            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Fennell,                               :
                            Appellant         :
                                              :
              v.                              :   No. 995 C.D. 2015
                                              :   Submitted: December 11, 2015
Jaclyn Grove, William Henry                   :
Dreibelbis, T. Sunderland,                    :
C. Wright and Jon D. Fisher                   :


BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge1
        HONORABLE P. KEVIN BROBSON, Judge
        HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE BROBSON                                  FILED: March 18, 2016

              Robert Fennell (Fennell) appeals from an order of the Court of
Common Pleas of Huntingdon County (trial court). The trial court granted a
motion for judgment on the pleadings filed by Jaclyn Grove, William Henry
Dreibelbis, T. Sunderland, C. Wright, and Jon D. Fisher (collectively, Appellees),
and dismissed Fennell’s lawsuit with prejudice. We now affirm.
              On February 9, 2015, Fennell filed a complaint with the trial court. In
the complaint, Fennell alleged that while he was confined in the restricted housing
unit of State Correctional Institution (SCI)-Smithfield, Nurse Grove, a registered
nurse employed by the Department of Corrections (Department) approached him.


       1
        This case was assigned to the opinion writer on or before January 31, 2016, when Judge
Leadbetter assumed the status of senior judge.
Nurse Grove asked Fennell to submit to a tuberculosis test and removed a needle
from “her pocket that had no protected plastic.” (Certified Record (C.R.), Compl.
¶ 11.) Fennell refused to submit to the test, but he agreed to submit to a test
conducted with a clean needle or via X-Ray. Nurse Grove “became inflamed with
[Fennell]’s answer” and announced “with a very loud voice” that Fennell would be
placed in administrative custody under quarantine so as to protect the staff and
other inmates from the risk of exposure to tuberculosis. (C.R., Compl. ¶ 12.) A
sign was placed on Fennell’s cell door, indicating that Fennell had tuberculosis and
that he must wear a mask at all times. The corrections officer who placed the sign
on Fennell’s door informed Fennell that Nurse Grove, Captain Sunderland (a
corrections officer employed by the Department), and Superintendent Fisher (the
superintendent of SCI-Smithfield) had “ordered the placement of the sign and the
quarantine.”     (C.R., Compl. ¶ 16.)    Fennell met with Superintendent Fisher,
Captain Sunderland, and Nurse Dreibelbis (a registered nurse and Corrections
Health Care Administrator employed by the Department), who informed Fennell
that they had given every inmate and staff member a memo indicating that Fennell
had tuberculosis.     Fennell met with Captain Sunderland, who explained that
Fennell was being quarantined for the safety of staff and inmates.          Captain
Sunderland later allowed Fennell to access the prison yard and law library on the
condition that Fennell wear a mask. Other inmates threatened to assault Fennell
because of their belief that he had tuberculosis, and, at one point, threw bodily
fluids at him. As a result of this attack, Fennell developed an ear infection for
which he received medical treatment.
               Based on these facts, Fennell alleged that Appellees were liable to
Fennell for defamation and slander and that Nurse Grove and Nurse Dreibelbis


                                         2
were liable to Fennell for invasion of privacy. On March 26, 2015, Appellees filed
an answer with new matter, asserting, inter alia, that Appellees have sovereign
immunity.    Fennell failed to respond to the new matter, apparently due to
difficulties involving the prison mailroom. On April 23, 2015, Appellees filed a
motion for judgment on the pleadings, arguing that as employees of the
Department, and, therefore, the Commonwealth, they were immune from liability
to Fennell, pursuant to Sections 8521-8527 of the Judicial Code, 42 Pa. C.S.
§§ 8521-8527, commonly referred to as the “Sovereign Immunity Act” (Act). On
May 11, 2015, the trial court granted Appellees’ motion and dismissed Fennell’s
lawsuit with prejudice. Fennell filed a notice of appeal with this Court, and the
trial court directed Fennell to file a statement of errors complained of on appeal.
After receiving Fennell’s statement, the trial court issued an opinion pursuant to
Pa. R.A.P. 1925(a). In so doing, the trial court concluded that Appellees were
immune, because Appellees were acting in the scope of their employment and the
actions of Appellees did not fall within any of the exceptions to sovereign
immunity set forth in Section 8522 of the Act, 42 Pa. C.S. § 8522. The trial court
further explained that Fennell’s claims of defamation, slander, and invasion of
privacy are all intentional torts, for which Commonwealth employees are not liable
if they are acting in the scope of their employment. Accordingly, the trial court
concluded that Fennell did not state any cause of action for which sovereign
immunity could be waived.




