noting that “[p]ractitioners have been repeatedly cautioned against this practice . . .”
How later courts described this case
- noting that “[p]ractitioners have been repeatedly cautioned against this practice . . .”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Reginald Scott :
:
v. :
:
Philadelphia Police Officer :
Brian Canela-Perez and :
George Lutz, : No. 990 C.D. 2023
Appellants : Argued: June 4, 2025
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION
BY JUDGE FIZZANO CANNON FILED: August 14, 2025
City of Philadelphia (City) police officers Brian Canela-Perez and
George Lutz (Police Officers) appeal from a judgment entered after a jury trial in the
Court of Common Pleas of Philadelphia County (Trial Court). Upon review, we
vacate the Trial Court’s judgment and remand for a new trial.
I. Background
In July 2019, Reginald Scott (Scott) allegedly suffered injuries during
an arrest by Police Officers after he exited his vehicle and approached their police
vehicle during a traffic stop in the City. In June 2021, Scott brought a civil action
against Police Officers,1 individually and in their official capacities, alleging assault,
battery, civil conspiracy, and intentional infliction of emotional distress.
Reproduced Record (RR) at 58a-67a. A jury trial was held in August 2023. Police
Officers requested jury instructions to the effect that the jury could not impose
liability against Police Officers unless it found they had committed willful
misconduct. See id. at 95a & 103a-04a. Police Officers also requested a related jury
verdict interrogatory addressing willful misconduct. Id. at 119a. The Trial Court
refused both requests. See id. at 369a-70a & 380a-81a.
The jury returned a verdict in favor of Scott and against Police Officers
in the amount of $162,378.78. Br. of Police Officers, Ex. B. Police Officers filed a
motion for post-trial relief seeking a new trial, which the Trial Court denied. Id., Ex.
A. This appeal followed.2
II. Issues
On appeal, Police Officers assert that the Trial Court erred in failing to
instruct the jury that it must find willful misconduct on the part of Police Officers in
order to impose liability against them. Relatedly, Police Officers allege error by the
1
Although the Trial Court’s written opinion indicates that the City was also a defendant,
the amended complaint names only Police Officers. See Reproduced Record (RR) at 58a.
2
Police Officers incorrectly purported to appeal from the Trial Court’s order denying their
post-trial motion. An appeal is properly taken from the entry of judgment, not the denial of a post-
trial motion. See K.H. v. J.R., 826 A.2d 863, 871 n.11 (Pa. 2003) (noting that “[p]ractitioners have
been repeatedly cautioned against this practice . . .”). In compliance with an order of this Court,
Police Officers perfected their appeal by causing judgment to be entered on the jury verdict. See
RR at 1a. Accordingly, we will treat the appeal as having been taken from the entry of judgment.
See K.H., 826 A.2d at 872 (citing Pa.R.A.P. 905(a)).
2
Trial Court in failing to include an interrogatory concerning willful misconduct on
the verdict slip.3
In addition to opposing Police Officers’ assertions of error on the
merits, Scott contends that Police Officers have waived the willful misconduct issue
by failing to raise it sufficiently before the Trial Court.
III. Discussion
A. Waiver
As a threshold matter, Scott asserts that Police Officers’ issues have
been waived. Scott argues that Police Officers’ two proposed jury instructions
raising willful misconduct were directed only to Scott’s claims of malicious
prosecution and intentional infliction of emotional distress; neither proposed
instruction asked the jury to find willful misconduct in association with Scott’s
assault and battery claims. Scott acknowledges that Police Officers filed a proposed
verdict sheet that included willful misconduct generally, but Scott contends that
Police Officers never asked the Trial Court to make a ruling in that context. Scott
insists the mere filing of a pretrial submission without obtaining a ruling will not
preserve an issue.
Police Officers counter that they preserved the issue of willful
misconduct with regard to the assault and battery charges. They observe that they
raised it both at the charge conference and on their proposed verdict sheet.
Moreover, Police Officers maintain that both Scott and the Trial Court clearly
3
Police Officers initially raised additional issues in their docketing statement and their
statement of errors complained of on appeal pursuant to Rule 1925(b) of the Pennsylvania Rules
of Appellate Procedure, Pa.R.A.P. 1925(b). However, they are no longer pursuing those other
issues. Police Officers’ Br. at 8 n.1.
3
understood that Police Officers were raising the requirement of proving willful
misconduct as a global issue applicable to all of Scott’s intentional tort claims.
