acting under color of law . . .
How later courts described this case
- acting under color of law . . .
- holding failure to raise issue during trial court’s hearing constituted waiver
- The allegation that a probation officer acted under color of state law was not determinative with respect to whether the probation officer was acting within the scope of her employment.
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shane McGuire on behalf of :
Colby Neidig, :
Appellant :
:
v. :
: No. 141 C.D. 2020
City of Pittsburgh : Argued: February 9, 2021
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY
JUDGE COVEY FILED: March 10, 2021
Shane McGuire (McGuire), on behalf of Colby Neidig (Neidig),
appeals from the Allegheny County Common Pleas Court’s (trial court) January 3,
2020 order denying McGuire’s Motion for Post-Trial Relief. There are six issues
before this Court:1 (1) whether the City of Pittsburgh (City) waived its argument that
McGuire lacks standing; (2) if the City did not waive the standing issue, whether
McGuire has standing; (3) whether a federal judicial determination that Neidig
injured McGuire while acting under color of state law collaterally estopped the trial
court from concluding that Neidig was not acting within the scope of his duties as a
City police officer, which precluded indemnification; (4) whether the trial court
erred when it precluded witness testimony, intervened in witness examination, and
permitted the City to publish photographs of McGuire’s injuries to the jury; (5)
whether the trial court improperly instructed the jury regarding the law governing
course and scope of employment; and (6) whether the trial court erred by denying
indemnification where there had been no federal judicial determination that Neidig
1
This Court has reordered and summarized McGuire’s issues for clarity.
committed willful misconduct, and permitting the City to present evidence and
argument that Neidig engaged in willful misconduct. After review, this Court
affirms.
On November 2, 2012, 16-year-old McGuire and a group of teenagers
vandalized residences in McGuire’s neighborhood. McGuire and his friends went
to Neidig’s home, smashed pumpkins and stacked bricks in an area close to the front
door. Neidig, his wife and child arrived home while McGuire and his friends were
still at the property. While the Neidigs took groceries into their house, McGuire and
his friends observed the Neidigs’ reaction to the vandalism. Thereafter, McGuire
banged on the Neidigs’ front door and then attempted to flee, but stumbled and fell
over the stacked bricks. Upon hearing the banging, Neidig’s wife screamed and
Neidig observed McGuire trying to flee. Neidig gave chase and ultimately caught
McGuire approximately one-half mile away, at which time Neidig knocked McGuire
down and punched him in the face. At that time, Neidig was not wearing his police
uniform and he did not identify himself to McGuire as a police officer. Neidig called
911 and restrained McGuire until City police officer David Blatt (Officer Blatt)
arrived.
On November 7, 2014, McGuire filed an action in federal district court2
(Federal Court Action) against Neidig in his individual capacity as a police officer,
Officer Blatt, and the City, asserting counts of, inter alia, use of excessive force in
violation of Section 1983 of the United States Code, 42 U.S.C. § 1983 (Section
1983), and state law assault and battery claims. On November 3, 2016, the federal
district court granted summary judgment in Officer Blatt’s and the City’s favor, and
dismissed them from the case. On March 2, 2017, after a jury trial, judgment was
entered in McGuire’s favor and against Neidig, finding a violation of McGuire’s
2
McGuire v. Neidig (W.D. Pa. No. 2:14-cv-01531).
2
constitutional rights under Section 1983 and awarding McGuire damages for assault
and battery. The jury specifically concluded that Neidig acted under color of state
law when he injured McGuire. The jury awarded $75,000.00 in damages for
economic loss, physical and/or emotional pain, suffering, inconvenience, mental
anguish or loss of enjoyment of life. The jury also awarded $50,093.21 in
compensatory damages. The awards were molded into one award of $75,000.00 on
the civil rights violation. The federal district court awarded McGuire attorney’s fees
in the amount of $160,575.00, and molded the total award to $235,575.00.
On June 12, 2017, Neidig assigned to McGuire “his entire right to bring
legal action against the [City] for indemnity under the Political Subdivision Tort
Claims Act, [42 Pa.C.S. §§ 8541-8542 (Tort Claims Act),] or under any other theory,
for the [City’s] failure to indemnify [Neidig] from the judgment entered against him
in [the Federal Court Action.]” Reproduced Record (R.R.) at 11a.
On July 7, 2017, McGuire filed the instant action for declaratory
judgment in the trial court, alleging that the City failed to comply with its statutory
obligations under the Tort Claims Act to indemnify Neidig following the federal
district court’s award. On November 21, 2017, McGuire filed a summary judgment
motion, arguing that the federal jury specifically and affirmatively answered that
Neidig was acting under color of state law at the time he assaulted McGuire, and,
thus, the City was obligated to pay the federal jury award. On March 8, 2018, the
trial court denied McGuire’s motion. The trial court held a jury trial from August
12, 2019 to August 15, 2019, at the conclusion of which the jury found in the City’s
favor and against McGuire, concluding that Neidig had not acted within the scope
of his duties when he struck McGuire. The jury did not reach a decision on the
City’s alternative argument that, had Neidig been acting in the scope of his
employment, his conduct would have amounted to willful misconduct, and the City
would have no duty to indemnify him. McGuire and the City filed motions for post-
3
trial relief. On January 3, 2020, the trial court issued its Memorandum Opinion and
Order denying the post-trial motions (Trial Court Opinion).
McGuire appealed to this Court on February 3, 2020.3 On May 21,
2020, the trial court issued its Amended Statement in Lieu of Opinion, wherein it
adopted its January 3, 2020 Trial Court Opinion. On August 28, 2020, McGuire
filed his brief with this Court. On November 20, 2020, the City filed its brief with
this Court, arguing, inter alia, that McGuire lacks standing to pursue indemnification
because he is not a municipal employee with rights under the Tort Claims Act. On
December 16, 2020, McGuire filed an Application for Motion to Strike Portions of
Appellee’s Brief (Application to Strike), alleging therein that the City had waived
its argument that McGuire lacked standing. On December 22, 2020, McGuire filed
his reply brief. On December 30, 2020, the City filed its Answer to the Application
to Strike. On January 4, 2021, this Court directed the Application to Strike to be
decided with the merits of McGuire’s appeal.
I. Application to Strike
This Court first addresses McGuire’s Application to Strike, wherein
McGuire contends that the City waived its argument that he lacks standing, and,
thus, that portion of the City’s brief should be stricken.
McGuire contends:
Prior to asserting the ‘lack of standing’ argument in [the
City’s] Brief, [the City] did not assert ‘lack of standing’ as
an affirmative defense to [McGuire’s] claims; such
defense was not raised in [the City’s] answer and new
matter to [McGuire’s] complaint for declaratory
3
“This Court’s standard of review of a trial court’s denial of a motion for post-trial relief
is limited to a determination of whether the trial court abused its discretion or committed an error
of law.” Irey v. Dep’t of Transp., 72 A.3d 762, 770 n.8 (Pa. Cmwlth. 2013).
4
judgment; (R.[R. at] 0087a-[]0095a); lack of standing was
not raised by [the City] in response to [McGuire’s] motion
for summary judgment ([Pennsylvania Rule of Appellate
Procedure (Rule)] 123 App[.] 1-34); the City . . . did not
assert lack of standing in its Pretrial Statement (R.[R. at]
0110a-[]0120a), or [in] its Amended Pretrial Statement
([]R.[R. at] 0129a-[]0139a).
Application to Strike at 2.
“A defendant timely objects to a plaintiff’s lack of capacity to sue if the
defendant raises this issue in preliminary objections or in its answer to the
complaint.” Drake Mfg. Co., Inc. v. Polyflow, Inc., 109 A.3d 250, 257 (Pa. Super.
2015) (emphasis omitted). The City did not file preliminary objections or raise the
issue of McGuire’s standing in new matter in its answer to McGuire’s complaint.