                                        3
               On appeal to this Court,2 Fennell presents four issues for our review:
(1) whether the trial court erred in determining that Appellees were acting within
the scope of their employment; (2) whether the trial court erred in concluding that
Commonwealth employees are immune from liability in suits involving intentional
torts; (3) whether the trial court erred in concluding that the actions of Appellees
did not fall within any of the exceptions to sovereign immunity; and (4) whether
the trial court erred in concluding that Fennell did not state a cause of action for
which sovereign immunity can be waived.3
               We first address Fennell’s argument that the trial court erred in
determining that Appellees were acting within the scope of their employment.
Fennell contends that Appellees’ actions violated Section 8 of the Department’s
Procedures Manual 13.2.1 (Manual),4 the Health Insurance Portability and

       2
          “Our scope of 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 whether questions of
material fact remain outstanding, such that the case should have gone to the jury.” Tobias v.
Halifax Twp., 28 A.3d 223, 225 n.4 (Pa. Cmwlth. 2011), appeal denied, 47 A.3d 849 (Pa. 2012).
“Our standard of review of an order granting or denying a motion for judgment on the pleadings
is plenary.” Id.
       3
         In his brief, Fennell argues that the trial court erred in concluding that he did not state a
cause of action for defamation and slander, and, in a separate section of his brief, makes the same
argument with respect to invasion of privacy. For ease of discussion, we have combined these
arguments.
       4
        This document is entitled “Access to Health Care Procedures Manual.” The section to
which Fennell cites provides:
               An inmate who refuses to have [a tuberculosis test] . . . without this
               documentation is to be counseled about the importance of the test.
               If he/she continues to refuse, he/she MUST be kept in
               Administrative Custody . . . . This is an administrative decision,
               not a medical one.
(C.R., Manual at 8-16.)



                                                  4
Accountability Act of 19965 (HIPAA), 55 Pa. Code § 2600.17,6 and the
Department’s Code of Ethics. Fennell argues that due to their violations of federal
law, Pennsylvania law, and Department policy, Appellees were not acting within
the scope of their employment as employees of the Department.
                “[T]he 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.” 1 Pa. C.S. § 2310. Section 8522 of the Act
provides a list of instances in which the General Assembly has waived sovereign
immunity as to Commonwealth parties. A Commonwealth party is defined as “[a]
Commonwealth agency and any employee thereof, but only with respect to an act
within the scope of his office or employment.”                 Section 8501 of the Act,
42 Pa. C.S § 8501. With respect to whether certain conduct falls within the scope
of an employee’s duties, this Court has held:
                Conduct of an employee is within the scope of
                employment if it is of a kind and nature that the
                employee is employed to perform; it occurs substantially
                within the authorized time and space limits; it is actuated,
                at least in part, by a purpose to serve the employer; and if
                force is intentionally used by the employee against
                another[,] it is not unexpected by the employer.
Natt v. Labar, 543 A.2d 223, 225 (Pa. Cmwlth. 1988).
                Here, the alleged violations of the Manual, HIPAA, 55 Pa. Code
§ 2600.17, and the Department’s Code of Ethics are immaterial to the

       5
           Pub. L. 104-191, 110 Stat. 1936 (1996).
       6
        55 Pa. Code § 2600.17 concerns the confidentiality of records for residents of personal
care homes and is not applicable to state correctional institutions.



