is employed
to perform, occurs in an authorized time and space, is at least partly in service of the
employer’s interest, and does not involve a degree of force beyond that expected by
the employer. Kull v. Guisse, 81 A.3d 148 (Pa. Cmwlth. 2013), appeal denied, 91
A.3d 163 (Pa. 2014) (citing RESTATEMENT (SECOND) OF AGENCY §228(1958)).


              Here, Brown attempts to avoid the shield of sovereign immunity by
alleging that Clark violated the DOC code of ethics. Brown reasons that by doing
so, Clark acted outside the scope of her employment. This argument is without
merit.


              Brown asserted the same argument in Brown v. Sayors (Pa. Cmwlth.,
No. 1509 C.D. 2015, filed July 13, 2016), 106 Pa. Commw. Unpub. LEXIS 497
(unreported). In Sayors, as here, Brown claimed a prison employee made false


may sustain preliminary objections only if it appears with certainty that the law will not allow
recovery. Id. All well-pled facts in the complaint and all reasonable inferences from those facts
are accepted as true. Id. However, a court need not accept as true unwarranted inferences,
conclusions of law, argumentative allegations, or expressions of opinion. Id.


                                               3
reports of threatening and abusive speech by Brown. As here, Brown contended the
allegedly false statements were outside the scope of the defendant’s employment
because the statements violated the DOC code of ethics.


               This Court squarely rejected Brown’s argument in Sayors.                      We
concluded allegations of false or fabricated misconduct reports do not overcome the
bar of sovereign immunity. Id. (citing Kull; Brown v. Blaine, 833 A.2d 1166 (Pa.
Cmwlth. 2003)). Sayors is consistent with other decisions of this Court applying
sovereign immunity to defamation claims against Commonwealth personnel. See,
e.g., Wilson; Blaine; Yakowicz v. McDermott, 548 A.2d 1330 (Pa. Cmwlth. 1988),
appeal denied, 565 A.2d 1168 (Pa. 1989); Fennell v. Grove (Pa. Cmwlth., No. 995
C.D. 2015, filed March 18, 2016), appeal denied, 159 A.3d 938 (Pa. 2016), 2016 Pa.
Commw. Unpub. LEXIS 228 (unreported).


               Moreover, in Fennell, this Court held that an alleged violation of the
DOC code of ethics was immaterial to the issue of whether prison personnel’s
defamatory statements were within the scope of their employment. Id. (citing La
Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992)). Sayors and Fennell offer
persuasive precedents. 210 Pa. Code §69.414(a).4


               Additionally, in Holt v. Northwest Training Partnership Consortium,
694 A.2d 1134 (Pa. Cmwlth. 1997), this Court upheld the application of sovereign
immunity to a prison warden for an alleged intentional tort. The plaintiff in Holt, a

       4
          Notably, in Brown v. Fox, No. 14-109 Erie (W.D. Pa. May 12, 2017), 2017 U.S. Dist.
LEXIS 72597, a federal district court upheld federal sovereign immunity in yet another intentional
tort claim by Brown against prison personnel.


                                                4
transsexual, alleged that the warden tortiously interfered with the plaintiff’s
employment by denying the plaintiff access to inmates to perform job training duties.
This Court concluded the warden’s conduct, even if tortious, was within the scope
of his employment because it also furthered the maintenance of order in the prison.


             Similarly, here, Clark’s allegedly false report of misconduct by Brown
facially furthered the maintenance of order by promoting orderly behavior by
inmates. Thus, like the warden’s conduct in Holt, Clark’s conduct was within the
scope of her employment because it served, at least in part, her employer’s interest.


             Brown’s reliance on Jacobs v. Department of Corrections, No. 04-1366
(W.D. Pa. Sept. 21, 2009), 2009 U.S. Dist. LEXIS 86060, is misplaced. In Jacobs,
a federal district court, applying Pennsylvania law, declined to enter summary
judgment for the defendant on the basis of sovereign immunity. However, Jacobs is
factually distinguishable. Unlike Brown here, the plaintiff in Jacobs averred facts
demonstrating that the defendant’s allegedly false report concerning the plaintiff
served the defendant’s personal interest in concealing his own misconduct. Because
Brown alleges no facts suggesting any personal interest served by Clark’s alleged
false report, Jacobs is inapplicable. Significantly, the federal trial court’s application
of Pennsylvania law in Jacobs also conflicts with this Court’s precedents cited
above.




                                            5
                                 IV. Conclusion
             Brown neither averred facts nor cited applicable authority to overcome
Clark’s assertion of sovereign immunity. Therefore, this Court affirms the trial
court’s order sustaining Clark’s preliminary objections and dismissing Brown’s
complaint.




                                      ROBERT SIMPSON, Judge




                                         6
       IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Lamar Brown,                            :
                        Appellant       :
                                        :
            v.                          :   No. 432 C.D. 2017
                                        :
A. Clark, D. Campbell, Steven Glunt,    :
and Dorina Varner                       :


                                    ORDER

            AND NOW, this 2nd day of March, 2018, the order of the Court of
Common Pleas of Centre County is AFFIRMED.




                                       ROBERT SIMPSON, Judge
