S. Lomax v. A. DeSantis

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Lomax, :

Appellant :

:

v. : No. 121 C.D. 2020

: ARGUED: March 15, 2021

Alex DeSantis, in his personal capacity, :

City of Philadelphia Office of the :

Inspector General and Nicole :

Harrington, in her personal capacity, :

City of Philadelphia Office of the :

Inspector General and Anthony Erace, :

in his personal capacity, City of :

Philadelphia Office of the Inspector :

General and Delores Davis, in her :

personal capacity, City of Philadelphia :

Department of Revenue :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE LEADBETTER FILED: May 13, 2021

Sean Lomax appeals from an order of the Court of Common Pleas of

Philadelphia County entering a compulsory nonsuit in favor of Delores Davis, his

supervisor from the City of Philadelphia’s Department of Revenue. Additionally,

Lomax appeals from the trial court’s earlier entry of summary judgment in favor of

three employees from the City’s Office of Inspector General (OIG): Alex DeSantis,

Nicole Harrington, and Anthony Erace (OIG employees). We affirm.1

Lomax managed the City’s Mail Processing and Distribution Center

(Mail Center), located separately from the Municipal Services Building where he

worked. The Department of Revenue oversees the Mail Center. Following

notification from a confidential informant that Mail Center employees allegedly

were claiming excessive overtime and engaging in misconduct such as napping,

drinking, gambling, and watching pornography, the OIG commenced an

investigation in the fall of 2015. As part of the investigation, OIG interviewed

employees, acquired surveillance photos and videos, and examined time records.

Shortly after his July 2016 interview, Lomax resigned.

In September 2016, Lomax appealed his resignation to the Philadelphia

Civil Service Commission. Following an evidentiary hearing, the Commission

determined that Lomax’s resignation was involuntary and required the City to

establish just cause for the termination. (Mar. 3, 2017, Comm’n Op. at 4;

Reproduced R. “R.R.” at 61a.) After two evidentiary hearings in 2017, the

Commission concluded that the City lacked just cause and reinstated Lomax to his

position with full back pay and emoluments. (Sept. 15, 2017, Comm’n Op. at 5;

R.R. at 68a.) The City appealed from the Commission’s determination.

1

Lomax filed a praecipe to enter judgment in favor of Davis pursuant to Rule 227.4 of the

Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 227.4. Subsequently, the trial court denied

Lomax’s post-trial motion as moot and stated that it lacked jurisdiction to rule on the merits. (Jan.

14, 2020 Order at 1; Reproduced R. “R.R.” at 1378a.) Judgment was entered below pursuant to

Rule 227.4(1)(b) upon praecipe of a party (Lomax), because the trial court did not act on the post-

trial motion within 120 days. Consequently, the notice of appeal is timely from the entry of

judgment.

2

In affirming the Commission’s decision, the trial court (Judge Abbe

Fletman) concluded that the Commission did not err in determining that Lomax’s

resignation was involuntary because he proved that OIG notified him that his

termination letter was being prepared and that he would lose his pension if he did

not resign. (June 25, 2018 Trial Ct. Op. at 8; R.R. at 887a.) Additionally, the trial

court concluded that, based on the record the City presented, the Commission did

not err in determining that the City failed to establish just cause. In support, the trial

court noted the accepted testimony of Lomax, Davis, and OIG Investigator

Harrington to the effect that none of them personally witnessed misconduct at the

Mail Center. (Id. at 8-9; R.R. at 887a-88a.) Additionally, the trial court concluded

that the City did not present substantial evidence that Lomax engaged in misconduct

or sufficient evidence to connect him to the alleged inefficiencies and misconduct at

the Mail Center. (Id. at 4; R.R. at 883a.) The City did not appeal.

Amid the Commission’s proceedings, the OIG issued a report outlining

the results of its investigation. (Oct. 7, 2016 OIG Report at 1-17; R.R. at 39a-55a.)

Generally, the report concluded that the Mail Center was highly dysfunctional, with

idle employees and nonexistent supervisors. (Id. at 15; R.R. at 53a.) It included

photographs of several employees purportedly sleeping and one watching

pornography on a phone. Additionally, notwithstanding the fact that overtime

expenses increased while productivity remained unaffected, the report reflected that

no one questioned the increase or visited the site. Notably, the report indicated that

the Bell & Howell processing machines were under-utilized and operating at 22%

capacity. Further, the report noted the low priority that the Department of Revenue

accorded the Mail Center despite increasing evidence of dysfunction and Bell &

Howell’s efforts to bring attention to the inefficient operations. (Id.)

