The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shiretta Justice :
:
v. : No. 1439 C.D. 2016
: Argued: June 9, 2020
Pennsylvania State Police :
Trooper Lombardo, :
Appellant :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE BROBSON FILED: August 11, 2020
Appellant Pennsylvania State Police (PSP) Trooper Joseph Lombardo
(Trooper Lombardo) appeals from an order of the Court of Common Pleas of
Philadelphia County (trial court), dated July 19, 2016. Following a jury trial and the
trial court’s denial of a post-trial motion filed by Trooper Lombardo, the trial court
entered a final judgment in favor of Appellee Shiretta Justice (Ms. Justice) and
against Trooper Lombardo in the amount of $160,000. For the reasons that follow,
we affirm the trial court’s order.
I. BACKGROUND
Trooper Lombardo was on duty, in uniform, in a marked PSP vehicle
patrolling I-76 near Philadelphia on November 27, 2013. Ms. Justice was driving
westbound on I-76 when Trooper Lombardo motioned for her to pull her car over to
the side of the highway for a vehicle violation. After learning that Ms. Justice was
driving with a suspended license, Trooper Lombardo requested a tow truck to
remove her vehicle from the side of the highway and ultimately impound it.1
Ms. Justice, after her car was towed away, moved to the side of the highway behind
a barrier as she waited for a friend to give her and her stepson a ride home.
When Ms. Justice’s transport did not immediately arrive, Trooper Lombardo
decided that he would place Ms. Justice and her stepson into his patrol car and drive
them to a safe location off the highway. Trooper Lombardo testified that standing
on the side of the highway with cars “flying by” was a safety issue, that I-76 was a
very dangerous road, and that he wanted to put Ms. Justice and her stepson in his
patrol car so he could drive them to a safe location.
Ms. Justice refused to get into Trooper Lombardo’s patrol vehicle, so Trooper
Lombardo forcibly placed her in handcuffs, twisting her arm behind her back in the
process. Ms. Justice started screaming, twisting around, and pleading with Trooper
Lombardo. Trooper Lombardo told her to “calm down and stop acting like an
animal.” (Reproduced Record (R.R.) at 204a.) Approximately one minute later,
Trooper Lombardo removed her handcuffs and walked away. Ms. Justice and her
stepson then left the scene in her friend’s car, which had just arrived.2
Soon thereafter, Ms. Justice submitted an administrative complaint to PSP,
and PSP’s Bureau of Integrity and Special Standards (or Internal Affairs Division
(IAD)) conducted an investigation of the incident. Upon completion of the
1
Section 6309.2(a)(1) of the Vehicle Code, 75 Pa. C.S. § 6309.2(a)(1), requires that “[i]f
a person operates a motor vehicle . . . on a highway . . . of this Commonwealth while the person’s
operating privilege is suspended, . . . as verified by an appropriate law enforcement officer . . . ,
the law enforcement officer shall immobilize the vehicle . . . or, in the interest of public safety,
direct that the vehicle be towed.”
2
Ms. Justice’s stepson video recorded part of the encounter on his mobile phone, and the
video recordings were viewed by the jury and entered into evidence at the trial.
2
investigation, Captain James Raykovitz (Cpt. Raykovitz), Commanding Officer of
PSP Troop K Philadelphia Headquarters, sent Ms. Justice a letter explaining (in
relevant part), as follows:
I have completed my review of Internal Affairs Division
(IAD) Personnel Investigation # 2013-0777 which was
conducted as a result of the complaint you filed on
January 2, 2014. The IAD investigation addressed your
allegation of misconduct against a trooper under my
command.
After reviewing the investigative report, I also listened to
all recorded interviews and viewed all video files
associated with this investigation. As a result of this
review, I have concluded that there was a breakdown in
effective and accurate communication between you and
the trooper regarding the arrival of the help you had
contacted. The extended response time it took for your
acquaintance to get to the scene placed all of you in a more
dangerous situation on one of the more dangerous
highways in the area. While this led to a more stressful
environment, the actions of the trooper did not violate any
Department regulations.
The allegation of misconduct you made against the
member of the Pennsylvania State Police is[,] therefore,
Not Sustained. However, Trooper Lombardo will receive
training to ensure that he handles similar incidents in a
more succinct fashion.
(R.R. at 116a (emphasis in original).)
Ms. Justice then commenced this case by filing a complaint in the trial court,
naming Trooper Lombardo and PSP as defendants. She later amended her complaint
to name Trooper Lombardo as the sole defendant and accused him of the following
intentional torts: (1) assault; (2) battery; (3) invasion of privacy casting in a false
light; (4) intentional infliction of emotional distress; and (5) false arrest, false
imprisonment, and abuse of process.
3
Trooper Lombardo filed preliminary objections to the amended complaint,
asserting the defense of sovereign immunity. The trial court overruled Trooper
Lombardo’s preliminary objections. Trooper Lombardo then filed an answer to the
amended complaint, asserting that sovereign immunity protected him from liability.
At the close of discovery, Trooper Lombardo filed a motion for summary judgment,
again asserting the defense of sovereign immunity. The trial court denied his motion
for summary judgment without comment or opinion, and the case proceeded to a
jury trial in March 2016.
Trooper Lombardo, on the day before the jury trial, filed a bench
memorandum of law/demurrer seeking to dismiss the claims against him based on
sovereign immunity. The trial court, prior to the jury panel being sworn in, denied
Trooper Lombardo’s demurrer and determined that the jury trial would proceed.
Trooper Lombardo’s attorney then informed the trial court and Ms. Justice’s
attorneys that Cpt. Raykovitz,3 who wrote a letter to Ms. Justice indicating the
outcome of the IAD investigation, could not attend the jury trial because he was on
vacation.4 Trooper Lombardo wanted either to enter Cpt. Raykovitz’s letter into
evidence or offer testimony that he was “cleared” in the IAD investigation. The trial
court informed Trooper Lombardo’s attorney that he needed the right witness to
3
At the jury trial, the parties’ attorneys referred to “Captain Raykovitz” as “Catherine
Raykovitz.” (R.R. at 188a, 189a.) Upon completion of the IAD investigation, however, “James
Raykovitz” signed the letter that was sent to Ms. Justice informing her of its outcome. For
purposes of this appeal, we are considering Cpt. James Raykovitz to be the author of the letter, as
well as the person that Trooper Lombardo intended to present as a witness at the jury trial. (R.R.
at 165a.)
4
Trooper Lombardo, in addition to Cpt. James Raykovitz, identified Sergeant James
Hennigan (Sgt. Hennigan), who worked in the IAD, as a potential trial witness in his January 2016
settlement memorandum filed with the trial court. (R.R. at 165a.) A potential trial exhibit in that
same memorandum is also identified as “Sergeant Hennigan’s internal investigation report.”
(R.R. at 166a.)
4
testify about the letter or that he was “cleared” in the IAD investigation, otherwise
it would be considered hearsay and not admitted into evidence. The jury then entered
the courtroom, the trial court gave preliminary instructions, the attorneys made their
opening arguments, and Ms. Justice commenced her case.
In addition to testifying about the November 27, 2013 incident, Ms. Justice
testified that she felt “embarrassed, humiliated, disrespected, victimized, and afraid”
when she was handcuffed in front of her stepson. Ms. Justice stated that she was
injured during the incident. Her arm was twisted and very sore and her wrists hurt
because Trooper Lombardo twisted them in a very awkward position. She also
stated that the handcuffs were tight, and she injured her back. When Ms. Justice was
asked if she ever hurt her neck or back prior to the incident, she testified that
in 2011 she was in an accident on a bus that required a few months of medical
treatment. She also stated that prior to the incident she had sporadic neck and back
pain, but she was not taking medication for it at the time of the incident.
Ms. Justice sought medical treatment at Eastern Orthopedics Association. She
received physical therapy for four to six months and took pain medications for
several months. Ms. Justice introduced into evidence the bill from Eastern
Orthopedics Association in the amount of $8,933. Ms. Justice’s physical therapy
and pain in her wrist and arm limited her cosmetology work. Ms. Justice introduced
into evidence a chart establishing $9,095 worth of lost income due to missed
hairstyling appointments. Ms. Justice also obtained mental health services a few
days after the incident because she was anxious, depressed, and not sleeping well.
Ms. Justice received treatment from Anita Gordan Bell, Psy. D., who had been her
regular therapist for several years prior to the incident. Ms. Justice produced a bill
5
from Dr. Bell in the amount of $1,750 that the trial court admitted into evidence.
Ms. Justice rested her case.
Trooper Lombardo then moved for judgment as a matter of law on sovereign
immunity grounds. The trial court denied the motion and stated that it was up to the
jury to make the factual determination on whether Trooper Lombardo was acting
within the scope of his employment when he handcuffed Ms. Justice. Trooper
Lombardo commenced his case.