However, notwithstanding McGuire’s assertion to the contrary, the record reflects
that the City did raise the issue of McGuire’s standing before the trial court. On
August 12, 2019, the first day of trial, the City filed with the trial court a Trial
Memorandum on Invalid, Ineffective Assignment of Indemnification Rights
Pursuant to the Political Subdivision Tort Claims Act (Trial Memorandum). See
Original Record (O.R.), Item No. 48.
In the Trial Memorandum, the City asserted:
By attempting to assign his right to have his conduct
reviewed in accordance with [the Tort Claims Act’s]
standards, Neidig has removed himself from this dispute.
Neidig no longer has skin in this game. Instead, he and
McGuire have agreed for McGuire to face the jury with
the request that tax[]payer dollars pay for McGuire’s
injuries. While the Court consistently upholds public
employee rights to indemnification, . . . nothing in the
express language of the [Tort Claims Act] supports
reading into it a right for [] Neidig to assign his personal
indemnification rights bestowed upon him by the
Legislature. . . .
....
5
In order to have standing to pursue this
indemnification claim against the City, McGuire, as a
non-employee, would need to be able to receive a valid,
effective assignment. However, even if the possibility of
assignment of [Tort Claims Act] indemnification rights
could be entertained, it would offend the public policy of
this Commonwealth. Entertaining a non-employee’s
pursuit of indemnification would be prejudicial to
tax[]payer interests.
Trial Memorandum at 4-5, O.R. Item No. 48 (emphasis added; citation and footnotes
omitted).
Further, on August 14, 2019, during the trial, the City moved for
compulsory nonsuit (Nonsuit Motion), arguing:
Your Honor, there are essentially two issues that the City
presents in its [N]onsuit [Motion]. The first is regarding
an assignment and the lack of standing on behalf of
[McGuire] to bring this action. Standing is a
preliminary matter that must be proven in order to have a
right to present [McGuire’s] case[-]in[-]chief here today.
[McGuire has] failed to present evidence of an assignment
of the right of indemnification from [Neidig] to [McGuire]
which would substantiate [McGuire’s] right to bring this
action for indemnity on [] Neidig’s behalf. Therefore, []
McGuire lacks standing to bring this action . . . ab initio.
To the extent that there is an assignment, Your Honor, the
City contends that that assignment is void ab initio. The
right to indemnification under the [Tort Claims Act] is a
right that is granted solely to employees of local agencies.
....
Because [McGuire] is not a [City] employee, he cannot be
assigned the right of [Neidig] to bring this action.
R.R. at 1103a-1104a (emphasis added).4,5
4
The trial court denied the Nonsuit Motion. See R.R. at 1110a.
5
The City raised the issue again in its post-trial motion.
6
Importantly, in response, McGuire’s counsel did not argue waiver, but
instead asserted: “Regarding evidence of assignment, there was testimony -- I
believe it was elicited from the [City] -- that the claim was, in fact, [as]signed; the
claim for indemnification was, in fact, [as]signed from [Neidig] to [McGuire].” Id.
at 1109a.
The law is well-established that
[w]hile a party has a duty to preserve an
issue at every stage of a proceeding, he
or she also must comply with the
general rule to raise an issue at the
earliest opportunity. Renna v. Dep’t of
Transp., Bureau of Driver Licensing,
762 A.2d 785, 788 (Pa. Cmwlth. 2000)
(holding failure to raise issue during
trial court’s hearing constituted waiver).
Campbell v. Dep’t of Transp., Bureau of
Driver Licensing, 86 A.3d 344, 349 (Pa.
Cmwlth. 2014) (emphasis added)[.]
City of Phila. v. Rivera, 171 A.3d 1, 6 (Pa. Cmwlth. 2017)
(emphasis omitted). Further, ‘[Pennsylvania Rule of
Appellate Procedure] 302(a) provides: ‘Issues not raised
in the lower court are waived and cannot be raised for the
first time on appeal.’’ In re RHA Pa. Nursing Homes
Health & Rehab. Residence, 747 A.2d 1257, 1260 (Pa.
Cmwlth. 2000).
In Re Petition to Set Aside Upset Tax Sale, 218 A.3d 995, 998 (Pa. Cmwlth. 2019).
Because McGuire did not argue to the trial court that the City’s failure to raise the
standing issue in preliminary objections or new matter constituted waiver, McGuire
waived that issue and may not now argue it before this Court.
McGuire also asserts that “[the City’s] ‘lack of standing’ argument does
not appear in either [McGuire’s] statement of issues and/or the [City’s]
counterstatement of those issues.” Application to Strike at 1.
7
Rule 2112 provides, in relevant part:
The brief of the appellee, except as otherwise prescribed
by these rules, need contain only a summary of
argument and the complete argument for appellee, and
may also include counter-statements of any of the matters
required in the appellant’s brief as stated in [Rule]
2111(a). Unless the appellee does so, or the brief of the
appellee otherwise challenges the matters set forth in the
appellant’s brief, it will be assumed the appellee is
satisfied with them, or with such parts of them as remain
unchallenged.
Pa.R.A.P. 2112 (emphasis added). Accordingly, unlike an appellant, as the
prevailing party, the City was not required to include in its brief a counterstatement
of issues, and was permitted to address the issue in the body of its brief.
Further, the City did not waive the issue by failing to file a cross-appeal.
The Pennsylvania Supreme Court has explained:
[Rule] 501 provides, ‘any party who is aggrieved by an
appealable order . . . may appeal therefrom.’ Pa.R.A.P.
501 (emphasis added). The Note to Rule 511 further
states, ‘An appellee should not be required to file a cross[-
]appeal because the [c]ourt below ruled against it on an
issue, as long as the judgment granted appellee the relief it
sought.’ [Rule] 511 note (citation omitted).
‘Pennsylvania case law also recognizes that a party
adversely affected by earlier rulings in a case is not
required to file a protective cross-appeal if that same party
ultimately wins a judgment in its favor; the winner is not
an ‘aggrieved party.’’ Basile v. H & R Block, Inc., 973
A.2d 417, 421 (Pa. 2009) (citation omitted) (emphasis in
original). Moreover, several Justices of this Court have
gone a step further and suggested such appeals should not
be permitted. See id.[] at 424 (Saylor, J., concurring)
(footnote omitted) (asserting ‘[protective] cross-appeals
generally should not be permitted’ given that ‘the
collective burden of screening and addressing such cross-
appeals may outweigh the benefits from the opportunity
for an appellate court to advance the resolution of the
litigation in individual cases’); id.[] at 426-27 (Baer, J.,
concurring) (writing ‘separately to second Justice Saylor’s
8
inclinations to deem protective cross-appeals
impermissible’ because ‘refusing to hear [them] will
streamline cases on appeal and prevent prevailing parties
from deluging the courts with unnecessary protective
cross-appeals[,]’ and noting such practice would
‘eliminate[] the question of whether a non-aggrieved party
filing a protective cross-appeal must raise every potential
appealable issue for fear of waiver’).
Lebanon Valley Farmers Bank v. Commonwealth, 83 A.3d 107, 112 (Pa. 2013).
Here, as the prevailing party, the City was not required to file a cross-appeal. For
these reasons, the Application to Strike is denied.
II. Standing
Having concluded that the City did not waive its argument challenging
McGuire’s standing, this Court now addresses the standing issue on its merits.
Initially,
[i]n Pennsylvania, the doctrine of standing . . . is a
prudential, judicially created principle designed to
winnow out litigants who [sic] have no direct interest in a
judicial matter. For standing to exist, the underlying
controversy must be real and concrete, such that the party
initiating the legal action has, in fact, been ‘aggrieved.’
Pittsburgh Palisades Park, LLC v. Commonwealth, . . .
888 A.2d 655, 659 ([Pa.] 2005). As this Court explained
in William Penn Parking Garage[, Inc. v. City of
Pittsburgh, 346 A.2d 269 (Pa. 1975)], ‘the core concept
[of standing] is that a person who is not adversely affected
in any way by the matter he seeks to challenge is not
‘aggrieved’ thereby and has no standing to obtain a
judicial resolution to his challenge.’ [William Penn,] 346
A.2d at 280-81. A party is aggrieved for purposes of
establishing standing when the party has a ‘substantial,
direct and immediate interest’ in the outcome of litigation.