Police Officers posit that, although their proposed instructions related willful
misconduct to the malicious prosecution and intentional infliction of emotional
distress claims, the Trial Court understood and treated the issue as pertaining to all
of Scott’s claims.
Moreover, Police Officers point out that they raised the willful
misconduct issue in their post-trial motion, and Scott did not then contend that it had
been waived at trial. Similarly, Police Officers raised the willful misconduct issue
in their statement of errors complained of pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(b), and the Trial Court
did not find it waived.
We agree with Police Officers that they sufficiently preserved the issue
of willful misconduct. In their proposed jury instructions, Police Officers requested
the following for inclusion in the Trial Court’s instruction on the burden of proof:
In this case, the Plaintiff has the burden of proving the
following propositions:
(1) Officers Canela-Perez and Lutz’s conduct constituted,
malicious prosecution, or intentional infliction of
emotional distress;
(2) Officers Canela-Perez and Lutz’s conduct was a
factual cause in bringing about harm to Mr. Scott; and
(3) Officers Canela-Perez and Lutz’s conduct constituted
willful misconduct.
RR at 95a. Although paragraph (1) related only to malicious prosecution and
intentional infliction of emotional distress, paragraphs (2) and (3) are general in
scope and are not expressly limited by the scope of paragraph (1).
4
Police Officers requested the following jury instruction concerning the
statute commonly referred to as the Political Subdivision Tort Claims Act (Tort
Claims Act):4
The Commonwealth has enacted a statute called the . . .
Tort Claims Act. This statute provides immunity to
employees of a municipality, such as police officers,
unless the police officers’ conduct constituted “willful
misconduct.”
This means that even if you find that Mr. Scott has proven
claims for malicious prosecution[] or intentional infliction
of emotional distress, Officers Canela-Perez and Lutz
cannot be liable unless you also find that Officers Canela-
Perez and Lutz’s conduct constituted “willful misconduct.”
RR at 103a (footnote omitted). Similarly, Police Officers requested the following
jury instruction concerning willful misconduct:
Willful misconduct entails actual prior knowledge of a
plaintiff’s peril and must be carried out with the intention
of achieving exactly that wrongful purpose. Willful
misconduct means that an officer’s tortious behavior may
be characterized as willful misconduct only when an
officer subjectively intends to do something he knows is
wrongful.
In the context of Mr. Scott’s claims for and malicious
prosecution, willful misconduct only exists if Officers
Canela-Perez and Lutz deliberately detained, arrested, or
prosecuted Mr. Scott “knowing that [they] lacked probable
cause to do so.” In other words, Mr. Scott must show “not
only that [Officers Canela-Perez and Lutz] intended to
commit the acts that they are accused of carrying out, but
also that [Officers Canela-Perez and Lutz] understood that
the actions they intended to take were unlawful and chose
to take the actions anyway.” Gross negligence or
recklessness is not sufficient to prove willful misconduct.
4
Sections 8541-9564 of the Judicial Code, 42 Pa.C.S. §§ 8541-9564, are commonly
referred to as the Tort Claims Act. York v. Kanan, 298 A.3d 533, 538 (Pa. Cmwlth. 2023).
5
RR at 104a (footnotes omitted). As with the proposed instruction concerning the
burden of proof, although the second paragraph of each of these instructions refers
specifically to malicious prosecution and intentional infliction of emotional distress,
the first paragraph describes immunity under the Tort Claims Act and willful
misconduct generally. Thus, again, the proposed instruction as a whole was not
clearly limited to malicious prosecution and intentional infliction of emotional
distress.
At the charge conference, Police Officers again specifically requested
inclusion of willful misconduct jury instructions. The trial court refused those
requests. Regarding the proposed jury instructions, the following colloquy occurred:
[POLICE OFFICERS’ COUNSEL]: We’ll start with the
willful misconduct and I know Your Honor in previous
trial with our unit doesn’t give the willful misconduct.
THE COURT: Doesn’t what?
[POLICE OFFICERS’ COUNSEL]: There’s a willful
misconduct charge that we often ask for as a unit. [Scott’s
counsel], obviously, is objecting to that and knowing Your
Honor’s past –
THE COURT: And it’s case law too, right?
[POLICE OFFICERS’ COUNSEL]: There is case law,
but the case law is not very clear.
THE COURT: Is there an actual jury charge for that? Or
is it just case law?