Trooper Lombardo, in addition to testifying about the November 27, 2013
incident, admitted that after the incident he attended additional training on traffic
stops. Trooper Lombardo admitted that he completed and submitted a “Live-Stop”
form on the day of the incident. On redirect examination, Trooper Lombardo
explained that the Live-Stop Program is used exclusively in the City of Philadelphia
concerning the towing of cars and the Philadelphia Parking Authority.5 On re-cross
examination, Trooper Lombardo admitted he seized Ms. Justice’s vehicle pursuant
to the Philadelphia Live-Stop Program. Trooper Lombardo testified that he was not
familiar with Philadelphia’s Live-Stop policies on whether witnesses have a right to
refuse transport in a patrol car.
Trooper Lombardo called PSP Corporal Derek Watford (Cpl. Watford) to
testify during the trial. Cpl. Watford was assigned to the PSP Belmont Barracks and
was familiar with the rules governing PSP trooper patrols. Cpl. Watford stated that
when a car is towed from a limited access highway by a trooper during a traffic stop,
the trooper cannot leave the car’s occupants on the side of the highway and must
5
“Philadelphia’s ‘Live Stop’ Program ‘involves the immediate towing and impoundment
of vehicles found to be operating in violation of certain state motor vehicle statutes.’” Smith v.
City of Phila., 147 A.3d 25, 27 n.3 (Pa. Cmwlth. 2016) (quoting Phila. Parking Auth. v. Am. Fed’n
of State, Cty., Mun. Employees, Dist. Council 33, Local 1637, 845 A.2d 245, 246 (Pa.
Cmwlth. 2004)).
6
transport them to a place of safety. Cpl. Watford further testified that this was
pursuant to PSP’s Field Regulations Manual (FRM), Section 7-2, titled “Prisoner
Security and Transportation,” subsection 2.03, titled “Prisoner and Vehicle
Searches,” which establishes that anyone transported in a PSP vehicle “shall be
searched, patted down for weapons and handcuffed for the safety of the [trooper] as
well as the individual being transported.” (R.R. at 230a.) The trial court asked if
there is a specific regulation that discusses not leaving people on the side of the
highway, and Cpl. Watford replied that there was not a specific regulation, but
troopers at Belmont Barracks are instructed not to leave people on the side of the
highway. Trooper Lombardo concluded his case.
Trooper Lombardo sought a directed verdict based on sovereign immunity.
The trial court denied the motion on the basis that whether Trooper Lombardo acted
within the scope of his employment when he handcuffed Ms. Justice was a question
of fact for the jury to decide. After the attorneys’ closing arguments and the trial
court’s jury instructions, the jury returned a verdict in favor of Ms. Justice on all her
claims and awarded her a lump sum of $160,000 in damages.
Trooper Lombardo filed a motion for post-trial relief, seeking judgment
notwithstanding the verdict (JNOV) or, in the alternative, a new trial. Trooper
Lombardo argued that the claims against him were barred as a matter of law because
of sovereign immunity. Trooper Lombardo claimed that he was entitled to a new
trial because: (1) the trial court made improper evidentiary rulings that prevented
him from developing his scope of employment argument; (2) the trial court charged
the jury incorrectly; and (3) the damages awarded against him were unsupported and
grossly excessive. The trial court denied Trooper Lombardo’s JNOV motion and
7
refused to grant him a new trial. Trooper Lombardo appealed the decision to this
Court.
This Court considered Trooper Lombardo’s appeal in Justice v. Lombardo,
173 A.3d 1230 (Pa. Cmwlth. 2017) (Justice I), rev’d, 208 A.3d 1057 (Pa. 2019)
(Justice II), wherein Trooper Lombardo argued that he acted within the scope of his
employment as a trooper with PSP when he handcuffed Ms. Justice after pulling her
over for traffic violations. We reviewed the Commonwealth’s sovereign immunity
statute and found that as a matter of law “[a] Commonwealth employee (such as a
PSP trooper) acting within the scope of his employment or duties is protected from
the imposition of liability for intentional tort claims by sovereign immunity.”
Justice I, 173 A.3d at 1238. We concluded that, viewing the evidence in the light
most favorable to Ms. Justice, the record demonstrated that Trooper Lombardo was
acting within the scope of his employment, and the trial court committed an error of
law in denying his JNOV motion. We reversed the trial court’s decision to deny
Trooper Lombardo’s motion for JNOV, and we remanded the case to the trial court
with instructions to enter judgment in favor of Trooper Lombardo. Id. at 1240.
Ms. Justice appealed our decision to the Pennsylvania Supreme Court.
On appeal, the Pennsylvania Supreme Court stated that whether the trooper
was acting within the scope of his employment was a question for the jury, and
because the jury’s determination was reasonably inferable from the facts, we erred
in disturbing the trial court’s verdict. The Supreme Court concluded that, viewing
the evidence in the light most favorable to Ms. Justice as the verdict winner,
sufficient competent evidence existed upon which the jury could have found that
Trooper Lombardo acted outside the scope of his employment. Justice II, 208 A.3d
at 1057. The Supreme Court, therefore, reversed our decision and remanded the case
8
to us to decide issues raised by Trooper Lombardo in his initial appeal that we did
not address in Justice I.
II. ISSUES
On remand, Trooper Lombardo argues that the trial court impaired his ability
to develop a sovereign immunity defense by precluding him from presenting any
evidence about the progress of the IAD investigation into his conduct, including the
conclusion that he acted in compliance with PSP regulations. Trooper Lombardo
claims that the trial court committed an error of law and abused its discretion when
it denied him a new trial because the trial court’s scope-of-employment instruction
to the jury was tainted by an illogical, unwarranted, and confusing legal
pronouncement. Trooper Lombardo submits that he is entitled to a new trial on the
merits, or in the alternative, solely on damages, because the verdict in favor of
Ms. Justice was unsupported by the evidence, and is so excessive that it appears to
have been based on prejudice, passion, or another improper factor.
III. DISCUSSION
We begin by reviewing the law as it relates to our review of a trial court’s
denial of a party’s motion for a new trial. “It is a fundamental and longstanding
precept that the decision to order a new trial is one that lies within the discretion of
the trial court.” Coker v. S.M. Flickinger Co., Inc., 625 A.2d 1181, 1184 (Pa. 1993).
“‘The grant of a new trial is an effective instrumentality for seeking and achieving
justice in those instances where the original trial, because of taint, unfairness[,] or
error, produces something other than a just and fair result, which, after all, is the
primary goal of all legal proceedings.’” Harman ex rel. Harman v. Borah, 756 A.2d
1116, 1121 (Pa. 2000) (quoting Dornon v. McCarthy, 195 A.2d 520, 522 (Pa. 1963)).
A review of a denial of a new trial requires the same analysis as a review of a grant.
9
Id. at 1122. An appellate court must follow a two-step analysis for review of a trial
court’s determination to grant or deny a new trial. Id. The appellate court must first
examine the trial court’s decision to determine if a mistake occurred. Id. If a mistake
occurred, the appellate court must determine whether the trial court abused its
discretion or committed legal error in ruling on the request for a new trial. Id.
at 1123. “A finding by an appellate court that it would have reached a different
result than the trial court does not constitute a finding of an abuse of discretion.” Id.
“The moving party must demonstrate that he or she suffered prejudice from the
mistake.” Carletti v. Dep’t of Trans., 190 A.3d 766, 780 (Pa. Cmwlth. 2018), appeal
denied, 204 A.3d 370 (Pa. 2019). “Where the record adequately supports the trial
court’s reasons and factual basis, the court did not abuse its discretion.” Id.
Not every mistake by a trial court warrants a new trial, and a court will not
reverse a decision for harmless error. Paley v. Trautman, 177 A. 819, 820
(Pa. 1935). “It is well settled that ‘an appellate court has the ability to affirm a valid
judgment or verdict for any reason appearing as of record.’” Cmwlth. v. Allshouse,
36 A.3d 163, 182 (Pa. 2012) (quoting Cmwlth. v. Parker, 919 A.2d 948, 848
(Pa. 2007)), cert. denied, 569 U.S. 972 (2013). “The doctrine of harmless error is a
technique of appellate review designed to advance judicial economy by obviating
the necessity for a retrial where the appellate court is convinced that a trial error was
harmless beyond a reasonable doubt. Its purpose is premised on the well-settled
proposition that ‘[a] defendant is entitled to a fair trial but not a perfect one.’”