Johnson[ v. Am. Standard, 8 A.3d 318,] 329 [(Pa. 2010)]
(quoting Fumo v. City of Phila[.], . . . 972 A.2d 487, 496
([Pa.] 2009)). A party’s interest is substantial when it
surpasses the interest of all citizens in procuring obedience
to the law; it is direct when the asserted violation shares a
9
causal connection with the alleged harm; finally, a party’s
interest is immediate when the causal connection with the
alleged harm is neither remote nor speculative. Id.
Thus, while the purpose of the Declaratory Judgment[s]
Act, 42 Pa.C.S. §[§] 7531[-7541], is to ‘settle and to afford
relief from uncertainty and insecurity with respect to
rights, status, and other legal relations, and is to be
liberally construed and administered,’ the availability of
declaratory relief is limited by certain justiciability
concerns. 42 Pa.C.S. § 7541(a). In order to sustain an
action under the Declaratory Judgment[s] Act, a plaintiff
must allege an interest which is direct, substantial and
immediate, and must demonstrate the existence of a real
or actual controversy, as the courts of this Commonwealth
are generally proscribed from rendering decisions in the
abstract or issuing purely advisory opinions.
Off. of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014) (citation omitted).
Here, the City asserts that McGuire lacks standing because nothing in
the Tort Claims Act authorized Neidig to assign his indemnification rights to
McGuire, and, thus, the assignment is invalid. McGuire retorts that nothing in the
Tort Claims Act prohibited Neidig from assigning to McGuire his indemnification
rights thereunder and, as assignee, McGuire is directly aggrieved by the City’s
failure to indemnify.
Section 8548(a) of the Tort Claims Act provides:
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). Nothing in the Tort Claims Act expressly prohibits, authorizes
or addresses the assignment of an employee’s indemnification right thereunder.
10
The City acknowledges that “[n]either published nor unpublished
decisions in the Commonwealth address the propriety of a public employee
assigning his/her indemnification rights.” City Br. at 13-14 (footnote omitted).
Notwithstanding, a factually similar federal district court case provides some
insight.6 In Best v. Keenan (E.D. Pa. No. 03-5651, filed October 14, 2004), 2004
U.S. Dist. LEXIS 27000 (Best I), the plaintiff filed a complaint against the City of
Philadelphia (Philadelphia) and several police officers alleging excessive force.
Specifically, the plaintiff similarly alleged a violation of Section 1983 and state law
assault and battery claims. After Philadelphia and several police officers were
dismissed from the action, the jury returned a verdict against the sole remaining
police officer defendant (Officer Keenan). Philadelphia refused to pay any judgment
on Officer Keenan’s behalf. Thereafter, the plaintiff moved to compel Philadelphia
to indemnify Officer Keenan and pay the judgment and attorney’s fees on Officer
Keenan’s behalf.
The Best I Court reasoned:
Nothing in [the] Tort Claims Act suggests that a plaintiff
in an underlying cause of action may directly seek
indemnification from the defendant’s employer. The
Pennsylvania Supreme Court has held that the purpose of
the indemnification provisions ‘. . . is to permit local
agency employees to perform their ‘official duties’
without fear of personal liability, whether pursuant to state
or federal law, so long as the conduct is performed during
the course of their employment.’ Wiehagen [v. Borough
of N. Braddock], . . . 594 A.2d 303, 306 (Pa. 1991). Such
language is indicative of the statutory intent to protect the
employee, not the injured plaintiffs. Indeed, at least two
courts from this Circuit have held that the Tort Claims Act
‘is not meant to provide a cause of action for a plaintiff in
an underlying action.’ Johnson v. City of Erie, Pa., 834 F.
6
Although federal district court decisions are not binding, they may be cited as persuasive
authority. Mannella ex rel. Mannella v. Port Auth. of Allegheny Cnty., 982 A.2d 130 (Pa. Cmwlth.
2009).
11
Supp. 873, 877 (W.D. Pa. 1993); see also Talley by Talley
v. Trautman[ (E.D. Pa. No. 96-5190, filed March 13,
1997), 1997 U.S. Dist. 3279, at *17-18] (‘It does not
follow, however, [] that a governmental agency may have
to indemnify one of its employees for intentional torts
committed in the course of his duties to that the
governmental agency therefore becomes directly liable to
the plaintiff under the doctrine of respondeat superior
under a different section of the Act.’). In turn, our research
has not revealed, and plaintiff has not cited, any case
allowing a plaintiff in an underlying cause of action to
pursue an indemnification action under [Section 8548 of
the Tort Claims Act].
In light of this jurisprudence, it remains abundantly clear
that plaintiff does not have any legal entitlement to compel
[Philadelphia] to satisfy the judgment against Officer
Keenan. [Philadelphia] was dismissed as a defendant from
the lawsuit. Thereafter, the trial proceeded only against
individual officers, with Officer Keenan remaining as the
sole defendant by the time the case went to the jury for
deliberations. The jury reached a verdict against Officer
Keenan for acts committed in the scope of his duties as a
police officer and this Court entered a judgment against
him for compensatory damages, punitive damages and
plaintiff’s attorney’s fees and costs. Individually, he
remains responsible for this judgment. While the officer
is now entitled to bring an indemnification action
against his employer under the Tort Claims Act, plaintiff
has no standing to pursue such a claim.
Best I, 2004 U.S. Dist. LEXIS 27000, at *5-6 (emphasis added; footnotes omitted).
Thereafter, Officer Keenan assigned to the plaintiff all monies due Officer Keenan
from Philadelphia under the Tort Claims Act. The plaintiff then renewed his motion
to compel Philadelphia to pay the judgment and attorney’s fees. In a subsequent
decision, the Court explained:
Armed with assignment of rights from Officer Keenan,
plaintiff, in the case at bar, now seeks to compel
[Philadelphia] to indemnify Officer Keenan, under
[Section 8548 of the Tort Claims Act], for the amount of
the judgment, plus attorney’[s] fees and costs, rendered
12
against him in the above-captioned action. ‘It is clear that
an action under the Tort Claims Act, which mandates
specific procedures for indemnification by
municipalities for judgments rendered against public
employees, is the proper recourse for a public employee
faced with such judgment when the public body is not
named in the suit.’ Retenauer v. Flaherty, . . . 642 A.2d
587, 594 (Pa. C[mwlth]. 1994)[.]
Best v. Keenan (E.D. Pa. No. 03-5651, filed March 12, 2005), 2005 U.S. Dist. LEXIS
3960, at *5-6 (Best II). The Best II Court concluded:
Such an action, however, lacks the required legal and
factual interdependence necessary for this Court to invoke
its ancillary jurisdiction. The underlying action proceeded
under a [Section] 1983 claim of excessive force, with the
Court exercising its supplemental jurisdiction over the
state law claims of assault and battery. See [Section 1367
of the United States Code,] 28 U.S.C. § 1367. Although
[] Philadelphia was originally a party to the action and
defended Officer Keenan throughout the course of this
matter, it had been voluntarily dismissed as a party prior
to the start of trial. The Court thereafter entered judgment
against only Officer Keenan. The motion now pursued by
plaintiff is not simply an effort to collect on that judgment,
but rather an attempt to establish liability, under state law,
on the part of [] Philadelphia. This determination turns on
an interpretation of the indemnification provision of the
state Tort Claims Act - a theory of liability not present in
the initial action.
Accordingly, plaintiff now has several options available to
him. He may move in this Court, under the Federal Rules
of Civil Procedure, to enforce the judgment against
Officer Keenan, without concern for [Philadelphia’s]
liability. Alternatively, he may use the assignment of
rights given to him by Officer Keenan and bring a state
court action, under [Section 8548 of the Tort Claims
Act], against [] Philadelphia. Under well-established
federal jurisprudence, [] he may not, however, pursue
indemnification from [Philadelphia] in federal court.