[SCOTT’S COUNSEL]: No, it’s case law.
[POLICE OFFICERS’ COUNSEL]: Well, let me -- just
to be clear on that.
THE COURT: I rarely ever give case law charges.
[SCOTT’S COUNSEL]: Yes.
6
[POLICE OFFICERS’ COUNSEL]: If you don’t give
case law --
THE COURT: I don’t.
[POLICE OFFICERS’ COUNSEL]: -- instructions, I’ll
reserve a general objection but.
THE COURT: Okay.
....
[SCOTT’S COUNSEL]: I’ll add this to the conversation,
I think that the biggest obstacle involves the issue [of]
willful misconduct. If Your Honor is telling us that that
will not be charged, then I think we’re just down to a
couple that involve --
THE COURT: No. I’m telling you that will not be
charged.
[POLICE OFFICERS’ COUNSEL]: Yes.
THE COURT: Because that’s the way I’ve held in the past
and it’s case law and it’s not a proposed jury instruction
by the standards.
Id. at 369a-70a & 380a-81a. Nothing in this exchange indicated that the requested
willful misconduct instruction was to be limited to any specific claims raised by
Scott.
Moreover, Police Officers’ proposed jury verdict form contained a
separate section with a proposed jury interrogatory concerning willful misconduct
that provided:
VII. WILLFUL MISCONDUCT
Has Plaintiff Reginald Scott proved, by a
preponderance of the evidence, that Defendant
Officers Brian Canela-Perez and George Lutz action
7
as outlined in the preceding questions [which addressed
all of Scott’s claims] constituted “willful misconduct”?
Yes _____ No _____
If you answer “Yes,” proceed to Question VIII. If
you answer “No,” your deliberations are over and you
may return to the courtroom.
RR at 119a (emphasis in original). The interrogatory at issue was clearly not limited
to any specific claims.
In their motion for post-trial relief, Police Officers asserted that the
Trial Court erred by refusing both the requested jury instructions and the requested
jury interrogatory relating to willful misconduct. See generally Original Record,
Item #56. For these reasons, we conclude that Police Officers sufficiently preserved
the willful misconduct issue by raising it at every appropriate point. Accordingly,
we will next address the merits of the issues raised by Police Officers on appeal.
B. Relevant Tort Claims Act Sections
The following provisions of the Tort Claims Act are relevant to our
analysis of this matter:
[Section] 8541. Governmental Immunity.
Except as otherwise provided in this subchapter, no local
agency shall be liable for any damages on account of any
injury to a person or property caused by any act of the local
agency or an employee thereof or any other person.
42 Pa.C.S. 8541.
[Section] 8542(a). Exceptions to Governmental Immunity.
(a) Liability imposed.--A local agency shall be liable for
damages on account of an injury to a person or property
within the limits set forth in this subchapter if both of the
8
following conditions are satisfied and the injury occurs as
a result of one of the acts set forth in subsection (b):
(1) The damages would be recoverable under
common law or a statute creating a cause of action
if the injury were caused by a person not having
available a defense under section 8541 (relating to
governmental immunity generally) or section 8546
(relating to defense of official immunity); and
(2) The injury was caused by the negligent acts of
the local agency or an employee thereof acting
within the scope of his office or duties with respect
to one of the categories listed in subsection (b). As
used in this paragraph, “negligent acts” shall not
include acts or conduct which constitutes a crime,
actual fraud, actual malice or willful misconduct.
42 Pa.C.S. 8542(a).
[Section] 8545. Official Liability.
An employee of a local agency is liable for civil damages
on account of any injury to a person or property caused by
acts of the employee which are within the scope of his
office or duties only to the same extent as his employing
local agency and subject to the limitations imposed by this
subchapter.
42 Pa.C.S. 8545.
[Section] 8546. Official Immunity.
In any action brought against an employee of a local
agency for damages on account of an injury to a person or
property based upon claims arising from, or reasonably
related to, the office or the performance of the duties of the
employee, the employee may assert on his own behalf, or
the local agency may assert on his behalf:
(1) Defenses which are available at common law to
the employee.
9
(2) The defense that the conduct of the employee
which gave rise to the claim was authorized or
required by law, or that he in good faith reasonably
believed the conduct was authorized or required by
law.
(3) The defense that the act of the employee which
gave rise to the claim was within the policymaking
discretion granted to the employee by law. For
purposes of this subsection, all acts of members of
the governing body of a local agency or of the chief
executive officer thereof are deemed to be within
the policymaking discretion granted to such person
by law.