Cmwlth. v. Thornton, 431 A.2d 248, 251 (Pa. 1981) (quoting Lutwak v. U.S.,
344 U.S. 604, 619 (1953)).
10
A. Sovereign Immunity Defense
With this framework in mind, we must first review Trooper Lombardo’s
sovereign immunity defense as it relates to the trial court’s alleged errors in this case.
Pennsylvania law affords sovereign immunity to “[t]he Commonwealth, and its
officials and employees acting within the scope of their duties.” 1 Pa. C.S. § 2310.
Pursuant to Section 8521 of the Judicial Code, 42 Pa. C.S. § 8521, “[a]n employee
of the Commonwealth (such as [a PSP trooper]), acting within the scope of his
employment or duties, is protected from the imposition of liability for intentional tort
claims by sovereign immunity.” Holt v. Nw. Pa. Training P’ship Consortium, Inc.,
694 A.2d 1134, 1140 (Pa. Cmwlth. 1997) (emphasis added). 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, 694 A.2d at 1140 (emphasis added). Whether a person acted within
the scope of employment is ordinarily a question for the jury. Orr v. William J.
Burns Int’l Detective Agency, 12 A.2d 25, 27 (Pa. 1940).
Trooper Lombardo argues that “[o]ne lesson to be drawn from the Supreme
Court’s decision in [Justice II] is that determining whether a person’s actions were
indeed within the scope of employment (for sovereign immunity purposes or
otherwise) can be quite complicated.” (Appellant’s Supplemental Reply Brief at 2.)
Trooper Lombardo submits:
If an employer has independently concluded (especially
pre-litigation) that an employee’s conduct was acceptable,
that suggests that the conduct in question, by the
employee, was within the scope of employment. This is
why Trooper Lombardo wanted to elicit evidence
regarding [PSP’s] disposition of Ms. Justice’s complaint
against him, finding in his favor. The trial court’s refusal
11
to allow him to do so—when cross-examining Ms. Justice,
or when testifying himself, or both—was erroneous. That
error . . . must be rectified through the grant of Trooper
Lombardo’s new trial request.
(Id. at 3 (footnotes omitted)). Trooper Lombardo also contends that the jury was left
with the false impression that PSP neglected to complete an investigation on
Ms. Justice’s complaint or inform her of the result of the investigation. (Appellant’s
Brief at 28.) While Ms. Justice explicitly recognizes that Trooper Lombardo’s
“purpose” in bringing up the IAD investigation was to clarify his immunity defense,
she also argues that any investigation-related testimony elicited by the defense
would have amounted to inadmissible hearsay. (Appellee’s Brief at 12, 13.) The
trial court agreed with Ms. Justice’s argument. (Trial Ct. Op. at 8-10.)
1. PSP Investigation Letter
In determining whether the trial court’s evidentiary decisions were “mistakes”
that affected Trooper Lombardo’s ability to develop his sovereign immunity
defense, we begin with the admissibility of Cpt. Raykovitz’s letter to Ms. Justice
about the IAD investigation. Trooper Lombardo’s attorney, during the
cross-examination of Ms. Justice, attempted to have her authenticate the letter she
received from Cpt. Raykovitz concerning the outcome of her complaint to the IAD.
(R.R. at 208a.) Without allowing Ms. Justice to authenticate the letter, the trial court
ruled that the letter was hearsay. (Id. at 209a.) “‘Hearsay’ means a statement
that (1) the declarant does not make while testifying at the current trial or hearing;
and (2) a party offers in evidence to prove truth of the matter asserted in the
statement.” Pa. R.E. 801(c). “‘Statement’ means a person’s oral assertion, written
assertion, or nonverbal conduct if the person intended it as an assertion.”
Pa. R.E. 801(a). “‘Declarant’ means the person who made the statement.”
Pa. R.E. 801(b). Generally, hearsay is not admissible except as provided under
12
the Pennsylvania Rules of Evidence, by other rules prescribed by the Pennsylvania
Supreme Court, or by statute. Pa. R.E. 802. There are numerous exceptions to the
hearsay rule set forth in Pa. R.E. 803, but, for purposes of our decision in this case,
we focus on whether the situations at issue meet the hearsay definition.
Cpt. Raykovitz, as stated in his letter to Ms. Justice, reviewed the IAD
investigation, listened to all recorded interviews, and viewed all the video files
associated with the investigation. After his review, Cpt. Raykovitz concluded
that: (1) there was a breakdown in effective and accurate communication between
Trooper Lombardo and Ms. Justice regarding the arrival time of Ms. Justice’s
acquaintance to give her a ride; (2) the extended response time placed Ms. Justice,
her stepson, and Trooper Lombardo in a more dangerous situation on an already
dangerous highway; (3) Trooper Lombardo’s actions did not violate any PSP
regulations; and (4) while not sustaining Ms. Justice’s complaint allegations,
Trooper Lombardo would receive training to ensure that he handles similar incidents
in a more succinct fashion. (R.R. at 116a.) In this case, had Cpt. Raykovitz not
been on vacation the day of the jury trial, he would have testified about the IAD
investigation and how he reached his conclusions without the need for the letter to
be entered into evidence.6
6
We agree with the trial court that due to the absence of Cpt. Raykovitz at the jury trial, if
Trooper Lombardo’s attorney wanted to provide the jury with information about Cpt. Raykovitz’s
investigation, he could have called another person to testify at trial who had direct knowledge and
was involved with the investigation. (Trial Ct. Op. at 9.) Interestingly, Trooper Lombardo listed
Sgt. Hennigan as a potential trial witness in his January 2016 settlement memorandum filed with
the trial court, and Sgt. Hennigan appears to have been directly involved in the IAD investigation.
(R.R. at 165a, 166a.) While we can only speculate why Sgt. Hennigan did not testify at the trial,
we note that Trooper Lombardo’s attorney neither requested that the trial court postpone the jury
trial until Cpt. Raykovitz or Sgt. Hennigan became available to testify, nor did he procure a
subpoena for Cpt. Raykovitz to testify notwithstanding his vacation.
13
Throughout the jury trial, Trooper Lombardo’s attorney attempted various
methods to get the results of the IAD investigation and Cpt. Raykovitz’s conclusions
into evidence. In this instance, the trial court properly concluded that
Cpt. Raykovitz’s letter was hearsay. The declarant, Cpt. Raykovitz, who did not
testify at the jury trial, made statements in his letter to Ms. Justice that her complaint
against Trooper Lombardo was not sustained, and Trooper Lombardo attempted to
offer into evidence at trial those out-of-court statements to prove the truth of the
statements. We conclude, therefore, that the trial court did not err by refusing to
allow Cpt. Raykovitz’s letter into evidence, because the statements therein
constituted inadmissible hearsay.
2. Ms. Justice’s Testimony
Next, we review the trial court’s ruling as it relates to Ms. Justice’s testimony
involving the conclusions of the IAD investigation of her complaint. Ms. Justice
testified on direct examination that the day after the incident she filed a complaint
with PSP. (R.R. at 207a.) On cross-examination, Ms. Justice admitted that she was
interviewed by an IAD officer, that he asked her about the entire incident, and that
he watched the videos of the incident in her presence. (R.R. at 208a.) When
Trooper Lombardo’s attorney asked Ms. Justice if she knew the outcome of her PSP
complaint, Ms. Justice’s attorney objected to the potential answer as hearsay.
(Id. at 208a, 209a.) The trial court sustained the objection. (Id. at 209a.) Trooper
Lombardo argues that the trial court erred in sustaining Ms. Justice’s hearsay
objection and directs our attention to three Pennsylvania Supreme Court cases to
support his argument that Ms. Justice’s response to the question would not constitute
hearsay.
14
Trooper Lombardo first directs our attention to Commonwealth v. Sampson,
311 A.2d 624 (Pa. 1973), wherein the appellant was found guilty of burglary,
murder, and aggravated robbery of the decedent who was found lying on the floor
behind the counter of his grocery store suffering from numerous fatal knife wounds.
Sampson, 311 A.2d at 625. The appellant signed a statement which was admitted
into evidence at trial that described the incident of decedent’s death, alleging that a
friend named Mingo also participated in the crimes. At the jury trial, a police
detective testified on redirect examination, over the objections of the appellant’s
attorney, that he spoke with Mingo and Mingo denied participating in the crime.
On appeal, the appellant argued that the detective’s testimony about what
Mingo said to him was hearsay. The Pennsylvania Supreme Court disagreed and
held that “[t]estimony as to an out-of-court statement is not hearsay if offered to
prove, not that the content of the statement was true, but that the statement was
made.” Id. at 626. The Supreme Court reasoned that the statements by Mingo that
“he was not involved in the killing of the decedent were offered not for their
truthfulness, but to show that the statements were made, thus explaining, in part,
why the police did not arrest and charge ‘Mingo.’” Id.