13
Best II, 2005 U.S. Dist. LEXIS 3960, at *7-8 (emphasis added). Thus, the plaintiff
was afforded the opportunity to pursue a state court action.7
Here, the City argues that exceptions to governmental immunity set
forth in the Tort Claims Act are strictly construed and, since the Tort Claims Act
permits indemnification for municipal employees, a non-employee may not seek
indemnification. It further maintains that Section 8548(a) of the Tort Claims Act’s
plain language clearly provides that only a local agency employee may seek
indemnification thereunder. Thus, consistent with the interpretation in Best I, the
federal district court found that the plaintiff did not have any legal entitlement to
require Philadelphia to satisfy the judgment against Officer Keenan.
Notwithstanding the City’s argument, “[w]here an assignment is effective, the
assignee stands in the shoes of the assignor and assumes all of his rights.” Smith
v. Cumberland Grp., Ltd., 687 A.2d 1167, 1172 (Pa. Super. 1997) (emphasis added).
There is nothing in the Tort Claims Act prohibiting an assignment of rights.
Accordingly, when the plaintiff acquired an assignment of rights from Officer
Keenan, the Best II Court acknowledged the plaintiff’s right to pursue
indemnification, since, having acquired an assignment, the plaintiff was merely
exercising Officer Keenan’s rights to indemnification as a local agency employee.
In the instant matter, McGuire obtained a judgment against Neidig for
conduct that occurred while Neidig acted under color of state law. Neidig thereafter
7
Despite the federal court’s description of the assignment of rights granted to Best, Officer
Keenan sought indemnification from Philadelphia in state court. See Keenan v. City of Phila.,
936 A.2d 566 (Pa. Cmwlth. 2007). On appeal from the lower court’s denial of indemnification,
this Court described the assignment differently, explaining: “Best’s attorney and [Officer] Keenan
then entered into an agreement to forgive his debt to Best and assign Best’s attorney any amount
he received following a claim for indemnification from [Philadelphia].” Id. at 568 n.5. Ultimately,
this Court upheld the trial court’s denial of indemnification, because the federal jury found Officer
Keenan had engaged in willful misconduct.
14
assigned his indemnification rights under the Tort Claims Act to McGuire in
exchange for McGuire’s agreement not to further seek to collect the judgment from
Neidig. Permitting McGuire to pursue Neidig’s indemnification rights from the City
in exchange for McGuire’s release of Neidig’s personal liability to McGuire is
consistent with the indemnification provision’s purpose “to permit local agency
employees to perform their official duties without fear of personal liability, whether
pursuant to state or federal law, so long as the conduct is performed during the course
of their employment.” Wiehagen, 594 A.2d at 306. Standing in Neidig’s shoes,
McGuire is aggrieved by the City’s failure to indemnify Neidig. Accordingly,
because this Court concludes that McGuire has standing to pursue indemnification
on Neidig’s behalf, we will address the substantive issues McGuire raises on appeal.
III. Collateral Estoppel
McGuire first contends that the Federal Court Action determination that
Neidig injured McGuire while acting under color of state law collaterally estopped
the City from litigating the issue of whether Neidig was acting within the scope of
his office or duties as a City police officer. “Generally, collateral estoppel forecloses
re-litigation of issues of fact or law in subsequent actions where” certain specific
criteria are met. Pa. Bd. of Prob. & Parole v. Pa. Hum. Rels. Comm’n, 66 A.3d 390,
395 (Pa. Cmwlth. 2013).
Collateral estoppel will only apply where: the issue is the
same as in the prior litigation; the prior action resulted in
a final judgment on the merits; the party against whom the
doctrine is asserted was a party or in privity with a party
to the prior action; and the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the
issue in the prior action. In some renditions, courts add a
fifth element, namely, that resolution of the issue in the
prior proceeding was essential to the judgment.
15
In re Coatesville Area Sch. Dist., ___ A.3d ___ (Pa. No. 7 MAP 2020, filed January
20, 2021), slip op. at 6 (citation omitted). “[A]ll [of the criteria] must be met[] in
order to permit the doctrine of collateral estoppel to come into play.” In re Nocella,
79 A.3d 766, 793 (Pa. Cmwlth. 2013), aff’d, 102 A.3d 422 (Pa. 2014).
The Pennsylvania Supreme Court has declared:
Section 8548 [of the Tort Claims Act] clearly and
unambiguously provides that ‘the local agency shall
indemnify the employee for the payment of any judgment’
in an action for injury to person or property brought
against an employee where the employee was acting
within the scope of his duties. [42 Pa.C.S. § 8548(a)
(e]mphasis added). Clearly, this section was intended to
provide for indemnification for any judgment that may be
rendered against an employee while acting within the
scope of his employment.
Wiehagen, 594 A.2d at 305 (bold emphasis added).
In Justice v. Lombardo, 208 A.3d 1057 (Pa. 2019), the Pennsylvania
Supreme Court adopted the Restatement (Second) of Agency § 228(1) (Am. Law
Inst. 1958) (Restatement) scope of employment definition in the context of sovereign
immunity.8 Therein, the Justice Court explained:
Section 228 of the Restatement provides:
8
The Justice Court stated:
We have long held that whether a particular act of an employee is
within the scope of his employment is ordinarily a question of fact
for the jury. We have explained that the only exception to this well-
established rule is where neither the facts nor the inferences to be
drawn from them are in dispute. In such a case, the court may decide
the scope of employment question as a matter of law. However,
where more than one inference may be drawn from the facts, the
issue of whether an employee was acting within the scope of
employment is for the jury.
Justice, 208 A.3d at 1068 (citations omitted).
16
(1) Conduct of [an employee] is within the
scope of employment if, but only if:
(a) it is of the kind he is employed to perform;
(b) it occurs substantially within the
authorized time and space limits;
(c) it is actuated, at least in part, by a purpose
to serve the [employer;] and
(d) if force is intentionally used by the
[employee] against another, the use of force
is not unexpectable by the [employer].
Restatement . . . § 228(1) []. On the other hand, an
employee’s conduct ‘is not within the scope of
employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.’ Id., § 228(2).
Subsequent sections of the Restatement provide additional
criteria for assessing whether conduct falls within the
scope of employment. See, e.g., id., §§ 229-31, 235.
Section 229 [of the Restatement] provides that ‘to be
within the scope of employment, conduct must be of the
same general nature as that authorized, or incidental to that
authorized.’ Id., § 229(1). It also enumerates ten ‘matters
of fact’ to be considered in determining whether or not
conduct, although unauthorized, is nevertheless so similar
to or incidental to the conduct authorized that it is still
within the scope of employment. Id., § 229(2). Pursuant
to [S]ection 230 [of the Restatement], ‘an act, although
forbidden, or done in a forbidden manner, may be within
the scope of employment.’ Id., § 230. Section 231 [of the
Restatement] provides that ‘an act may be within the scope
of employment although consciously criminal or tortious.’
Id., § 231. Pursuant to [S]ection 235 [of the Restatement],
‘an act of a servant is not within the scope of employment
if it is done with no intention to perform it as a part of or
incident to a service on account of which he is employed.’
Id., § 235.
Justice, 208 A.3d at 1067 (footnote omitted).
17
In the Federal Court Action, the jury determined that Neidig acted
under color of state law. “[T]o be under color of state law, the actor must have
exercised ‘power possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.’” Frazier v. City of Phila.,
756 A.2d 80, 83 (Pa. Cmwlth. 2000) (quoting Costa v. Frye, 588 A.2d 97, 99 (Pa.
Cmwlth. 1991)).