3

As for Lomax’s knowledge of any employee misconduct at the Mail

Center, the report noted that Lomax claimed ignorance. However, he acknowledged

that he spent very little time there despite claiming to have conducted brief site visits

around 5:00 p.m. to 7:00 p.m.2 He conceded that these visits were not daily and that

sometimes he did not visit the Mail Center. (Id. at 13; R.R. at 51a.)

As for overtime, Lomax acknowledged that the Mail Center regularly

operated well into the evenings for a significant period of time and that he personally

accrued about four to five hours of overtime every day waiting for the daily volume

of mail to be processed. (Id.) The report stated that “he was not working at all

during this time—he was just idly waiting for the Mail Center to finish because he

wanted to have his daily report ready for the next morning.” (Id.) Accordingly, the

report concluded that Lomax made no effort to supervise and was content to accrue

overtime each evening “while inexplicably waiting for the employees to finish

processing mail that they ignored during the work day.” (Id. at 15; R.R. at 53a.)

In November 2017, Lomax filed the complaint at issue against the OIG

employees and Davis alleging that they defamed him, violated his privacy, and put

him in a false light vis-à-vis their actions with respect to OIG’s report. Following

discovery, the City filed a motion for summary judgment on behalf of all the

defendants. The trial court (Judge Frederica Massiah-Jackson) granted the motion

with respect to the OIG employees but denied it as to Davis. The trial court

concluded that material issues of fact remained as to whether Davis engaged in

2

Michael McLaurin was the on-site supervisor at the Mail Center, overseeing daily

operations. During his OIG interview, he resigned without making any further statements

regarding his alleged delay of the mail processing during the day and alleged manipulation of

overtime in advance of his upcoming retirement. (Oct. 7, 2016 OIG Report at 3 and 14; R.R. at

41a and 52a.)

4

willful misconduct or acted with actual malice. (May 15, 2019 Order at 1; R.R. at

879a.) Consequently, the case against Davis went to a jury trial.

Before trial, the trial court (Judge Sean F. Kennedy) granted Davis’s

motion in limine seeking to preclude Lomax from introducing provided exhibits.

Following Davis’s oral motion at the conclusion of Lomax’s case, the trial court

entered a compulsory nonsuit based on Lomax’s failure to proffer evidence that

Davis participated in drafting the OIG report. (Aug. 20, 2019 Trial, Notes of Test.

“N.T.” at 116-17; R.R. at 1217a-18a.)

Before this Court, Lomax maintains that the trial court’s respective

rulings from different judges are problematic and that this Court should vacate the

orders entering nonsuit and summary judgment and remand this matter for trial. See

Commonwealth v. Daniels, 104 A.3d 267, 278 (Pa. 2014) (discussing the coordinate

jurisdiction rule, which prohibits “judges sitting on the same court in the same case

[from] overruling each other’s decisions”). However, as we discuss below, we find

no conflict between the trial court’s rulings.

I

Lomax first argues that the trial court erred in granting summary

judgment when he filed a defamation action against individuals who wrote a report

alleging that he engaged in misconduct and the Commission determined that there

was no evidence of misconduct thereby creating an issue of fact as to whether the

individuals’ conduct was defamatory.

The entry of summary judgment is proper where the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Marks v. Tasman, 589 A.2d

5

205, 206 (Pa. 1991). The record must be viewed in the light most favorable to the

non-moving party, and all doubts as to the existence of a genuine issue of material

fact must be resolved against the moving party. Id. Our review of an order granting

summary judgment involves only an issue of law. Id. Hence, our review is plenary.

In granting the summary judgment motion with respect to the OIG

employees, the trial court adopted several theories raised by those employees. It

concluded that they were protected by high public official immunity, which exempts

a high public official from all civil suits for damages arising out of false defamatory

statements, even from statements motivated by malice, provided that the statements

were made in the course of the official’s duties or powers and within the scope of

his authority. Azar v. Ferrari, 898 A.2d 55 (Pa. Cmwlth. 2006). In the alternative,

it determined that they were immune under Section 8550 of the Judicial Code, 42

Pa.C.S. § 8550, for actions taken within the scope of their employment and absent

willful misconduct. Renk v. City of Pittsburgh, 641 A.2d 289 (Pa. 1994); Balletta v.

Spadoni, 47 A.3d 183, 195-96 (Pa. Cmwlth. 2012). In support, it concluded that the

findings in the report were not defamatory and that Lomax failed to present evidence

that the report was false or that the authors knew that it was false.

On review, we conclude the trial court did not err in determining that

the OIG employees were entitled to immunity under the Judicial Code.3 The

investigation that they conducted and the report that they generated fall within the

scope of the OIG’s role of investigating waste and wrongdoing in the City’s

3

By way of analysis, the OIG employees do not appear to be entitled to high public official

immunity. Only high public officials may claim absolute privilege as a defense for statements

made even if they were false and defamatory. Hall v. Kiger, 795 A.2d 497 (Pa. Cmwlth. 2002).