                                                 5
determination of whether Appellees were acting within the scope of their
employment. In La Frankie v. Miklich, 618 A.2d 1145 (Pa. Cmwlth. 1992), an
individual filed a complaint raising abuse of process, malicious prosecution, and
false arrest claims against a state trooper. The individual contended that the state
trooper was not acting within the scope of his employment, because the state
trooper had abused the legal process, engaged in willful or malicious misconduct,
and violated the individual’s constitutional rights during his investigation and
subsequent arrest of the individual. A “jury found the trooper guilty of abuse of
process,” but the Court of Common Pleas of Northampton County granted
judgment notwithstanding the verdict to the state trooper, determining that the state
trooper “was acting within the scope of his duties as a state trooper when he
investigated the crimes and arrested [the individual].”            LaFrankie, 618 A.2d
at 1147, 1149. The state trooper, therefore, was protected from the imposition of
liability by sovereign immunity. The arrestee appealed to this Court, and we
affirmed the order of the common pleas court, concluding that the common pleas
court did not err in granting judgment notwithstanding the verdict to the state
trooper. In so doing, we explained that the suspect had admitted in his complaint
that the state trooper was acting within the scope of his employment. 7 Here, as in
La Frankie, Fennell admitted in his complaint that Appellees were acting within
the scope of their employment: “At all times relevant hereto, the [Appellees] were
servants, agents and employees of the Department . . . acting within the scope of


       7
          Specifically, the complaint provided that “[a]t all times hereinafter mentioned and
relevant hereto, [the state troopers] were acting as the agents, servants and employees of
Defendant Commonwealth, and within the scope of their employment.” LaFrankie, 618 A.2d at
1149 (first alternation in original).



                                             6
their employment.” (C.R., Compl. ¶ 30 (emphasis added).) In their answer to
Fennell’s complaint, Appellees admitted that they were acting within the scope of
their employment. (C.R., Answer ¶ 30.) Despite Fennell’s contentions on appeal
that Appellees’ actions were not within the scope of their employment, this fact
was undisputed for the purposes of Appellees’ motion for judgment on the
pleadings. We, therefore, reject Fennell’s argument that the trial court erred in
determining that Appellees acted within the scope of their employment.
            We next address Fennell’s argument that the trial court erred in
concluding that Commonwealth employees are immune from liability in suits
involving intentional torts. Specifically, Fennell contends that Appellees willfully
violated doctor-patient privilege, HIPAA, and the Manual.         These violations,
Fennell contends, amount to willful misconduct.              Fennell argues that
Commonwealth employees are liable for willful misconduct, which is
“synonymous with the term ‘intentional tort.’” (Fennell Br. at 12.) Accordingly,
Fennell argues that Appellees have waived sovereign immunity. In support of this
contention, Fennell cites Malley v. Briggs, 475 U.S. 335 (1986); Lippay v.
Christos, 996 F.2d 1490 (3d Cir. 1993); Renk v. City of Pittsburgh, 641 A.2d 289
(Pa. 1994); Alston v. PW-Phila. Weekly, 980 A.2d 215 (Pa. Cmwlth. 2009), appeal
denied, 993 A.2d 901 (Pa. 2010); Lancie v. Giles, 572 A.2d 827 (Pa.
Cmwlth. 1990); Freedman v. City of Allentown, 562 A.2d 1012 (Pa.
Cmwlth. 1989); King v. Breach, 540 A.2d 976 (Pa. Cmwlth. 1988); and Morris v.
Musser, 478 A.2d 937 (Pa. Cmwlth. 1984).           These cases, however, are all
distinguishable from the instant matter. Renk, Alston, Lancie, King, and Morris