Trooper Lombardo next directs the Court’s attention to Harmon v. Mifflin
County School District, 713 A.2d 620 (Pa. 1998), wherein the school district
terminated Harmon’s employment based on improper conduct when he provided
money for marijuana to another district employee named Wagner. Harmon
challenged the termination decision. At his hearing, it was revealed that the district
superintendent’s inquiry into the matter was prompted by his receipt of a copy of a
PSP criminal complaint and arrest warrant filed against district employee Wagner,
charging him “with conspiring with several individuals to possess and deliver
15
marijuana.” Harmon, 713 A.2d at 621. The criminal complaint included the name
of another district employee, Osborne. The superintendent testified at Harmon’s
administrative hearing that when he confronted Wagner the day after his arrest, he
freely admitted the allegations were true and ultimately provided the superintendent
with Harmon’s name as a participant in the crime. Similarly, the superintendent
spoke with Osborne, who implicated Harmon as a past purchaser from Wagner and
an observed visitor at Wagner’s home.
The superintendent testified at the hearing regarding the statements of Wagner
and Osborne. Harmon’s attorney objected to the superintendent’s testimony on
hearsay grounds. In response, the district argued that the testimony about the
superintendent’s interviews with Wagner and Osborne was being offered as
background information relevant to the circumstances of the superintendent’s
confrontations with Harmon and “not for the truth of any out[-]of[-]court statement
referenced therein.” Id. at 622. The Supreme Court agreed with the district and
clarified that “[o]ut[-]of[-]court statements may be admitted as background
information and their use in this regard is not hearsay. The truth of the statements
admitted is immaterial as they are offered for their effect on the hearer to explain his
response thereto.” Id. at 622 n.2 (citing Sampson, 311 A.2d at 626).
Trooper Lombardo lastly directs our attention to Commonwealth v. Jacobs,
284 A.2d 717 (Pa. 1971), cert. denied, 409 U.S. 856 (1972), wherein the appellant,
who was found guilty by a jury of first-degree murder and aggravated robbery,
appealed his sentence of life imprisonment. During the appellant’s jury trial, a
witness, who lived within a block of the victim’s store, testified that “she saw
appellant approximately fifteen minutes before she heard from her father that [the
victim] had been shot.” Jacobs, 284 A.2d at 719. The appellant argued that the
16
witness’s statement was hearsay. The Supreme Court disagreed, concluding that
“[i]t was not offered to prove the truth asserted by the out-of-court declarant, her
father[,] . . . [and] [t]he hearsay rule has no application where the question is whether
certain things were said or written by a third person and not whether they are true.”
Id.
The logic of Sampson, Harmon, and Jacobs, persuades us to focus on the
purpose of the questions and statements to be elicited—if the goal of the questions
is to prove the truth of the matter asserted in the out-of-court statements intended to
be elicited, then the questions elicit hearsay testimony. In the present case,
Trooper Lombardo argues that he wanted the jury to be aware that the IAD
investigated Ms. Justice’s complaint and reached a determination about its merits.
Ms. Justice, who was testifying at the jury trial, had personal knowledge about the
investigation’s outcome because she received a letter from Cpt. Raykovitz,
informing her that her complaint was not sustained. Trooper Lombardo contends
that the purpose of Ms. Justice’s in-court statement was to prove that PSP did not
ignore her complaint, and in this instance, it was not offered for the purpose of
proving that Cpt. Raykovitz’s conclusion was correct. He further contends that if
Trooper Lombardo’s attorney followed-up his question to Ms. Justice with questions
seeking to prove that Cpt. Raykovitz was correct in his determination that her
complaint was not sustained, then questions would seek to elicit hearsay, but that is
not what occurred in this case. Even if we were to agree with Trooper Lombardo
that the intent behind the line of questioning was to inform the jury that PSP did not
ignore Ms. Justice’s complaint, we would still conclude that any mistake on the part
of the trial court that may have left the jury with the false impression that PSP
17
neglected to complete an investigation of Ms. Justice’s complaint constituted
harmless error. Any resulting prejudice to Trooper Lombardo was de minimis.
First, although Trooper Lombardo was the subject of the investigation, he had
no power to determine how the IAD would conduct the investigation, and there is
no evidence in the record that, beyond his involvement in the incident, he influenced
the outcome of the investigation. By the time of trial, PSP was no longer a party to
the action. Accordingly, even if we assume that the jury inferred from the evidence,
or lack thereof, a deficient investigation by the IAD, we are not persuaded that the
jury held Trooper Lombardo accountable for that deficiency in evaluating
Ms. Justice’s claims against him.
Second, when taking into consideration whether the jury got a false
impression that PSP neglected to do an investigation, we note that there were many
other facts for the jury to reconcile in reaching its verdict on whether
Trooper Lombardo acted within the scope of his employment. Among the facts the
jury needed to consider were: (1) the reason Trooper Lombardo was stopping
Ms. Justice; (2) the demeanor of both parties during their interaction; (3) the
sequence of events and conversations leading up to the physical interaction between
Trooper Lombardo and Ms. Justice; (4) whether Trooper Lombardo was required to
transport or handcuff Ms. Justice; and (5) the amount of force Trooper Lombardo
used against Ms. Justice when handcuffing her. Considering the multitude of facts
involved in the jury’s verdict, whether the jury falsely believed that PSP neglected
to investigate Ms. Justice’s claims constituted harmless error. We conclude that any
potential mistake on the part of the trial court amounted to a harmless error, and its
decision to deny Trooper Lombardo a new trial was not an abuse of discretion.
18
3. Trooper Lombardo’s Testimony
We next review the trial court’s evidentiary rulings as they relate to
Trooper Lombardo’s testimony. On direct examination, Trooper Lombardo’s
attorney asked Trooper Lombardo whether he learned that Ms. Justice filed a
complaint about the incident against him with PSP, to which he replied “yes.”
(R.R. at 215a.) The attorney also asked Trooper Lombardo if he knew what
happened with that complaint and what discipline, if any, resulted from the incident.
(Id.) Ms. Justice’s attorney objected to the questions, and the trial court and
attorneys went to sidebar. (Id.) The trial court construed the objection to be based
on relevance (not hearsay), and the following discussion occurred:
[Trooper Lombardo’s Attorney]: The relevance is that it’s
showing that he was in compliance with the law. He
wasn’t disciplined. This isn’t a hearsay issue.[7] The prior
issue. This is to find out if he was disciplined. I am telling
him to speak about a document. He would know.
The Court: What is the relevance? This is a separate
hearing with different—what is the standard of proof?
What is the cross-examination? Is it an open hearing? Is
the complaining person allowed to be present? None of
those protections are there and it’s just not going to be
allowed. It’s a different kind of proceeding altogether.
You’re trying to bolster his credibility by showing is [sic]
that within his employee/employer organization, they took
no action against him or that they did not find him what?
Violation of what? What are the charges? What is the
7
Trooper Lombardo argues, in part, that the trial court improperly excluded the testimony
as hearsay. (Appellant’s Supplemental Reply Brief at 5.) We agree with Trooper Lombardo that
the testimony would not be hearsay, as Trooper Lombardo had first-hand knowledge as to what
his employer concluded in the investigation of Ms. Justice’s complaint and whether he was subject
to discipline. Although the trial court incorrectly referred to the testimony as hearsay, it appears
that the trial court also excluded the testimony based on relevancy and potential prejudice. Thus,
if the trial court properly excluded the evidence based on relevancy and prejudice, then any error
in improperly excluding it based on hearsay would be harmless.
19
investigation? We don’t know all that, and it’s hearsay
because the investigating officer isn’t here. And can you
even tell me what was the, quote, finding?
[Trooper Lombardo’s Attorney]: Yeah.
Unsubstantiated.[8] This is all relevant because it goes to
scope of employment. The weight of it you can attack on
cross-examination.
....
The Court: I think all we know is that they ended up taking
no disciplinary action against him, and I don’t think it
anticipates any of those other questions. So for all of those
reasons, as well as the fact this is an entirely different
proceeding with different procedural safeguards, et cetera,
I’m not allowing it.
(Id. at 216a.) Trooper Lombardo’s attorney then asked him if he believed his action
complied with policy, to which Ms. Justice’s attorney objected, and the trial court
sustained the objection. (Id. at 216a, 217a.) Because the crux of the trial court’s
decision relates to the relevance of the IAD’s determination that Ms. Justice’s
complaint was not sustained, we will briefly review what constitutes relevant
evidence and when it can be excluded as unfairly prejudicial.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action.” Pa. R.E. 401. “Whether evidence has a tendency to make
a given fact more or less probable is to be determined by the court in the light of
reason, experience, scientific principles and other testimony offered in the case.”