McGuire argued to the trial court, and now argues to this Court, that
since the jury’s finding was equivalent to a finding that Neidig acted within the scope
of his employment, the first collateral estoppel requirement was met. McGuire
asserted to the trial court that this Court in Tepper v. City of Philadelphia Board of
Pensions and Retirement, 163 A.3d 475 (Pa. Cmwlth. 2017), treated the terms under
color of state law and scope of employment as the same. In Tepper, this Court
addressed whether an off-duty police officer convicted of murdering his neighbor,
and found by a federal jury to have used deadly force while acting under color of
state law, had engaged in malfeasance in office or employment under the City of
Philadelphia Public Employees Retirement Code (Retirement Code),9 which
disqualified him from pension eligibility. On appeal, the trial court affirmed the
Philadelphia Board of Pensions and Retirement’s (Pensions Board) decision that
Tepper was collaterally estopped from asserting that he had not acted “in [his] office
or employment” under the Retirement Code because the federal jury had found that
Tepper had acted under color of state law. Tepper, 163 A.3d at 477 (emphasis
added). On appeal, this Court concluded that “acting ‘under color of state law’ for
purposes of Section 1983 has the same meaning as ‘in office or employment’ under
9
“Section 22-1302(1)(a)(.5) of the Retirement Code provides that an employee shall not
be entitled to retirement or other benefits or payments, except a return of the contribution paid, if
he or she ‘pleads or is finally found guilty . . . of . . . [m]alfeasance in office or employment.’
Phila. Pub. Emps. Ret. Code, [Phila. Code] § 22-1302(1)(a)(.5).” Tepper, 163 A.3d at 477 n.1
(emphasis added).
18
the Retirement Code [], where the jury found that Tepper acted ‘under color of state
law’ in his official capacity as a police officer.” Tepper, 163 A.3d at 483.
In the instant matter, the trial court distinguished Tepper, explaining:
In Tepper, the jury accepted that Tepper exited his home,
flashed his badge, and identified himself as a police
officer.
After hearing those facts, the jury found that Tepper acted
‘under color of state law,’ in his official capacity as a
police officer, under the definitions of that term and the
guidelines set forth in the federal jury charge. The facts
presented in this case are quite distinguishable; there was
never the display of a badge or the announcement as a
police officer, or any other indication that Neidig was a
‘state actor.’ This Court finds these facts critical and
determinative to the jury’s finding and any comparison
with Tepper [is] misplaced.
Trial Ct. Op. at 12-13 (citations omitted). This Court agrees, and also finds Tepper
inapposite in that Tepper involved the Retirement Code, and the relevant language
therein did not use the term scope of employment, but rather addressed
“[m]alfeasance in office or employment.” Tepper, 163 A.3d at 477 n.1 (quoting
Phila. Pub. Emps. Ret. Code, § 22-1302(1)(a)(.5)).
In considering whether “the issue in the prior adjudication was identical
to the one presented in the later action[,]” Pa. Bd. of Prob. & Parole, 66 A.3d at 395,
the trial court further contrasted the meaning of the phrase, under color of state law,
with scope of employment as described in Justice, noting:
The United States Supreme Court has stated that acting
‘under color of state law’ requires that a defendant in a
Section 1983 action has exercised power ‘possessed by
virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’
[West v. Atkins,] 487 U.S. [42,] 49 [(1988)]. ‘If an
individual is possessed of state authority and purports to
act under that authority, his action is state action.’ Griffin
19
v. State of Maryland, 378 U.S. 130, 135 ([]1964)[]
(emphasis added in original).
Trial Ct. Op. at 13. The trial court concluded:
This writer is unwilling to accept the issue decided in the
prior case as identical to the one presented in the instant.
This [trial c]ourt does not find that ‘under color of state
law’ is synonymous with ‘acting within the scope of his
employment[.’] This [trial c]ourt crafts jury instructions
dozens of times throughout the course of every year; there
has never been a time that legal counsel so freely offered
to deem words or terms as synonymous or
interchangeable. This [trial c]ourt routinely argues over
the placement of commas, the placement of each particular
instruction; and often in negligence actions where liability
is admitted, the inclusion of the definition of the term
negligence.
It is contrary to all of this [trial c]ourt’s training and
experience to patently ignore the clear language of the
statutes and precedential holdings spanning nearly 100
years of jurisprudence. It is also contrary to reason and
law to apply the ‘close enough’ rationale that McGuire
now asserts.
Trial Ct. Op. at 15.
Pennsylvania courts have not explicitly ruled on the interplay between
the terms under color of state law and within the scope of employment in the context
of indemnification under the Tort Claims Act.10 But cf., Retenauer. To further
examine whether the jury’s finding in the Federal Court Action that Neidig acted
10
McGuire argues that Section 8548 of the Tort Claims Act “was intended to provide for
indemnification for any judgment that may be rendered against an employee while acting within
the scope of his employment . . . .” McGuire Br. at 14. McGuire relies on Wiehagen, wherein the
Pennsylvania Supreme Court ordered that the Borough of North Braddock must indemnify a police
officer for damages awarded in a federal action for violation of Section 1983, “because there is a
judgment against [the police officer] arising from conduct within the scope of his employment[.]”
Wiehagen, 594 A.2d at 306.
Notably, the Pennsylvania Supreme Court in Wiehagen required indemnification because,
unlike in the instant matter, the parties had explicitly stipulated in the federal court action that the
police officer was acting within the scope of his duties when he struck the plaintiff.
20
under color of state law is equivalent to a finding that Neidig acted within the scope
of employment, this Court looks to federal jurisprudence.
The concepts of acting ‘under color of state law’ and
acting ‘within the scope of employment[,]’ while
comparable[,] are not the same. Compare Barna v. City
of Perth Amboy, 42 F.3d 809, 816 (3d Cir. 1994) (acting
under color of law . . .)[,] with [Restatement] § 228.
Hickenbottom v. Nassan (W.D. Pa. No. 03-223, filed March 29, 2007), 2007 U.S.
Dist. LEXIS 24336, at *139-40 (emphasis added); see also Davies v. Lackawanna
Cnty. (M.D. Pa. No. 3:15-cv-1183, filed March 16, 2017), 2017 U.S. Dist. LEXIS
38142; Wash.-Pope v. City of Phila., 979 F. Supp. 2d 544 (E.D. Pa. 2013); Spiker v.
Allegheny Cnty. Bd. of Prob. & Parole, 920 F. Supp. 2d 580 (W.D. Pa. 2013), aff’d,
553 F. App’x 275 (3d Cir. 2014) (The allegation that a probation officer acted under
color of state law was not determinative with respect to whether the probation officer
was acting within the scope of her employment.).
In fact, federal courts have specifically held that a “determination that
[a police officer] acted ‘within the scope of his office or employment’ does not
inevitably flow from a concession that he acted ‘under color of’ Pennsylvania law.”
Zion v. Nassan, 283 F.R.D. 247, 267-68 (W.D. Pa. 2012), aff’d, 556 F. App’x 103
(3d Cir. 2014). “The actions of a state official may ‘constitute state action . . .’ even
when they exceed the limits of the official’s authority.” Id. at 267. The Zion Court
noted that “[t]he Pennsylvania courts have recognized that ‘an assault committed by
an employee upon another person 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. at 267 (bold emphasis added; italic
emphasis omitted) (quoting Costa v. Roxborough Mem’l Hosp., 708 A.2d 490, 493
(Pa. Super. 1998)). Thus, in the context of federal jurisprudence, the determination
in the instant Federal Court Action that Neidig acted under color of law does not
21
dictate that Neidig acted within the scope of his employment. This Court finds the
aforementioned federal jurisprudence persuasive and holds that the trial court
properly concluded that the City was not collaterally estopped from asserting that
Neidig acted beyond the scope of his employment when he injured McGuire.