42 Pa.C.S. 8546.
[Section] 8548(a). Indemnity by Local Government.
When an action is brought against an employee of a local
agency for damages on account of an injury to a person or
property, and he has given timely prior written notice to
the local agency, and it is judicially determined that an act
of the employee caused the injury and such act was, or that
the employee in good faith reasonably believed that such
act was, within the scope of his office or duties, the local
agency shall indemnify the employee for the payment of
any judgment on the suit.
42 Pa.C.S. 8548(a).
[Section] 8549. Limitation on Damages.
In any action brought against an employee of a local
agency for damages on account of an injury to a person or
property in which it is judicially determined that the act of
the employee caused the injury and that such act was, or
that the employee in good faith reasonably believed that
such act was, within the scope of his office or duties,
damages shall be recoverable only within the limits set
forth in this subchapter.
42 Pa.C.S. 8549.
10
[Section] 8550. Willful Misconduct.
In any action against a local agency or employee thereof
for damages on account of an injury caused by the act of
the employee in which it is judicially determined that the
act of the employee caused the injury and that such act
constituted a crime, actual fraud, actual malice or willful
misconduct, the provisions of sections 8545 (relating to
official liability generally), 8546 (relating to defense of
official immunity), 8548 (relating to indemnity) and 8549
(relating to limitation on damages) shall not apply.
42 Pa.C.S. 8550.
With these statutory provisions as a backdrop, we reason as follows.
C. Analysis
Our Supreme Court has explained:
The Commonwealth Court “is obligated to apply an abuse
of discretion standard in reviewing a trial court’s denial of
a motion for a new trial, and may overturn the trial court’s
determination only if that court abused its discretion.”
Ball v. Bayard Pump & Tank Co., . . . 67 A.3d 759, 767
(Pa. 2013) (citation omitted). . . . “A charge will be found
adequate unless ‘the issues are not made clear to the jury
or the jury was palpably misled by what the trial judge said
or unless there is an omission in the charge which amounts
to fundamental error.’” Stewart v. Motts, . . . 654 A.2d
535, 540 (Pa. 1995) (citations omitted). . . . “The harmless
error doctrine underlies every decision to grant or deny a
new trial. A new trial is not warranted merely because
some irregularity occurred during the trial or another trial
judge would have ruled differently; the moving party must
demonstrate to the trial court that he or she has suffered
prejudice from the mistake.” Harman ex rel. Harman v.
Borah, . . . 756 A.2d 1116, 1122 (Pa. 2000).
Grove v. Port Auth. of Allegheny Cnty., 218 A.3d 877, 887-88 (Pa. 2019).
11
Here, Police Officers assert that the Trial Court committed errors of law
by refusing to instruct the jury on willful misconduct under the Tort Claims Act and
by declining to include an interrogatory on the jury slip regarding willful
misconduct. We agree.
1. Legal Basis for the Requested Jury Instructions
The Trial Court’s stated reason at trial for refusing the requested jury
instructions was solely that they were based on case law rather than the Pennsylvania
Suggested Standard Civil Jury Instructions (SSJIs). RR at 369a-70a & 380a-81a.
The SSJIs are not binding, however, and a trial court does not err by basing an
instruction on case law instead. See City of Phila. v. Duda by Duda, 595 A.2d 206,
211 (Pa. Cmwlth. 1991). Moreover, not every possible issue that may arise in every
possible case has been included in the SSJI. Therefore, the mere absence of an SSJI
on a specific topic does not mean that no instruction on that topic should be given,
where it is relevant to the jury’s decision. We conclude that where a particular point
of law is not the subject of an SSJI but has been established by applicable case law
and is at issue in a given case, a trial court should instruct the jury on that point based
on the established case law. Accordingly, we further conclude that the Trial Court
here erred by refusing to instruct the jury concerning willful misconduct under
applicable case law where that issue was relevant to the jury’s verdict, even though
it was not the subject of an SSJI.
2. Willful Misconduct as a Bar to Immunity
In its written opinion pursuant to Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, Pa.R.A.P. 1925(a) (1925 Opinion) filed after Police
12
Officers filed their notice of appeal to this Court, the Trial Court posited that its
refusal to instruct the jury concerning willful misconduct was not error because the
issue of willful misconduct relates only to indemnity, not immunity, under the Tort
Claims Act. 1925 Opinion at 4. Therefore, according to the Trial Court’s reasoning,
“[t]he failure by the jury to reach the question of ‘willful misconduct’ does not
preclude a finding of liability against [Police Officers] for assault and battery.” Id.