                                         7
concern immunity under Sections 8541-8542 and 8545-8550 of the Judicial Code,8
rather than sovereign immunity under the Act. Renk, 641 A.2d at 292; Alston, 980
A.2d at 219; Lancie, 572 A.2d at 830; King, 540 A.2d at 979; Morris, 478 A.2d at
939. Malley and Lippay concern the qualified immunity that is available to state
officials involved in certain actions arising under 42 U.S.C. § 1983. Malley, 475
U.S. at 340; Lippay, 996 F.2d at 1503-04. Appellees have not asserted that they
are entitled to this qualified immunity, nor has Fennell alleged a violation of 42
U.S.C. § 1983. Freedman was overruled, and, therefore, provides no support for
Fennell’s position.      La Frankie, 618 A.2d at 1149.             Fennell has not cited a
precedential case in which willful misconduct was a relevant consideration in
determining whether the Commonwealth has waived sovereign immunity, nor has
Fennell cited a statutory exception to the Act for actions that constitute willful
misconduct.
              This Court has held that “there is no waiver of sovereign immunity for
intentional tort claims.” Kull v. Guisse, 81 A.3d 148, 157 (Pa. Cmwlth. 2013),
appeal denied, 91 A.3d 163 (Pa. 2014). Further, “willful misconduct does not
vitiate a Commonwealth employee’s immunity because sovereign immunity
protects a Commonwealth employee acting within the scope of his or her
employment from liability, even for intentional acts which cause emotional
distress.” Holt v. Nw. Pa. Training P’ship Consortium, Inc., 694 A.2d 1134, 1140
(Pa. Cmwlth. 1997). Whether Appellees’ conduct amounted to willful misconduct


       8
          42 Pa. C.S. §§ 8541-8542, 8545-8550, commonly referred to as the “Political
Subdivision Tort Claims Act.” Section 8550 of the Political Subdivision Tort Claims Act, 42 Pa.
C.S. § 8550, provides that local agency employees are not immune from liability for actions that
constitute willful misconduct.



                                               8
is, therefore, irrelevant to the determination of whether Appellees are protected by
sovereign immunity. Fennell’s claims of defamation, slander, and invasion of
privacy are all intentional torts. See Wilson v. Marrow, 917 A.2d 357, 364-65 (Pa.
Cmwlth. 2007) (providing that defamation is intentional tort); Picariello v.
Commonwealth, 421 A.2d 477, 479 n.2 (Pa. Cmwlth. 1980) (providing that slander
and invasion of privacy are intentional torts for which sovereign immunity is not
waived). Because the claims against Appellees are intentional torts, Appellees
have not waived their immunity. We, therefore, reject Fennell’s argument that the
trial court erred in concluding that Commonwealth employees are immune from
liability in suits involving intentional torts.
              We next address Fennell’s argument that the trial court erred in
concluding that Appellees’ actions did not fall within any of the exceptions to
sovereign immunity. As noted above, Section 8522 of the Act provides a list of
specific exceptions to the sovereign immunity of Commonwealth employees.
Fennell appears to contend that Appellees’ actions fall within one of the
enumerated      exceptions—namely,         the    “medical-professional”   exception,
Section 8522(b)(2) of the Act. The medical-professional exception provides:
              (b) Acts which may impose liability.-- The following
              acts by a Commonwealth party may result in the
              imposition of liability on the Commonwealth and the
              defense of sovereign immunity shall not be raised to
              claims for damages caused by:
                    (2) Medical-professional liability.-- Acts of
                    health care employees of Commonwealth agency
                    medical facilities or institutions or by a
                    Commonwealth party who is a doctor, dentist,
                    nurse or related health care personnel.
Section 8522(b)(2) of the Act. “As an exception to the rule of immunity of the
Commonwealth from liability, the medical-professional liability waiver must be