Having concluded that McGuire did not meet the first collateral estoppel
requirement, this Court need not address the other criteria.11
IV. Evidentiary Issues
McGuire also argues that the trial court erred when it precluded witness
testimony, intervened in witness examination, and permitted the City to publish
photographs of McGuire’s injuries to the jury. First, McGuire asserts that the trial
court improperly permitted the City to elicit opinion testimony from the City’s Police
Chief Scott Schubert (Chief Schubert) that Neidig was not acting as a City police
officer when he injured McGuire, but prohibited McGuire from eliciting contrary
opinion testimony from McGuire’s witness, Fraternal Order of Police (FOP)
President Robert Swartzwelder (Swartzwelder).
Initially, “[t]he decision whether to admit or exclude the testimony of a
witness is within the sound discretion of the trial court and will not be reversed
absent an abuse of discretion.”12 Daddona v. Thind, 891 A.2d 786, 811 (Pa. Cmwlth.
2006). “An abuse of discretion ‘is not merely an error of judgment, [but is a]
judgment [that is] manifestly unreasonable, or the result of partiality, prejudice, bias
11
Notwithstanding, McGuire did not demonstrate that it was necessary to the federal
court’s ruling that it make a finding that Neidig acted within the scope of his employment to
determine that Neidig was liable under Section 1983.
12
Further, “[t]he law is well-established that ‘[a] trial court is vested with wide discretion
in deciding whether to allow the admission of expert testimony into evidence, and is not subject to
reversal absent a clear abuse of discretion.’” In re Condemnation of Parcel ID No. 02-033-004 v.
Lands of Tarlini, 185 A.3d 1177, 1182 (Pa. Cmwlth. 2018) (quoting Daddona v. Thind, 891 A.2d
786, 805 (Pa. Cmwlth. 2006)).
22
or ill-will, as shown by the evidence or the record . . . .’” O’Layer McCready v.
Dep’t of Cmty. & Econ. Dev., 204 A.3d 1009, 1018 n.6 (Pa. Cmwlth. 2019) (quoting
Mielcuszny v. Rosol, 176 A. 236, 237 (Pa. 1934)).
At trial, McGuire called Chief Schubert as on cross-examination,
questioning him, inter alia, about City police officers’ duties and inquiring whether
Chief Schubert considered particular hypothetical conduct to be within the scope of
such duties. See R.R. at 760a. On redirect examination, Chief Schubert specifically
opined that Neidig was not acting within the scope of his employment when he
injured McGuire. See R.R. at 793a-795a.
In his brief to this Court, McGuire inaccurately represents that “[t]he
trial court permitted the [City] to elicit an opinion from [Chief Schubert][] that
[Neidig] was not acting as a [City] police officer when he injured McGuire [and
that] McGuire objected to that opinion testimony on the grounds that [Chief]
Schubert had not been qualified as an expert, but it was overruled.” McGuire Br. at
31 (emphasis added). In support, McGuire cites to Reproduced Record pages 768a
to 769a. However, upon review of the cited record, it is clear that McGuire’s
objection was not to a question seeking to elicit an opinion from Chief Schubert
pertaining to whether Neidig was acting as a police officer when he injured McGuire.
Rather, McGuire’s objection addressed the following hypotheticals posed by
counsel.
Chief Schubert testified:
[City’s Counsel:] So if a call for vandalism came in and
the officer is on [his] way to the vandalism call and on the
way [he] get[s] another call that a burglary is in process,
would it be reasonable for that officer to divert [his]
attention to the burglary?
[Chief Schubert:] Absolutely. And if [he] didn’t, a
supervisor should be diverting [him].
23
[McGuire’s Counsel]: Objection, Your Honor. This
whole line of questioning is hypotheticals. He hasn’t
been qualified as an expert to testify, and I just object
to the relevance of asking this witness all these
hypotheticals.
THE COURT: Do you want to respond to that?
[City’s Counsel]: I do have a response. He was asked a
number of hypothetical questions, and he is called to talk
about the scope of employment. He’s also been
questioned a lot on the policies, and these are hypothetical
questions that relate to the policies.
[McGuire’s Counsel]: He’s been asked on cross, which is
permissible. On direct, leading him through hypothetical
questions to get to a suggested answer is impermissible.
THE COURT: I’m going to allow the question. And
[McGuire’s Counsel] is correct. You cannot lead.
[City’s Counsel]: Thank you.
R.R. at 768a-769a (emphasis added). Thus, McGuire voiced a general objection to
the City’s counsel asking Chief Schubert hypotheticals. When the City’s counsel
asked Chief Schubert whether Neidig acted within the scope of his employment, it
was clearly not a hypothetical question. The City’s counsel inquired:
Q. Was [] Neidig acting within the scope of his
employment, in your view, when he took whatever actions
and decisions that he took on November 2, 2012?
A. Are you asking me do I think he was acting as a police
officer?
Q. A Pittsburgh police officer?
A. I do not.
R.R. at 793a.13 The City’s counsel concluded questioning Chief Schubert, asking:
13
McGuire’s counsel did not object to this question. It was not until after Chief Schubert
was asked to explain why he did not believe Neidig was acting as a police officer when he injured
McGuire, and Chief Schubert had answered, that McGuire’s counsel objected to that answer solely
24
Q. So based on the facts and circumstances, do you think
what specifically happened on November 2, 2012, was
within the scope and office of a [City] police officer?
A. I don’t believe he was acting as a [City] police officer
at that time.
R.R. at 795a (emphasis added). McGuire’s Counsel did not object to this question.
The law is well established that “‘[t]o preserve an issue for appeal, a litigant must
make a timely, specific objection at trial and must raise the issue [i]n post-trial
motions.’ Issues not preserved for appellate review cannot be considered by this
Court, even if the alleged error involves ‘a basic or fundamental error.’” City of
Phila. v. DY Props., LLC, 223 A.3d 717, 722 (Pa. Cmwlth. 2019) (quoting Mun.
Auth. of the Borough of Midland v. Ohioville Borough Mun. Auth., 108 A.3d 132,
136-37 (Pa. Cmwlth. 2015) (original emphasis omitted)) (emphasis added).
In addition, the Pennsylvania Superior Court has explained:
Pennsylvania Rule of Evidence 701, regarding ‘Opinion
Testimony by Lay Witnesses’ provides,
If a witness is not testifying as an expert,
testimony in the form of an opinion is limited
to one that is:
(a) rationally based on the witness’s
perception;
(b) helpful to clearly understanding the
witness’s testimony or to determining a fact
in issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of
[Pennsylvania] Rule [of Evidence] 702.
Pa.R.E. 701. ‘[T]echnical expertise does not ipso facto
convert a fact witness, who might explain how data was
on the basis that the issue was resolved in federal court. See R.R. at 794a. Chief Schubert had
already answered the question, and the City’s counsel continued questioning Chief Schubert
without the trial court ruling on that objection.
25
gathered, into an expert witness, who renders an opinion
based on the data[.]’ Branham v. Rohm & Haas Co., . . .
19 A.3d 1094, 1110 (Pa. Super. 2011). ‘Fact testimony
may include opinion or inferences so long as those
opinions or inferences are rationally based on the
witness’s perceptions and helpful to a clear understanding
of his or her testimony.’ Brady by Brady v. Ballay, 704
A.2d 1076, 1082 (Pa. Super. 1997).
Commonwealth v. T.B., 232 A.3d 915, 919 (Pa. Super. 2020).
Here, McGuire called Chief Schubert as a fact witness as on cross-
examination to support McGuire’s contention that Neidig acted within the scope of
his employment. Chief Schubert oversees police officers’ job performance and can
impose discipline when police officers violate their duties. On redirect examination,
Chief Schubert offered a specific opinion that Neidig had acted outside the scope of
his duties when he injured McGuire. Consistent with Pennsylvania Rule of Evidence
701, Chief Schubert’s opinion was rationally based on his perceptions and was
helpful to the jury in determining the City’s expectations of a police officer in
Neidig’s situation. See Pa.R.E. 701(a), (b). It was “not based on scientific, technical,
or other specialized knowledge . . . .” Pa.R.E. 701(c). Thus, even if McGuire had
timely and specifically objected to Chief Schubert’s testimony, this Court would
conclude that Schubert’s testimony was consistent with Pennsylvania Rule of
Evidence 701.