We disagree.
In Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994), a jury in a
federal action found Renk, a city police officer, liable to an arrestee for the torts of
assault, battery, false imprisonment, and infliction of emotional distress. See id. at
291. Renk then brought a separate state court action against the city seeking
indemnification. Id. The city argued to the trial court that Renk was estopped from
requesting indemnification, but the trial court rejected that argument, concluding
there was no indication that the jury in the federal action had considered or decided
the issue of willful misconduct so as to bar a separate indemnity claim. Id. This
Court reversed, holding that intentional torts necessarily constituted willful
misconduct. Id. at 291-92.
The Pennsylvania Supreme Court granted an appeal “to consider
whether a determination of liability for tortious conduct is the equivalent of a judicial
determination of willful misconduct sufficient to preclude indemnification for the
payment of a judgment entered in the action.” Renk, 641 A.2d at 292. In reversing
this Court’s decision, our Supreme Court acknowledged that a police officer may be
found to have committed assault and battery when “the force used in making an
arrest is unnecessary or excessive[,]” but such conduct may conceivably occur
“under circumstances which demonstrate that the officer did not intentionally use
13
unnecessary and excessive force . . . .” Id. at 293-94. In Renk, the record was
“unclear whether the jury in the federal action determined that Renk intentionally
used excessive force . . . , or only that he intentionally used force.” Id. at 294.
Observing that “[t]he [c]ity relied solely upon the jury’s verdict in the federal action
and did not introduce any other evidence to support its claim that Renk’s acts were
willful misconduct[,]” the Court held that “[t]he jury verdict alone [was] insufficient
to establish willful misconduct . . . .” Id.5
This Court recently discussed and applied the holding of Renk in York
v. Kanan, 298 A.3d 533 (Pa. Cmwlth. 2023). In York, an arrestee sued two police
officers for malicious prosecution after he was acquitted of the charges on which he
had been arrested. The trial court reasoned that Section 8550 of the Tort Claims Act,
relating to willful misconduct, was applicable to immunity as well as to indemnity.
Therefore, the trial court concluded that a separate finding of willful misconduct was
required in order to defeat immunity and impose liability, and the trial court
instructed the jury accordingly. See York, 298 A.3d at 539. On appeal, this Court
agreed, explaining:
The Supreme Court’s holding in Renk explains why the
question of tort liability and willful misconduct must be
posed and answered separately, when the Court
articulated a scenario in which an officer could be found
[to have committed] an intentional tort, but still retain his
right to official immunity or indemnification if the trier
of fact found him not to have committed willful
misconduct. Renk, 641 A.2d at 293-94. A similar
situation occurred in Cruz [v. MaDonna (Pa. Cmwlth., No.
1748 C.D. 2015, filed January 27, 2017), appeal dismissed
5
Our Supreme Court in Renk distinguished this Court’s reasoning in King v. Breach, 540
A.2d 976 (Pa. Cmwlth. 1988), in which we equated intentional torts with willful misconduct; our
Supreme Court concluded that our reasoning in King was inapplicable to cases involving police
officers. Renk, 641 A.2d at 293.
14
as improvidently granted, 200 A.3d 440 (Pa. 2019)], and
our Court affirmed the verdict below that found the officer
liable for an intentional tort, but still entitled to
indemnification after a finding of no willful misconduct.
Cruz, slip op. at 7.[6] Although those cases addressed the
interplay between an intentional tort and willful
misconduct [solely] in the context of indemnity, they do
not serve to limit the analysis to indemnity only, when the
plain language of Section 8550 applies to both immunity
and indemnity.
Id. at 546 (emphasis added). See also Pettit v. Namie, 931 A.2d 790, 801 (Pa.
Cmwlth. 2007) (quoting Williams v. City of Phila., 569 A.2d 419, 421–22 (Pa.
Cmwlth. 1990) and explaining that, absent willful misconduct, a public employee is
immune from liability under the Tort Claims Act).