8
Cpt. Raykovitz’s letter stated that Ms. Justice’s complaint was “not sustained.” Trooper
Lombardo’s attorney uses the term “unsubstantiated.” (R.R. at 140a, 216a.) While the term used
does not influence our decision in the case, we will use Cpt. Raykovitz’s language of “not
sustained” instead of “unsubstantiated” unless we are directly quoting a passage from the trial
transcript.
20
Pa. R.E. 401, Comment. A court, however, “may exclude relevant evidence if its
probative value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa. R.E. 403. “‘Unfair prejudice’
means a tendency to suggest [a] decision on an improper basis or to divert the jury’s
attention away from its duty in weighing the evidence impartially.” Pa. R.E. 403,
Comment.
Evidence concerning the outcome of the IAD’s investigation and its finding
that Ms. Justice’s complaint was not sustained is relevant evidence because it
bolsters Trooper Lombardo’s defense that he did nothing wrong based on his
employer’s review of the incident. The outcome, therefore, could be of consequence
to the jury in determining whether his actions were within the scope of his
employment. A trial court, however, is empowered to exclude relevant evidence
when the probative value is outweighed by confusing the issues or misleading the
jury. Antonini v. W. Beaver Area Sch. Dist., 874 A.2d 679, 687 (Pa. Cmwlth. 2017).
In the present case, the trial court’s focus in preventing Trooper Lombardo from
testifying about the IAD investigation and its conclusion concerned the procedural
process the IAD utilized in reaching its determination that Ms. Justice’s complaint
was not sustained. The trial court had process concerns with the IAD investigation,
particularly about the standard of proof and the right to cross-examine witnesses, the
“openness” of the IAD’s hearing, the right of the complaining party to be present,
and the “findings” of the decision maker. The trial court was also concerned that
providing the IAD’s investigation determination to the jury could divert the jury’s
attention away from weighing the evidence presented in court as to whether Trooper
Lombardo acted within the scope of his employment.
21
The trial court has broad discretion in making evidentiary rulings during trial.
Thomas v. City of Phila., 804 A.2d 97, 107 (Pa. Cmwlth. 2002). Neither
Cpt. Raykovitz nor any individual involved in conducting the IAD investigation was
called to testify, and, consequently, no one could be questioned about the process
leading to the IAD’s investigation and its conclusion that Ms. Justice’s allegations
were not sustained. We, therefore, conclude that the trial court did not err or abuse
its discretion by refusing to allow evidence of the IAD’s investigation and
conclusion to be presented through the testimony of Trooper Lombardo.
Trooper Lombardo next argues that the trial court erred in allowing
Ms. Justice’s attorney to ask him questions about training following the IAD
investigation. Specifically, on cross-examination, Ms. Justice’s attorney asked
Trooper Lombardo if, after the incident, he attended training for how to conduct
traffic stops. (R.R. at 223a.) Trooper Lombardo replied that he did have training,
and it was called “The First Contact.” (Id.) Trooper Lombardo’s attorney objected
after the answer, arguing that training of Trooper Lombardo after the incident was
an area the trial court previously ruled could not be discussed. (Id. at 223a-224a.)
Trooper Lombardo’s attorney argued that Ms. Justice’s attorney’s question to him
opened the door to allow Trooper Lombardo’s attorney to ask questions about it on
redirect examination. (Id. at 224a.) The trial court previously ruled that the parties
could not get into the substance of the discipline or whether Trooper Lombardo was
disciplined, and the trial court stated that the question to Trooper Lombardo did
“seem to insinuate this was a disciplinary measure of some sort.” (Id.)
The following exchange occurred between the attorneys and the trial court:
[Trooper Lombardo’s Attorney]: It was the result of the
investigation that followed afterwards. So is the door open
on this? I need to know so I don’t cross that.
22
The Court: It wasn’t because he was disciplined but that
might have been left questionable to the jury. If [Ms’
Justice’s attorney] does not do it himself, I will allow you
on redirect to say this is a yes or no question. Were you
disciplined by your—by [PSP]? Is the reason that you
went to the officer training course, whatever it is, because
you have been disciplined by the police, by [PSP]? Yes or
No.
[Ms. Justice’s Attorney]: Well—
The Court: You can address it if you want to clean it up.
I think it does insinuate that he was disciplined. That’s
why he went. Everything else has been kept out, so you
can’t do smoke and mirrors.
[Ms. Justice’s Attorney]: I think, quite frankly, the way
that Your Honor laid it out, if anybody has concerns it’s
[Trooper Lombardo] because I guess the catch phrase here
is “discipline.” Because what he’ll say is “I wasn’t
disciplined.”
The Court: That’s why I said it’s yes or no.
[Ms. Justice’s Attorney]: Okay.
[Trooper Lombardo’s Attorney]: It suggests that he
wasn’t found in violation of policy.
The Court: That’s why I said I’ll allow you. So that puts
you back on the same position you were in before he asked
the question, which I think does insinuate that he went as
a form of discipline. So anything else?
[Trooper Lombardo’s Attorney]: I want to be clear about
what his follow-up is going to be allowed to be because
then that will determine if I have any more questions.
The Court: What I just said.
23
[Trooper Lombardo’s Attorney]: I understood. I can ask
him if the training was disciplinary, if he was going to this
course, whatever it is called. Discipline from this incident.
The Court: Yes.
[Trooper Lombardo’s Attorney]: And that’s a yes or no
answer, Trooper. We’re not going to have—you’re going
to let me lead.
The Court: In this case, yes, to control the witness.
Absolutely.
[Trooper Lombardo’s Attorney]: My objection is still
standing to this not being permitted to explore this area
further, but I understand what you’re saying right now.
(Id.) Ms. Justice’s attorney did not ask any more questions about Trooper
Lombardo’s discipline after the incident on cross-examination and
re-cross-examination. (Id. at 224a, 225a.) Moreover, Trooper Lombardo’s
attorney, on redirect, did not ask him any questions related to Trooper Lombardo’s
discipline after the incident. (Id. at 225a, 226a.)
Based on the record before us, we conclude that the trial court did not err or
abuse its discretion in making its evidentiary ruling concerning this objection. The
trial court agreed with Trooper Lombardo’s attorney’s objection that Ms. Justice’s
attorney’s question of any training Trooper Lombardo took after the incident was an
area the trial court previously ruled could not be discussed. To reconcile any
damage, the trial court decided that Trooper Lombardo’s attorney could ask Trooper
Lombardo a “yes” or “no” question on redirect examination: Is the reason that you
went to the First Contact training because you had been disciplined by PSP? We
note, however, that despite complaining about this alleged error on appeal, Trooper
Lombardo’s attorney never asked the question the trial court allowed him to ask on
24
redirect examination. Trooper Lombardo’s attorney chose not to pursue this line of
questioning further.
Trooper Lombardo’s final evidentiary argument is that the trial court erred
when it allowed Ms. Justice’s attorney, over objection, to cross-examine him about
the Philadelphia Police Department Citizen Information Bulletin #2, and, as a result,
Ms. Justice’s attorney “cleverly telegraphed to the jury that a citizen subjected to a
Live-Stop is never obligated to submit to being transported away from the highway,
no matter what the circumstances.” (Appellant’s Brief at 28.) Trooper Lombardo
argues that while “[t]hat may or may not be true for Live-Stops that occur on local,
City of Philadelphia streets, this was not such a situation . . . [and] [to] the contrary,
Ms. Justice was stopped on a dangerous, heavily traveled interstate highway, where
[PSP] policies and procedures, not local policies and procedures have to be
followed.” (Id.) Trooper Lombardo submits that overall, this left “jurors with the
impression that [he] ignored or violated the terms of a City bulletin that, on its face,
did not apply to him and was unfair and grossly prejudicial.” (Id. (emphasis in
original).)
In reviewing the record, the following exchange occurred:
[Ms. Justice’s Attorney]: Are you familiar with
the Live- Stop guideline that says that officers will not
transport citizens against their will following a stop? Are
you familiar with that guideline?
[Trooper Lombardo’s Attorney]: Objection.
The Court: Overruled.
Trooper Lombardo: Is that even a real guideline?
[Ms. Justice’s Attorney]: Your Honor, I ask that this be
marked as P-5.
The Court: Very well. (P-5 was marked for
identification).
The Court Crier: P-5 is being shown to the witness.
25
[Ms. Justice’s Attorney]: Do you see the documents that
I marked as P-5?
[Trooper Lombardo]: Yes.
....
[Ms. Justice’s Attorney]: Does that refresh your
recollection as to whether or not citizens have the right to
refuse a ride from the highway and the fact that the officers
will never transport someone who does not wish?