                                             9
strictly construed and narrowly interpreted against the party asserting liability.”
Holland v. Norristown State Hosp., 584 A.2d 1056, 1058 (Pa. Cmwlth. 1990),
appeal denied, 598 A.2d 286 (Pa. 1991).          Prison facilities and Department
employees may fall within this exception. See, e.g., Wareham v. Jeffes, 564 A.2d
1314, 1324 (Pa. Cmwlth. 1989) (concluding that prison infirmary was agency
medical facility and chief health care administrator of prison was health care
personnel within meaning of medical-professional exception).
             Despite Fennell’s assertions that Appellees’ actions fall within the
medical-professional exception, waiver of a Commonwealth employee’s sovereign
immunity requires a negligent act.         In Martz v. Southeastern Pennsylvania
Transportation Authority, 598 A.2d 580 (Pa. Cmwlth. 1991), an employee filed a
complaint against the Southeastern Pennsylvania Transportation Authority
(SEPTA), asserting claims of false arrest and imprisonment and malicious
prosecution. SEPTA argued that it was immune from liability, and the employee
countered that SEPTA’s actions fell within the vehicle liability exception to
sovereign immunity, Section 8522(b)(1) of the Act. This Court explained that
because the employee had pled “only the intentional torts of false imprisonment
and malicious prosecution,” rather than negligence, SEPTA had not waived
sovereign immunity. Martz, 598 A.2d at 582. Martz is analogous to the instant
matter. Here, Fennell has pled only intentional torts. Because Fennell failed to
allege negligence on the part of Appellees, Appellees’ actions do not fall within the
medical-professional exception. We, therefore, reject Fennell’s argument that the
trial court erred in concluding that the actions of Appellees did not fall within any
of the exceptions to sovereign immunity.




                                         10
             We next address Fennell’s argument that the trial court erred in
concluding that Fennell did not state a cause of action for which sovereign
immunity can be waived. Fennell reiterates his arguments that Appellees violated
various state and federal privacy laws. Fennell explains the elements necessary to
plead a cause of action for defamation, slander, and invasion of privacy, and argues
that he pled the facts necessary to state these causes of action in his complaint.
             Assuming, arguendo, that Fennell has pled the facts necessary to state
causes of action for defamation, slander, and invasion of privacy, Fennell still has
not demonstrated that Appellees have waived sovereign immunity as to these
causes of action. In determining whether a Commonwealth employee is immune
from liability, a court must consider
             whether the Commonwealth employee was acting within
             the scope of his or her employment; whether the alleged
             act which causes injury was negligent and damages
             would be recoverable but for the availability of the
             immunity defense; and whether the act fits within one of
             the nine exceptions to sovereign immunity.

La Frankie, 618 A.2d at 1149. As to the first consideration, the trial court properly
concluded that Appellees were acting within the scope of their employment,
because Fennell admitted in his complaint that Appellees were acting within the
scope of their employment. With respect to the second consideration, Fennell has
alleged only intentional torts—namely, defamation, slander, and invasion of
privacy. As to third consideration, intentional torts do not fit within any of the
exceptions to sovereign immunity. See Martz, 598 A.2d at 582. Because Fennell
failed to establish that Appellees were acting outside the scope of their
employment, that Appellees committed a negligent act, or that Appellees’ actions
fell within one of the exceptions to sovereign immunity, sovereign immunity is not


                                          11
waived in the instant matter. We, therefore, reject Fennell’s argument that the trial
court erred in concluding that Fennell did not state a cause of action for which
sovereign immunity can be waived.
             Accordingly, we affirm the trial court’s order.




                                P. KEVIN BROBSON, Judge




                                         12
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Fennell,                      :
                       Appellant     :
                                     :
            v.                       :   No. 995 C.D. 2015
                                     :
Jaclyn Grove, William Henry          :
Dreibelbis, T. Sunderland,           :
C. Wright and Jon D. Fisher          :


                                   ORDER


            AND NOW, this 18th day of March, 2016, the order of the Court of
Common Pleas of Huntingdon County is hereby AFFIRMED.




                              P. KEVIN BROBSON, Judge
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Fennell,                         :
                                        : No. 995 C.D. 2015
                           Appellant    : Submitted: December 11, 2015
                                        :
                    v.                  :
                                        :
Jaclyn Grove, William Henry             :
Dreibelbis, T. Sunderland,              :
C. Wright and Jon D. Fisher             :


BEFORE:      HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
             HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

DISSENTING OPINION
BY SENIOR JUDGE FRIEDMAN                                     FILED: March 18, 2016

             In concluding that Jaclyn Grove is protected from liability by sovereign
immunity, the majority relies on Fennell’s admission in his complaint that, as a
matter of fact, Grove was employed by the Department of Corrections as a nurse and
was acting within the scope of her employment when she required Fennell to submit
to the tuberculosis test. Because Fennell is arguing, though unartfully, that Grove
acted outside the scope of her employment when she required Fennell to submit to the
tuberculosis test with a non-sterile needle, I respectfully dissent.