The factors to be considered in determining whether someone is a high public official include the

nature of the person’s duties, the importance of the person’s office, and whether the person has

policy-making powers. Id.

6

executive branch and preventing and correcting problems in the City’s programs and

operations. In other words, the OIG employees were doing their jobs.

Moreover, as discussed below, the fact that the Commission determined

that there was no evidence of misconduct on Lomax’s part did not create an issue of

fact as to whether the conduct of the OIG employees who wrote the report was

defamatory. In determining that the City failed to establish just cause for Lomax’s

termination, the Commission considered the testimony of various witnesses but

determined that the report and photographs were inadmissible. Consequently, the

Commission’s determination regarding the lack of evidence of misconduct on

Lomax’s part did not raise an issue as to whether the authors of the report engaged

in defamatory conduct vis-à-vis the report and Lomax.

II

Lomax next argues that Davis and the OIG employees should be

collaterally estopped from asserting that the report was not defamatory given the

trial court’s final order in the City’s appeal from the Commission’s determination

concluding that there was no evidence of misconduct by Lomax.

“Collateral estoppel acts to foreclose litigation in a subsequent action

where issues of law or fact were actually litigated and necessary to a previous final

judgment.” J.S. v. Bethlehem Area Sch. Dist., 794 A.2d 936, 939 (Pa. Cmwlth.

2002). Collateral estoppel bars a subsequent lawsuit when four criteria are met:

(1) an issue decided in a prior action is identical to one

presented in a later action, (2) the prior action resulted in

a final judgment on the merits, (3) the party against whom

collateral estoppel is asserted was a party to the prior

action, or is in privity with a party to the prior action, and

(4) the party against whom collateral estoppel is asserted

had a full and fair opportunity to litigate the issue in the

prior action.

7

Id.

In general, Lomax maintains that the City had a full and fair opportunity

to litigate the issues presented in this case when it defended its actions before the

Commission and that, accordingly, the trial court should have ruled that collateral

estoppel barred the City from raising such issues on appeal. However, Lomax

waived the issue of collateral estoppel by failing to raise it at trial, in his post-trial

motions, or in his statement of errors filed pursuant to Rule 1925(b) of the

Pennsylvania Rules of Appellate Procedure. Pa. R.A.P. 1925(b). Additionally,

Lomax disclaimed collateral estoppel below by asserting in his response to the City’s

motion for summary judgment that he was not relying on collateral estoppel but

instead relying on substantial evidence to prove that a jury could find in his favor on

both of his claims. (Apr. 4, 2019 Resp. to Mot. for Summ. J., ¶ 38; R.R. at 235a.)

Even if Lomax had not waived his collateral estoppel argument, it is

without merit. Although the Commission considered the testimony of Lomax and

several City employees in determining that the City failed to establish just cause, 4

the Commission concluded that the report and photographs were inadmissible.

Consequently, the Commission never rendered a determination as to the truth or

falsity of the statements in the report. Such a determination would be crucial to

deciding whether the report had defamatory character, one of the elements necessary

to establish defamation. Kelley v. Pittman, 150 A.3d 59, 67 (Pa. Super. 2016).

Accordingly, the issues decided are not identical and the elements of collateral

estoppel would not have been satisfied.

In order to establish just cause, which is not defined, Pennsylvania courts have held that “the

4

cause should be personal to the employee and such as to render him unfit for the position he

occupies, thus making his dismissal justifiable and for the good of the service.” City of Phila. v.

Civ. Serv. Comm’n, 965 A.2d 389, 393-94 (Pa. Cmwlth. 2009).

8

III

Lomax next argues that the trial court erred in granting the nonsuit due,

in large part, to its pre-trial order granting Davis’s motion in limine thereby

precluding him from presenting his case before a jury. In the motion, Davis sought

to preclude Lomax from introducing exhibits related to his resignation, Commission

proceedings, his reinstatement to City employment, Department of Revenue job

descriptions, the OIG’s website, unrelated OIG reports, and his work performance.

She alleged that these exhibits and any testimony related thereto were irrelevant to

the facts at issue, would unfairly prejudice her, could mislead and/or confuse the

jury, could muddy the relevant issues, and would waste time. (Davis’s Mot. in

Limine at 1; R.R. at 1143a.) The trial court concluded that the evidence at issue was

unrelated to the central question of whether Davis had published a communication

of a defamatory nature concerning Lomax. (July 23, 2020 Trial Ct. Op. at 27; R.R.

at 1456a.)

As the trial court determined, there is no indication that Lomax’s

proffered evidence would have established that Davis wrote, or otherwise published,

the report. What Lomax sought to admit, at best, was tangential evidence.