[Trooper Lombardo’s Attorney]: Objection. Foundation.
The Court: Overruled. I guess he can ask him if he is
familiar with that. After that, I would sustain it.
[Trooper Lombardo]: Actually, I’m not familiar with—
this is a Philadelphia Police Department page. It looks like
some kind of bulletin they put on their board, maybe.
[Ms. Justice’s Attorney]: Why don’t you read what it says
at the top of the page?
[Trooper Lombardo]: Philadelphia Police Department.
[Trooper Lombardo’s Attorney]: Objection. He can read
it to himself.
The Court: Overruled.
[Trooper Lombardo]: It says “Philadelphia Police
Department.”
[Ms. Justice’s Attorney]: It says something else in bold.
[Trooper Lombardo]: Underneath that it says “Citizen
Information bulletin number two. Live-Stop program.”
[Ms. Justice’s Attorney]: All right. Thank you.
(R.R. at 226a-227a.) At the close of Trooper Lombardo’s case, the trial court
addressed the attorneys regarding the document identified as P-5:
[Trooper Lombardo’s Attorney]: Your Honor, at this
point, I’m moving the exhibits into evidence and then rest.
The Court: Okay. So those will be admitted into evidence
and defense rests. And you had marked an additional
exhibit. Did you wish to also move that or no? I think it
was P-5 maybe. I think there had been an objection to the
foundation.
26
[Trooper Lombardo’s Attorney]: There is an objection to
that because he didn’t know.
The Court: Anything else?
[Ms. Justice’s Attorney]: No, Your Honor.
(R.R. at 232a.) There was no further discussion on P-5, and the trial court did not
admit the document into evidence. Ms. Justice’s attorney made no reference to the
document in his closing argument. The only portion of the document that was put
before the jury, therefore, are the first two lines of the document that were read into
evidence by Trooper Lombardo. (Trial Ct. Op. at 11.) The trial court did not err or
abuse its discretion when it allowed Ms. Justice’s attorney to ask Trooper Lombardo
to identify the document marked P-5 and state whether he was familiar with the
Philadelphia Police Department’s Live-Stop policy. The trial court is correct that
“the underlying evidence in question was fleeting at best, and [Trooper Lombardo]
has failed to show how he was prejudiced.” (Id. at 12.)
B. Scope of Employment Jury Instruction
We now move to the issue of whether the trial court committed an error of
law or abused its discretion concerning the scope of employment charge to the jury
when it denied Trooper Lombardo’s motion for a new trial. Trooper Lombardo
argues that the jury instruction “was confusing and not a fair statement of
scope[ ]of[ ]employment law, to the point that including it justifies the granting of a
new trial.” (Appellant’s Brief at 30.) In reviewing Trooper Lombardo’s argument,
we take into consideration that “when a trial court instructs the jury, the objective is
to explain to the jury how it should approach its task and the factors it should
consider in reaching its verdict.” Tincher v. Omega Flex, Inc., 104 A.3d 328, 335
(Pa. 2014) (quoting Cmwlth. v. Chambers, 980 A.2d 35, 49-50 (Pa. 2009)). “Error
in a charge is [a] sufficient ground for a new trial if the charge as a whole is
27
inadequate or not clear or has a tendency to mislead or confuse rather than clarify a
material issue.” Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061,
1069 (Pa. 2006) (citation omitted). Overall, the propriety of jury instructions entails
a question of law. Morrison v. Dep’t of Pub. Welfare, Office of Mental Health
(Woodville State Hosp.), 646 A.2d 565, 571 n.8 (Pa. 1994).
Trooper Lombardo submitted to the trial court a proposed standard instruction
on scope of employment as follows:
In this case the [sic] Ms. Justice alleges that Trooper
Lombardo was outside the scope of his employment in
handcuffing [her]. You must consider all of the evidence
in this regard and decide whether Trooper Lombardo’s
actions were in furtherance of [PSP’s] interest, activities,
affairs or business, or were done solely for the employee’s
personal benefit and had no connection with the duties of
his employment, and were therefore beyond the scope of
employment.
“Given the nature of police work, it is reasonably expected
that officers conducting a traffic stop may use force in
certain circumstances.” Ickes v. Grassmeyer, [30 F. Supp.
3d 375, 399 (W.D. Pa. 2014)] (citing Howard v. Zaney
Bar, . . . 85 A.2d 401, 403 ([Pa.] 1952)).
(Appellant’s Brief at 29 n.32.) “A trial court need not accept counsel’s wording for
an instruction, as long as the instruction given correctly reflects the law. . . .
Instructions will be upheld if they adequately and accurately reflect the law and are
sufficient to guide the jury properly in its deliberations.” Cmwlth. v. Fletcher,
986 A.2d 759, 802 (Pa. 2009) (quoting Cmwlth. v. Rainey, 928 A.2d 215, 242-43
(Pa. 2007)).
The trial court instructed the jury on scope of employment as follows:
If Trooper Lombardo’s actions on
November 27, 2013, were within the scope of his
employment, then [Ms. Justice] will not recover. It is for
you to decide whether Trooper Lombardo at the time of
28
the occurrence was acting within the scope of his
employment. An employee is acting within the scope of
his or her employment where such act is in furtherance of
the employer’s interests, activities, affairs, or business, or
is designed to accomplish the purpose of the employment.
It is not necessary that the act or omission had not been
specifically authorized as long as it could reasonably be
found to have been contemplated as part of the
employment.
An employee is not acting within the scope of his or her
employment when he or she departs or substantially
deviates from the business or services of his employer
pursuing some personal activity on his own account and
not reasonably embraced within his employment or not
directed towards advancing his employer’s interest.
The conduct of an employee is considered to be within the
scope of employment if, one, it is of a kind and nature that
the employee is employed to perform. Two, it occurred
substantially within the authorized time and space limits.
Three, it is actuated, at least in part, by a purpose to serve
the employer. And four, if force is intentionally used by
the employee against another, the use of force for the
particular circumstances is not unexpected by the
employer.
(R.R. at 250a-251a.) The trial court then added the following sentence:
An assault committed by an employee upon another
for personal reasons or in an outrageous manner is not
actuated by intent to perform the business of an employer[]
and[,] as such, is not within the scope of employment.
(Id. at 251a.)
Trooper Lombardo claims that the last sentence of the trial court’s instructions
was not clear, misled the jury, and confused the jury on a material fact concerning
the law as to scope of employment. He submits that, “[w]ith that sentence, the court
implicitly directed the jury to decide, first, whether an ‘assault’ occurred and, if so,
to then find that the defendant did not act within the scope of employment.”
29
(Appellant’s Brief at 32.) Trooper Lombardo further argues that, “[i]n essence, the
jury was told that a person who commits an assault [(outrageously)] cannot have
acted within the scope of employment, by definition,” and, “[a]s a matter of agency
law, that is simply wrong.” (Id.) To support his claim that the trial court committed
an error of law, Trooper Lombardo directs our attention to three cases where
employees acted disobediently, abused their authority, behaved tortuously, or
behaved criminally yet remained within the scope of their employment.
In the first case, Department of Transportation v. Cox, 476 A.2d 1012 (Pa.
Cmwlth. 1984) (Cox), a craftsman named Covell occasionally contracted with
appellant Cox to do body work at Cox’s service station, and they would split the
profits on Covell’s work. Cox’s service station was also an official inspection station
regulated by the Department of Transportation (DOT). As part of their business
arrangement, Cox permitted Covell to complete Cox’s official inspection sheets
even though Covell was not authorized to perform inspections. Ultimately, Covell
stole an inspection sticker from Cox’s files, placed it on his own automobile, and
then altered the official inspection sheet to indicate that one of Cox’s other customers
was issued the stolen inspection sticker. Once the fraud was discovered, DOT
suspended Cox’s official inspection station certificate for one year. Cox appealed,
and the trial court concluded that DOT’s suspension order was in error because
Covell was not an employee of Cox, and, even if he was, Covell’s actions were not
within the scope of his employment.
DOT appealed the decision to this Court, arguing that its decision was not
based on an employer-employee relationship but instead on the principles of agency
law. We disagreed with the trial court and concluded that “[w]hile Covell’s acts
regarding the sticker were outside of the scope of his authority to make entries on
30
the inspection sheet, his fraudulent entry thereon was not.” Cox, 476 A.2d at 1014.
Further, “‘[a] master is normally penalized for the violation of statutory provisions
by a servant acting within the scope of his authority even though the agent acted
disobediently and the master had no reason to anticipate such misconduct.’” Id.
(quoting Restatement (Second) of Agency § 217D (Am. Law Inst. 1958)). We
concluded that disobedient employees can act within their scope of employment
under agency law.