             In considering a motion for judgment on the pleadings, this court must
accept all of the non-movant’s well-pled allegations as true.          Ridge v. State
Employees’ Retirement Board, 690 A.2d 1312, 1314 n.5 (Pa. Cmwlth. 1997) (en
banc). The court will grant a motion for judgment on the pleadings only where there
are no material facts at issue and the law is clear that no recovery is possible. Id. The
issue in this case is whether requiring an inmate to submit to a test or treatment with
non-sterile equipment is conduct within or outside the scope of a nurse’s employment
with the Department of Corrections.


              In his complaint, Fennell alleges that Grove is employed as a nurse by
the Department of Corrections. (Compl. ¶ 2.) Fennell admits that Grove was acting
within the scope of her employment when she asked Fennell to submit to a
tuberculosis test administered with a needle. (Id. ¶¶ 2, 9, 30.) Grove then removed a
needle from “her pocket that had no protected plastic.” (Id. ¶ 11.) Fennell “said no to
the use of [the] needle that Grove removed” but “did agree to a clean needle or a[n] x-
ray of his chest.” (Id.)


              Although Grove initially acted within the scope of her employment
when she asked Fennell to submit to the tuberculosis test, whether Grove ultimately
acted outside the scope of her employment when she insisted that Fennell submit to
the test with a non-sterile needle is a question of law. Similarly, it is a question of
law whether Grove acted outside the scope of her employment when she announced
to inmates and staff in a loud voice that Fennell had tuberculosis, ordered a sign be
placed on his door announcing that “this inmate is infected with a very contagious
disease,” and ordered Fennell quarantined due to his refusal to submit to the test with
the non-sterile needle. (Id. ¶¶ 12, 16.)1

       1
        Fennell alleges that after other inmates were told that he had tuberculosis, they “began to
kick and pound on their cell doors and threaten[ed] [Fennell] with harm if he comes near any of
them.” (Compl. ¶ 13.) Further, “when [Fennell] went to the yard other inmates threw feces, urine
and semen on Fennell.” (Id. ¶ 14.)



                                            RSF - 2 -
             Conduct of an employee is within the scope of employment
             if it is of a kind and nature that the employee is employed to
             perform; it occurs substantially within the authorized time
             and space limits; it is actuated, at least in part, by a purpose
             to serve the employer; and if force is intentionally used by
             the employee against another, it is not unexpected by the
             employer.


Natt v. Labar, 543 A.2d 223, 225 (Pa. Cmwlth. 1988) (emphasis added).


             As set forth in Fennell’s complaint, Grove was employed by the
Department of Corrections as a nurse and asked Fennell to submit to a tuberculosis
test on the Department of Corrections’ premises. Whether her use of a non-sterile
needle that she removed from “her pocket that had no protected plastic” was
unexpected or permitted by the Department of Corrections is a question of law, i.e.,
whether the Department of Corrections’ medical protocol authorizes use of non-
sterile equipment in the care and treatment of inmates. I submit that the mere fact
that Grove is employed by the Commonwealth does not cloak her with immunity
when deciding the legal question presented.


             “[S]overeign     immunity     protects    Commonwealth        officials   and
employees acting within the scope of their duties from civil liability.” Kull v. Guisse,
81 A.3d 148, 154 (Pa. Cmwlth. 2013) (emphasis added).                “However, conduct
constituting . . . actual malice or willful misconduct is considered to be outside the
employee’s scope of employment for immunity purposes.” Id. Grove is no more
protected from liability by her actions than Fennell was protected from disease or
infection by the tainted needle. Grove cannot hide behind the cloak of immunity for
actions committed outside the scope of her employment.


                                        RSF - 3 -
To this extent, I would reverse the trial court’s order.




                             ___________________________________
                             ROCHELLE S. FRIEDMAN, Senior Judge




                           RSF - 4 -