McGuire further argues that the trial court should have permitted him
to present Swartzwelder’s opinion testimony in response to Chief Schubert’s
testimony, and erroneously sustained the City’s objection thereto. Importantly,
McGuire called Chief Schubert as a fact witness as on cross-examination and
questioned him generally about the scope of police officers’ duties. On redirect
examination, Chief Schubert expressed an opinion, without objection, about whether
Neidig’s conduct was within the scope of his duties – police officer duties that Chief
Schubert regularly oversaw.
26
In contrast, McGuire also called Swartzwelder as a fact witness.
McGuire’s counsel explained:
[] Swartzwelder, he’s testifying in his capacity as the
president of the FOP. He is intimately familiar with [City]
policies and procedures. He’s intimately familiar with the
training that the officers receive.
He’s written a bunch of the training curriculum, he’s been
a full[-]time training officer for the last two years, and he’s
also intimately familiar with the expectations of [City]
police officers. He can testify to all of that, and that’s all
directly relevant to the scope of duties of a [City] police
officer.
R.R. at 1013a-1014a. A lengthy exchange between counsel and the trial court
ensued:
[McGuire’s Counsel]: Okay. The purpose of
[Swartzwelder’s] testimony is for him to testify about the
disciplinary procedures for [City] Police; the scope of
duties of a [City] police officer, what he is, what [he/she
is] not expected to do; what the policies mean from the
perspective of a [City] police officer; and whether or not
Neidig was acting as a police officer in accordance with
those policies when the interaction with McGuire took
place.
THE COURT: So you’re submitting [Swartzwelder] as an
expert witness?
[McGuire’s Counsel]: I am not. He is a fact witness
regarding [City] policies and procedures. It’s very much
the same as [Chief] Schubert was testifying about [City]
policies and procedures.
They got to hear from [the] management side about, you
know, what are the expectation[s] of [City] police officers,
and he offered an opinion on whether or not [] Neidig was
acting as a [City] police officer and was acting within the
scope of his duties as a [City] police officer.
We are entitled then to get the FOP’s perspective. They
also have a lot of -- Swartzwelder also has a lot of
27
knowledge and information about this, and we’re entitled
to put that into the record, as well, so the jury can consider
both sides.
....
THE COURT: Was [Neidig] suspended?
[McGuire’s Counsel]: No, but he should -- but --
THE COURT: He should have been?
[McGuire’s Counsel]: Well, if he was acting outside of the
scope of his duties, if the City thought that, he should have
been. And it’s up to the jury to decide bias and credibility
of the witnesses.
THE COURT: I’m ruling I don’t want anything about
penalty proceedings here because he wasn’t penalized.
....
[City’s Counsel]: . . . . The City would also object to
[Swartzwelder] testifying as to his opinion with regards to
[] Neidig and his actions and whether they comport with
the policies and whether they were appropriate actions.
That’s expert testimony. Swartzwelder has not offered a
report, in accordance with the rules. He cannot come here
and testify as an expert witness today.
[McGuire’s Counsel]: Your Honor, [Chief] Schubert
offered exactly the same opinion.
THE COURT: Wasn’t he your witness?
[McGuire’s Counsel]: On cross.
THE COURT: Yeah. Well, you offered him. You’re
bound by that.
[McGuire’s Counsel]: We didn’t offer him as an expert.
THE COURT: You called him.
[McGuire’s Counsel]: But we didn’t offer him as an
expert.
28
THE COURT: It doesn’t matter. You called him. You’re
bound by what he says.
[McGuire’ Counsel]: But we called him as on cross[-
examination]. They then called him on direct, and in their
direct they asked him to offer an opinion about whether or
not [] Neidig was acting within the scope of his duties as a
[City] police officer based on his understanding of the
facts, and [] [Chief] Schubert was allowed to -- Chief
Schubert was allowed to offer that opinion. We are now,
I think, entitled to bring on another opinion, the president
of the FOP.
THE COURT: Wait a minute. [Chief] Schubert would be
in the line of discipline, would he not?
[City’s Counsel]: Yes.
[McGuire’s Counsel]: Yes, but [] Swartzwelder would
also have been involved in the disciplinary process
because -
THE COURT: He’s not in the line of discipline. He can’t
impose any discipline.
....
THE COURT: Had [Neidig] been disciplined, they would
have filed a grievance. I think he can say that. I mean, he
knows when to file a grievance. But you have to watch. I
agree that if he’s going to start giving opinions, then he
should file -- there should have been a report filed of some
sort.
[McGuire’s Counsel]: Again, Your Honor, we are
proffering him as a fact witness regarding the [City’s]
policies and procedures and the scope of duties of a City
[] police officer.
He’s not going to testify about the general scope of duties
of police officers, you know, worldwide or what, you
know, most police departments do. He’s going to testify
specifically about the [City’s] policies and . . . procedures
and whether or not [Neidig’s] conduct was in compliance.
THE COURT: But he is not a -- he is a patrolman, I
believe.
29
[McGuire’s Counsel]: He is a patrolman. He has been
until two years.
THE COURT: He has no rank in the City, so to speak.
He’s not a sergeant, he’s not a lieutenant, he’s not a
captain, he’s not a chief, right?
[McGuire’s Counsel]: No. He’s a patrolman, and he’s
president of the FOP, and now he’s one of the head
training officers.
THE COURT: If you use that topic of head training
officer, then they refer back, ‘Where is the opinion?’
[City’s Counsel]: Exactly.
....
[McGuire’s Counsel]: Yes. But they are basically saying,
‘Well, he was outside the scope of his duties, he was on
his personal time, and that has nothing to do with us.’
What we want Swartzwelder to testify to is he could be
disciplined for his off-duty conduct.
There are policies that say that he can be disciplined for
his off-duty conduct. And if they really thought he did all
these horrible things that they’re now saying that he did,
they could have disciplined him back then, and they never
did.
THE COURT: Well, if he’s going to testify that he can be
disciplined for off-duty conduct, yes, I’ll allow that.
Okay. But I don’t know -- but if he gets in to say, for
instance, ‘Well, Neidig’s conduct didn’t reach that level,’
then no, because then that’s an opinion. Okay?
He can testify that, you know, there are certain instances
where certain off-duty conduct can result in disciplinary
action. But I think this doesn’t go with the thrust of your
case to date. It’s up to you how you try your case. But the
whole thing is he wasn’t disciplined, you know.
[McGuire’s Counsel]: Respectfully, Your Honor, I think
that it absolutely does, because our whole point is he
wasn’t disciplined and he absolutely could have been.
30
THE COURT: Well, that’s a new twist. Before it was --
whatever. But he can’t offer an opinion. I don’t want you
to get into whether or not this guy was penalized or not.
He can say he’s a training -- head training officer,
whatever it is, and that there are instances when you can
be disciplined for even off-duty conduct. Okay?
[McGuire’s Counsel]: Can he testify about the training
that [City] officers like Neidig receive?
THE COURT: Yes, he can.
[McGuire’s Counsel]: About what their scope of duties
are?
[City’s Counsel]: Neidig was trained prior to 2012, prior
to the time that he was, I think, a training officer at all, and
I think he’s a training officer on firearms. I don’t know if
he’s a training officer on off-duty conduct.
[McGuire’s Counsel]: He actually is. He trains on the
statute that gives them -- primary jurisdiction statute.
THE COURT: But this Neidig had been a cop for a while
when this happened, had he not?
[City’s Counsel]: Yeah, six years.
THE COURT: Six years. That’s what I thought. So was
[] Swartzwelder the training officer in 2006?
[McGuire’s Counsel]: He was not the head training
officer. He did give training back then. I can confirm with
him whether or not he was training on the primary
jurisdiction statute six years ago.
THE COURT: All right. Well, I’m allowing this for this
limited purpose. If he gets into opinions, I’ll just stop it,
close it down and we’re done.