6
In Cruz v. MaDonna (Pa. Cmwlth., No. 1748 C.D. 2015, filed January 27, 2017), appeal
dismissed as improvidently granted, 200 A.3d 440 (Pa. 2019), this Court acknowledged our
Supreme Court’s decision in Renk as constituting a “rejection of the notion that an intentional tort
is synonymous with willful misconduct . . . .” Id., slip op. at 4 (citing Renk) (additional citation
omitted). Nonetheless, this Court in Cruz distinguished between immunity and indemnity as
affected by willful misconduct:
One can have an honest belief that his actions are justified. It is,
however, within the jury’s province to find that such actions were
not justified, despite the actor’s belief to the contrary. In such
situations, under Renk, the trier of fact can find the officer not
immune, but nevertheless not so unjustified in his subjective belief
as to lose his right to indemnification.
Id., slip op. at 7. Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported
decision of this Court issued after January 15, 2008, although not binding authority, may be cited
for its persuasive value. See 210 Pa. Code § 69.414(a). Here, however, we are not persuaded by
the analysis of Renk set forth in Cruz. Specifically, we reject the suggestion in Cruz that, under
Renk, willful misconduct is not required for the imposition of liability for an intentional tort by a
police officer. Rather, immunity was not raised as an issue in Renk, so our Supreme Court
discussed only indemnification. That does not mean, however, that its analysis was not equally
applicable to the question of immunity. Based on our reasoning here in York, which is binding
authority, we reject such a distinction and decline to apply the analysis of Renk contained in Cruz.
15
Here, unlike in Renk and Cruz, the specific issue is immunity, not
merely indemnity, of police officers regarding liability for intentional torts.
Consistent with our precedential conclusion in York, supported by our earlier
decisions in Pettit and Williams, we agree with Police Officers that our Supreme
Court’s analysis in Renk and our reasoning in Cruz do not support the Trial Court’s
refusal of Police Officers’ proffered jury instruction and related verdict slip
interrogatory concerning willful misconduct in this case.7 The Renk Court explained
that a jury’s finding that a police officer committed intentional torts, including
assault, battery, and intentional infliction of emotional distress, does not equate to a
finding of willful misconduct. See Renk, 691 A.2d at 293-94. This Court recently
reached a similar conclusion in York, as discussed above. See 298 A.3d at 544
(quoting Cruz and explaining that a jury may find a police officer committed an
intentional tort despite the officer’s subjective belief that his conduct was legally
permissible). We conclude, therefore, that the Trial Court committed a fundamental
error by declining to instruct the jury and include a jury interrogatory concerning
possible willful misconduct by Police Officers.8
The Trial Court’s error was also prejudicial to Police Officers. As
stated above, Police Officers were entitled to immunity from liability for intentional
7
This is particularly true because, as stated above, the Trial Court, in the charge conference,
did not base its refusal of the requested jury instruction on a conclusion that willful misconduct
was synonymous with an intentional tort but, rather, only on the trial judge’s standard practice of
refusing requested jury instructions that were based on case law rather than the SSJIs. See RR at
369a-70a & 380a-81a. The Trial Court suggested only later, in its 1925(a) Opinion, that willful
misconduct was relevant to indemnity but not immunity. See 1925 Opinion at 4.
8
We express no opinion whether there may exist specific circumstances under which
willful misconduct may necessarily be subsumed within the elements of an intentional tort, as
applied to those circumstances, such that no separate finding of willful misconduct would be
needed in order to defeat immunity.
16
torts in the absence of a finding of willful misconduct. By failing to provide the
requested jury instruction and verdict slip interrogatory, the Trial Count allowed the
jury to impose liability without the finding of willful misconduct that was necessary
in order to defeat immunity.
IV. Conclusion
Because the Trial Court’s error was fundamental and caused prejudice
to Police Officers, we vacate the Trial Court’s judgment and remand for a new trial
at which both the jury instructions and verdict slip will require the jury to address
the question of willful misconduct.
__________________________________
CHRISTINE FIZZANO CANNON, Judge
Judge Wolf did not participate in the decision in this case.
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Reginald Scott :
:
v. :
:
Philadelphia Police Officer :
Brian Canela-Perez and :
George Lutz, : No. 990 C.D. 2023
Appellants :
ORDER
AND NOW, this 14th day of August, 2025, the judgment of the Court
of Common Pleas of Philadelphia County is VACATED. This matter is
REMANDED for a new trial at which both the jury instructions and verdict slip will
address the question of willful misconduct, consistent with the foregoing opinion.
Jurisdiction is relinquished.
__________________________________
CHRISTINE FIZZANO CANNON, Judge