In the second case, Potter Title & Trust Co. v. Knox, 113 A.2d 549 (Pa. 1955),
a taxi cab driver, while employed and working for defendant, shot and killed a man.
The administrator of the dead man’s estate brought suit against defendant, and the
trial court entered a non-suit. The administrator appealed. The Supreme Court, in
determining that the taxi cab driver was not acting within the scope of his
employment when he committed his criminal acts, wrote: “It is a general rule of law
that when an act is done in the course of one’s employment the employer will not
ordinarily be excused from liability although the employee abused his authority and
thereby inflicted injury upon another.” Potter Title & Tr. Co., 113 A.2d at 551. The
Supreme Court, however, recognized that there is an important exception to the
general principle: “Although an act is a means of accomplishing an authorized
result, it may be done in so outrageous or whimsical a manner that it is not within
the scope of employment.” Id. (quoting Restatement (First) of Agency § 229,
comment b (Am. Law Inst. 1933)). Accordingly, an act that is outrageous or
whimsical may not be within the scope of employment.
In the third case, First National Bank of Altoona v. Turchetta, 181 A.2d 285
(Pa. 1962), two brothers (defendants) created a business partnership for the purpose
of buying and selling used motor vehicles. The brothers financed partnership sales
31
of automobiles with banks (including the plaintiff), and it was the custom of the
partnership “to secure from the customer in favor of the bank a promissory judgment
note secured by a chattel mortgage agreement, authorizing the financing institution
to pay a specified amount out of the proceeds to the [brothers].” First Nat’l Bank,
181 A.2d at 286. On four different occasions, one of the brothers provided forged
signatures of existing persons to the bank in exchange for checks payable to the
brothers. When the bank discovered the forgeries, it demanded payment from the
partnership to no avail. Default judgment was taken against one brother, while the
other brother obtained a jury verdict in his favor. The bank filed for JNOV and
sought a new trial, which the trial court denied.
The Supreme Court, in reviewing whether the brother who provided the
forged checks made the other brother in the partnership liable for the loss, wrote:
A principal who puts a servant or other agency in a
position which enable[s] the agent, while apparently
acting within his authority, to commit a fraud upon third
persons is subject to liability to such third persons for the
fraud.
....
The principal is subject to liability . . . although he is
entirely innocent, has received no benefit from the
transaction, and, as stated in Section 262 [of the
Restatement (First) of Agency], although the agent acted
solely for his own purposes. Liability is based upon the
fact that the agent’s position facilitates the consummation
of the fraud, in that from the point of view of the third
person the transaction seems regular on its face and the
agent appears to be acting in the ordinary course of the
business confided to him.
Id. at 288 (quoting Restatement (First) of Agency § 261 (Am. Law Inst. 1933)). The
Supreme Court concluded that the jury verdict for the brother who did not commit
32
the fraud was against the weight of the evidence, overruled the trial court’s denial of
JNOV, and remanded the case for a new trial.
While it is true that there are situations where employees may be within the
scope of employment when they are disobedient, abuse their authority, or behave
tortuously or criminally, the three cases submitted by Trooper Lombardo are not
dispositive. Rather, when viewed with the remainder of the trial court’s jury
instructions, the trial court provided the jury with the legal framework to utilize in
making factual determinations about Trooper Lombardo’s actions and whether those
actions fell within the scope of his employment. We discern no mistake in the trial
court’s jury instruction on scope of employment, which, taken as a whole, is an
adequate and clear explanation of the relevant law.
Trooper Lombardo next takes issue with the word “assault” in the scope of
employment jury instruction and argues: (1) it does not take much for one person to
“assault” another, and (2) under the trial court’s own charge, such as it was, an
assault is merely an intentional act that puts someone in fear of “harmful or
offensive” physical contact. (Appellant’s Brief at 32.) In reviewing the record, we
note that the trial court, immediately following the sentence Trooper Lombardo
argued was improper, provided the following jury instruction:
An assault is an act done with the intent to put
another in reasonable and immediate fear of a harmful or
offensive contact with [his or her] body and that does, in
fact, cause such fear. To commit an assault it is not
necessary that the person actually intend to inflict a
harmful or offensive contact with the body of another if it
did not put the person intended to cause only a fear of such
contact [sic].
In order for Trooper Lombardo to be held
responsible for the commission of an assault against Ms.
Justice, you must find, first, that Trooper Lombardo
intended to put Ms. Justice in reasonable and immediate
33
fear of a harmful or offensive contact with her body; and,
second, that Ms. Justice, as a result of Trooper
Lombardo’s act, was put in a reasonable and immediate
fear of such contact.
(R.R. at 251a.) The Pennsylvania Suggested Standard Civil Jury Instructions, 17.10
defines “assault” as follows:
An assault is an act done with the intent to put
another in reasonable and immediate fear of a harmful or
offensive contact with his or her body and that does, in
fact, cause such fear. To commit an assault, it is not
necessary that the person actually intend to inflict a
harmful or offensive contact with the body of another. It
is enough that the person intend to cause only a fear of
such contact. In order for the defendant to be held
responsible for the commission of an assault against the
plaintiff, you must find: First, that the defendant intended
to put the plaintiff in reasonable and immediate fear of a
harmful or offensive contact with [his or her] body; and
Second, that the plaintiff, as a result of the defendant’s act,
was put in reasonable and immediate fear of such contact.
The trial court’s instruction is nearly verbatim with the suggested standard
instruction and succinctly summarizes the law. We do not agree with Trooper
Lombardo’s argument that the trial court’s “elevat[ion of] the relative importance of
[Ms. Justice’s] assault claim in the manner it did practically commanded the jury to
find that Trooper Lombardo did not act within the scope of employment.”
(Appellant’s Brief at 33.) It was a factor that the jury needed to consider in
determining whether Trooper Lombardo was acting within his scope of employment.
The trial court’s statement on assault, therefore, is not inadequate, unclear,
misleading, or confusing.
Trooper Lombardo finally contends that the trial court’s use of the adjective
“outrageous” when describing assaults that are outside the scope of employment did
not mitigate the problems that infected this portion of the charge and, if anything,
34
employing such loaded, but undefined, terminology exacerbated the situation.
(Appellant’s Brief at 33.) The record indicates that the trial court relied on Costa v.
Roxborough Memorial Hospital, 708 A.2d 490 (Pa. Super.), appeal denied,
727 A.2d 1120 (Pa. 1998), in adding the word “outrageous” to the jury instructions
when describing assaults.9 In Costa, the plaintiff, a security company’s employee,
was assaulted by the defendant’s employee, a laundry worker at the hospital, after
the laundry worker refused to take a drug test. The trial court granted summary
judgment to the defendant, and the plaintiff appealed, contending that the hospital
was vicariously liable for the abusive actions of its employee.
The Superior Court, after reviewing the Restatement (Second) of Agency,
§ 228, noted “[t]he determination of whether a person was acting within the scope
of his employment is typically a question for the jury.” Costa, 708 A.2d at 493.
“Where, however, the employee commits an act encompassing the use of force
which is excessive and so dangerous as to be totally without responsibility or reason,
the employer is not responsible as a matter of law.” Id. (quoting Fitzgerald v.
McCutcheon, 410 A.2d 1270, 1272 (Pa. Super. 1979)). “Moreover, our courts have
held that an assault committed by an employee upon another for personal reasons or
in an outrageous manner is not actuated by an intent to perform the business of the
employer, and as such, is not within the scope of employment.” Id.
The trial court’s use of the word “outrageous” in describing assaults that are
outside the scope of employment is in line with not only Costa but also the Supreme
Court’s decision in Potter Title & Trust Co. We conclude, therefore, that the trial
court’s instructions on assault with the adjective “outrageous” before the word
9
While we do look to Pennsylvania Superior Court decisions for guidance, those decisions
are not binding on this Court. Fisler v. State Sys. of Higher Educ., Ca. Univ. of Pa., 78 A.3d 30,
41 n.12 (Pa. Cmwlth. 2013).
35
“manner” does not constitute an inadequate, unclear, misleading, or confusing jury
instruction and correctly reflected the applicable law on this issue.
C. Damages
We now move to the issue of whether the trial court committed an error of
law or abused its discretion concerning the amount of damages the jury awarded to
Ms. Justice. Trooper Lombardo questions the jury’s $160,000 damages award,
arguing it was “unsupported and so blatantly excessive that it must have been based
on prejudice or passion, as opposed to relevant admissible evidence.” (Appellant’s
Brief at 34.) Trooper Lombardo submits that the trial record developed by
Ms. Justice is sparse to support the amount of her damages and that the trial court’s
“ensuing instructions to the jury, regarding money damages, were brief and almost
entirely generic, spanning less than three transcript pages. (Id. at 35, 36.) The trial
court did not find the jury’s overall award excessive or exorbitant in denying Trooper
Lombardo’s motion for a new jury trial. (Trial Ct. Op. at 15.)