R.R. at 1014a-1027a.
As the trial court recognized, Swartzwelder does not supervise police
officers. Rather, Swartzwelder is a patrolman and the FOP President who has
purportedly been involved in disciplinary proceedings. Swartzwelder was permitted
31
to testify to facts within his knowledge. McGuire could have called Swartzwelder
as an expert witness after he properly notified the City’s counsel and prepared and
provided an expert report. He did not do so. Under these circumstances, this Court
concludes that the trial court’s decision to preclude Swartzwelder’s opinion
testimony was not “manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will, as shown by the evidence or the record.” O’Layer McCready, 204
A.3d at 1018 n.6 (quotation marks omitted).
McGuire also argues that when Neidig’s Federal Court Action attorney
Paul Krepps (Krepps) testified, the trial court improperly intervened in his
examination, elicited misleading testimony and prevented Krepps from clarifying
his answers. McGuire references a short portion of Krepps’ testimony during which
the trial court sought to clarify a question and asked Krepps a few questions. See
R.R. at 1005a-1007a. The record reflects that McGuire did not timely and
specifically object to the trial court’s alleged inappropriate intervention and
questioning. See DY Props. Accordingly, McGuire did not preserve this issue, and
this Court may not consider it. See id.
Additionally, McGuire asserts that the trial court erred by permitting
the City to publish photographs of his injuries to the jury, arguing that “permitting
the jury to have an extended, up-close view of those injuries in theatrical fashion by
parading them around was unnecessary and prejudicial.” McGuire Br. at 37-38.
However, McGuire provides no relevant legal authority in his brief to support that
argument. This Court has held that a party waives an issue if he neglects to cite to
relevant legal authority in his brief. See Am. Rock Mechs., Inc. v. Workers’ Comp.
Appeal Bd. (Bik & Lehigh Concrete Techs.), 881 A.2d 54 (Pa. Cmwlth. 2005).
Accordingly, this issue is waived.
32
V. Jury Charge
McGuire also proffers that the trial court erred when it included in its
jury charge that Neidig had used “intentional and excessive force,” and instructed
the jury to consider whether the City expected him to do so. Citing Glider v.
Department of Highways, 255 A.2d 542 (Pa. 1969), McGuire contends that he is
entitled to a new trial since an “error in a charge is [a] sufficient ground for a new
trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead
or confuse rather than to clarify a material issue[.]” Id. at 547.
McGuire specifically challenges the following trial court jury charge:
In determining whether the acts of the employee were
within the course and scope of the employment, you
should consider the following factors: First, whether the
act was of a kind and nature that the employee was
employed to perform. Second, whether the act occurred
substantially within the authorized time and space limits.
Third, whether the act was undertook, at least in part, by a
purpose to serve the employer. And, fourth, whether the
intentional and excessive force used by the employee
was not expected by the employer.
R.R. at 1181a (emphasis added). McGuire declares:
The trial court’s instruction as to the fourth factor was
legally incorrect and misleading and rendered the entire
charge regarding course and scope of employment
inadequate and unclear. McGuire objected to the
instruction at the charge conference and argued that it
should read: ‘. . . whether the force used by the employee
was not unexpected by the employer.’ (R.[R. at] 1117a-
[111]8a)[.] The trial court agreed to remove ‘intentional
and excessive’ from the instruction, however, when he
read the instructions to the jury the language had not been
removed. (R.[R. at] 1117a-[111]8a).
33
McGuire Br. at 42 (citations omitted). In addition, McGuire contends that the trial
court’s use of the word expected through its erroneous removal of the prefix un
changed the burden of proof. See R.R. at 1181a. Specifically, McGuire proclaims:
[B]y instructing the jury to consider ‘whether the
intentional and excessive force used by the employee was
not expected by the employer’ the trial court raised
McGuire’s burden from showing that the [City] expected
its officers to use force in the scope of their duties, to
showing that it expected its officers to use ‘excessive’
force when performing their duties.
McGuire Br. at 42-43.
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). ‘It is well settled that in
reviewing a challenge to a jury instruction the charge, as a
whole, must be considered. Furthermore, the trial court
has broad discretion in phrasing the instructions, so long
as the directions given ‘clearly, adequately, and
accurately’ reflect the law.’ Commonwealth v. Lesko, . . .
15 A.3d 345, 397 ([Pa.] 2011) (citation omitted). ‘Error in
a charge is [a] sufficient ground for a new trial, if the
charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a
material issue. 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). Further, ‘[a]
reviewing court will not grant a new trial on the ground of
inadequacy of the charge unless there is a prejudicial
omission of something basic or fundamental. In reviewing
a trial court’s charge to the jury, we must not take the
challenged words or passage out of context of the whole
of the charge, but must look to the charge in its entirety.’
Id. ‘The harmless error doctrine underlies every decision
to grant or deny a new trial. A new trial is not warranted
34
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).
Initially, given that McGuire’s burden of proof argument is
unsupported by legal authority, it is waived. See Am. Rock Mechs. With respect to
McGuire’s other jury charge arguments, the trial court described the four factors the
jury was to consider. At McGuire’s counsel’s request, to reflect Section 228 of the
Restatement, the trial court agreed to omit the terms intentional and excessive when
describing the fourth factor, but neglected to do so when it charged the jury. See
R.R. at 1117a-1119a, 1181a.
Nonetheless, the Federal Court Action verdict sheet14 reflected that the
federal jury had determined that Neidig had used “excessive force.” R.R. at 19a.
Thus, although the trial court had agreed to use the Restatement language, this Court
discerns no prejudice from the trial court’s error, since the force referenced in the
Restatement’s fourth factor was, in the instant matter, the same force the federal jury
had determined was “excessive,” and the focus of the fourth factor was not the nature
of the force used, but whether the force used was unexpected by the employer.
Finally, with respect to the trial court’s omission of the prefix un, that
factor was one of four the jury was to “consider” “[i]n determining whether the acts
of the employee were within the course and scope of the employment[.]” R.R. at
1181a. The jury charge did not direct the jury that the factor was or was not
indicative of acts within or without the scope of employment, only that it was
relevant. It merely informed the jury that the factor was to be “consider[ed.]” R.R.
14
The Federal Court Action verdict sheet was admitted into evidence before the trial court.
See R.R. at 739a-740a.
35
at 1181a. Whether the jury charge contained the word expected or unexpected did
not change the consideration of this factor nor did it attach a particular implication
to the factor being “consider[ed.]” R.R. at 1181a. In addition, McGuire has not
demonstrated that the jury was “palpably misled by what the trial judge said” or that
there was “an omission in the charge which amounts to fundamental error.” Grove,
218 A.3d at 888 (quotation marks omitted). Accordingly, there is no basis for this
Court to grant a new trial.
VI. Willful Misconduct
McGuire next argues that the trial court erred when it denied
indemnification absent a judicial determination in the Federal Court Action that
Neidig committed willful misconduct. McGuire also asserts that the trial court
erroneously permitted the City to present evidence and argument that Neidig
engaged in willful misconduct. This Court emphasizes that under Section 8548(a)
of the Tort Claims Act, a municipality need only indemnify an employee if that
employee was acting within the scope of his office or duties at the time the employee
caused the injury. Because the jury properly determined that Neidig acted beyond
the scope of his employment, and the jury did not reach the willful misconduct issue,
this Court need not address McGuire’s willful misconduct arguments.
For all of the above reasons, the trial court’s order is affirmed.
___________________________
ANNE E. COVEY, Judge
36
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Shane McGuire on behalf of :
Colby Neidig, :
Appellant :
:
v. :
: No. 141 C.D. 2020
City of Pittsburgh :
ORDER
AND NOW, this 10th day of March, 2021, the Allegheny County
Common Pleas Court’s January 3, 2020 order is AFFIRMED. Shane McGuire’s
Application for Motion to Strike Portions of Appellee’s Brief is DENIED.
___________________________
ANNE E. COVEY, Judge