We begin our review of determining whether the trial court erred in denying
Trooper Lombardo a new trial by noting that the “grant or refusal of a new trial
because of an excessive or inadequate verdict is a matter for the sound discretion of
the trial court and will be sustained by an appellate court in the absence of a clear
abuse of discretion or error of law which controlled the verdict or the outcome of the
case.” Stokan v. Turnbull, 389 A.2d 90, 92 (Pa. 1978). “The mere fact that a verdict
is large does not necessarily mean it is excessive.” Chin v. New Flyer of Am., Inc.,
169 A.3d 689, 703 (Pa. Cmwlth. 2017). “The correct question on review is whether
the award of damages ‘falls within the uncertain limits of fair and reasonable
compensation or whether the verdict so shocks the sense of justice as to suggest that
the jury was influenced by partiality, prejudice, mistake or corruption.’” Sprague v.
36
Walter, 656 A.2d 890, 924 (Pa. Super. 1995) (quoting Haines v. Raven Arms,
640 A.2d 367, 369 (Pa. 1994)), appeal denied, 670 A.2d 142 (Pa. 1996).
Ms. Justice’s attorney, during his closing argument, openly suggested that the
jury award $160,000 as a lump sum. (R.R. at 248a.) Specifically, he stated:
And then lastly, you’re going to be asked to
calculate the damages. As I told you, you’ll have her
economic damages. You’ll have her medical expenses.
That will come up to around $20,000. You apply three to
that, that gets you to $60,000. You go back and you look
at each one of these items that I’ve pointed out to you:
Assault, battery, invasion of privacy, intentional infliction
of emotional distress and false arrest, and my suggestion
to you, it’s your decision, you charge him $20,000 for each
one of those items. That gets you to $160,000 as a lump
sum . . . .
(Id.) The jury awarded Ms. Justice, as evidenced on the verdict sheet, exactly what
the attorney suggested: $160,000. (Id. at 294a.)
As a preliminary matter, the trial court recognized after the jury trial that it
was clearly improper for Ms. Justice’s attorney to advocate for a certain sum but also
noted that “defense counsel failed to object, thereby waiving this issue.” (Trial Ct.
Op. at 16.) Trooper Lombardo’s attorney concedes that he did not object to
Ms. Justice’s attorney’s closing argument when Ms. Justice’s attorney was
advocating for a certain sum of damages. (Appellant’s Brief at 38.) Accordingly,
we consider the challenge to Ms. Justice’s attorney advocating for a certain sum of
damages in his closing argument waived for purposes of this appeal.
In reviewing whether the jury’s award of damages was excessive or exorbitant
in this case, we consider the following factors:
(1) [T]he severity of the injury; (2) whether the
injury is demonstrated by objective physical evidence or
subjective evidence; (3) the permanency of the injury;
(4) the plaintiff’s ability to continue employment; (5) the
37
disparity between the amount of out-of-pocket expenses
and the verdict amount; and (6) the damages requested by
the plaintiff in the complaint.
Chin, 169 A.3d at 703. “Each case is unique and dependent on its own special
circumstances[,] and a court should apply only those factors which it finds to be
relevant in determining whether or not the verdict is excessive.” Whitaker v.
Frankford Hosp. of City of Phila., 984 A.2d 512, 523 (Pa. Super. 2009).
Regarding the first three “injury” factors, Trooper Lombardo argues that
Ms. Justice did not seek medical treatment until a few days after the incident, that
she was not hospitalized, and that by her own account “any physical or psychological
difficulties she attributes to the incident were not permanent.” (Appellant’s Brief
at 40, 41.) Trooper Lombardo further points out that “her complaints seem to have
been mostly if not entirely subjective, and all appear to have been resolved long
before trial.” (Id. at 41.) While we agree with Trooper Lombardo’s statements, they
are not conclusive of what we may consider.
Ms. Justice testified that her physical injuries consisted of a twisted and very
sore arm, wrists that were twisted in a very awkward position, and a back injury due
to being pushed and forced into weird positions. She sought medical treatment and
received physical therapy for four to six months. She also treated with pain
medications for several months. Ms. Justice introduced and the trial court admitted
into evidence a bill for medical treatment in the amount of $8,933.
In addition to the medical treatment discussed above, Ms. Justice felt
“embarrassed, humiliated, disrespected, victimized, and afraid” when she was
handcuffed in front of her stepson. She obtained mental health services a few days
after the incident because she was anxious, depressed, and not sleeping well.
38
Ms. Justice introduced and the trial court admitted into evidence an outstanding bill
for mental health services in the amount of $1,750.
Next, we consider that Ms. Justice’s ability to continue employment was
interrupted due to her physical therapy and pain in her wrist and arm. Trooper
Lombardo argues that she only missed a few days of work immediately following
the incident, after which, for a time, it was difficult for her to see as many clients as
she would normally see, “[b]ut aside from that, she evidentially returned to work as
usual.” (Appellant’s Brief at 41.) Trooper Lombardo argues that there “is no hint
of any ongoing employment-related concerns, or losses, after Ms. Justice regained
her equilibrium, physically and psychologically.” (Id.) Here too, Trooper
Lombardo’s arguments are factually true, but are not the only determinative factors
in our analysis of the jury verdict. Ms. Justice did introduce evidence indicating that
she lost $9,095 in income due to missed hairstyling appointments, and this supports
her argument and the jury’s decision to award her damages.
Finally, in considering the remaining factors, we recognize that Ms. Justice’s
out-of-pocket expenses were $19,778. The jury awarded her $160,000, although she
had sought $100,000 in damages in her amended complaint. Trooper Lombardo
argues that the disparity between Ms. Justice’s out-of-pocket expenses and the
amount of the verdict is “striking” as the “verdict was more than eight times the
demonstrated economic loss.” (Id.) Trooper Lombardo submits that the amount
demanded in Ms. Justice’s original and amended complaints for compensatory and
punitive damages was in an amount in excess of $25,000. (Id. at 41, 42.) Trooper
Lombardo notes:
While this case was initially filed as a standard civil
action with a jury demand, it was transferred by agreement
from “Major Jury” to Arbitration about three months later.
That means the total amount in controversy was $50,000
39
or less, see Phila. Civ.R. 1301, and at the ensuing
arbitration, Ms. Justice was only awarded $15,000. In
other words, this was not and was never expected to be a
“big” case . . . [noting] [t]here is no denying Trooper
Lombardo’s appeal from the modest arbitration award,
and request for a trial de novo, is what brought the parties
to where they are now. In light of the foregoing factors,
and the record as a whole, no evidentiary basis for the
inflated $160,000 verdict in this case exists.
(Id. (citations omitted).) Trooper Lombardo submits that the “trial court’s failure
even to explain why it did not ‘find the jury’s overall award . . . excessive or
exorbitant’ ([Trial Ct. Op.] at 15) was nothing short of an abdication of its
responsibility to give due consideration to Trooper Lombardo’s post-trial challenge
to the inordinately large verdict against him,” which constitutes an abuse of
discretion warranting a reversal and a remand for further proceedings. (Id. at 42, 43.)
We disagree.
Viewing the evidence in the light most favorable to Ms. Justice as the verdict
winner, we agree with the trial court that the jury’s damage award was supported by
the evidence. Moreover, it was neither so excessive that it appears to have been
based on prejudice, passion, or another improper factor nor was it exorbitant. The
jury found that Trooper Lombardo committed the torts of assault, battery, invasion
of privacy, and intentional infliction of emotional distress against Ms. Justice.
(R.R. at 293a.) In arriving at the damages, the jury was permitted to consider the
impact of the incident on Ms. Justice’s physical and mental well-being, along with
economic damages she sustained in the nature of medical bills and lost wages.
(Id. at 252a.) Based on the facts of record, we agree with the trial court and conclude
that the jury’s award of $160,000 in damages to Ms. Justice was not excessive.
40
IV. CONCLUSION
Accordingly, we affirm the trial court’s order, denying Trooper Lombardo’s
motion for a new trial.
P. KEVIN BROBSON, Judge
41
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shiretta Justice :
:
v. : No. 1439 C.D. 2016
:
Pennsylvania State Police :
Trooper Lombardo, :
Appellant :
ORDER
AND NOW, this 11th day of August, 2020, the order of the Court of Common
Pleas of Philadelphia County, denying Pennsylvania State Police
Trooper Lombardo’s motion for a new trial, is AFFIRMED.
P. KEVIN BROBSON, Judge