Accordingly, the trial court did not abuse its discretion in granting Davis’s motion

in limine.5

5

Questions as to the admissibility of evidence lie within the sound discretion of the trial court.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014). An abuse of discretion occurs

where there is manifest unreasonableness, partiality, prejudice, bias, ill will, or such lack of support

that the ruling is clearly erroneous, not where an appellate court would have reached a different

result. Id. In other words, an erroneous evidentiary ruling does not warrant a new trial unless it

was harmful or prejudicial to the complaining party. Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.

Super. 2008). Accordingly, absent an abuse of discretion, an appellate court should not reverse

such rulings. Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa. 1999).

9

Moreover, what Lomax sought to admit at the time of trial, the

Commission’s decision and the trial court’s opinion affirming that decision, would

similarly not have established that Davis authored or published the report. The

Commission in its decision pertaining to just cause did not determine that Davis

authored the report. Instead, it summarized Davis’s testimony about supervising

Lomax.6 Additionally, the trial court in its decision affirming the Commission stated

only that Davis did not personally witness any misconduct at the Mail Center. (June

25, 2018 Trial Ct. Op. at 8; R.R. at 887a.) Accordingly, neither the Commission’s

decision nor the trial court’s opinion indicated and/or pointed to any evidence that

Davis wrote or published the report.

As the trial court stated at the outset of the trial, the matter at hand is an

action claiming that the report was defamatory and “the only thing relevant is facts

that go to prove that Miss Davis made the defamatory statement about [] Mr.

6

Davis testified that she supervised Lomax from 2010 to 2015 and then from February to May

2016. Regarding Lomax’s supervision of the Mail Center:

[She] testified that she discussed with [him] the need to be at the

[M]ail [C]enter on a daily basis, particularly in the morning to

ensure employees were reporting to work on time. [She] relied on

[him] to be her eyes and ears . . . and he never reported any

misconduct to her. She visited the [M]ail [C]enter several times a

week and if she did not see [him] there, she would contact him on

his cell phone.

....

Davis further testified that it was her belief that [Lomax] would have

been aware of the behavior at the [M]ail [C]enter if he was present

on a regular basis, and she did not feel he was an effective manager.

. . . [Lomax] would have proceeded through the disciplinary process

had he not resigned.

(Sept. 15, 2017, Comm’n Op. at 2-3; R.R. at 65a-66a.)

10

Lomax.”7 (Aug. 20, 2019 Trial, N.T. at 4; R.R. at 1189a.) However, Lomax was

unable to prove his defamation case at Davis’s trial. Although the trial court

repeatedly questioned Lomax’s counsel as to what questions counsel had for the

witnesses that would establish that Davis wrote the report, counsel persistently

sought to argue the falsity of the allegations in the report and to bring in character

witnesses to testify on Lomax’s behalf. The trial court reminded counsel that the

crux of the case was whether Davis defamed Lomax, which requires publication.

However, all three OIG witnesses testified at trial that they had interviewed Davis

but that she did not participate in drafting the report and did not review it before

publication. (Aug. 20, 2019 Trial, N.T. at 92-94, 97-99, and 101; R.R. at 1211a-

14a.) Additionally, Davis testified that she was not involved in writing the report.

(N.T. at 103; R.R. at 1214a.)

In declining to grant Lomax relief, the trial court held that he “cannot

blame the trial court for the boundaries set by his own complaint,”8 meaning that he

could not, at trial, expand his cause of action or theory of the case beyond the

defamation and false light claims he pled in his complaint. In other words, Lomax’s

complaint alleged that Davis made defamatory statements in the OIG report and that

she participated in writing and drafting the report but Lomax presented no evidence

to establish such claims against Davis. Accordingly, because “[a] judgment of non-

suit is properly entered if a plaintiff has not introduced sufficient evidence to

7

In order to establish the elements necessary for a defamation action, Lomax had to prove: 1)

that the report had defamatory character; 2) that Davis published it to a third party; 3) that the

report referred to Lomax; 4) that any recipients would understand it as defaming Lomax; 5) that it

caused special harm to Lomax; and 6) that if the communication was privileged, Davis abused the

conditional privilege of the communication. Kelley, 150 A.3d at 67.

8

(July 23, 2020 Trial Ct. Op. at 10; R.R. at 1439a.)

11

establish the elements necessary to maintain an action[,]”9 the trial court did not err

in granting the compulsory nonsuit.

For the above reasons, therefore, we affirm.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita

9

Kramer v. Port Auth. of Allegheny Cnty., 876 A.2d 487, 493 (Pa. Cmwlth. 2005).

12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Sean Lomax, :

Appellant :

:

v. : No. 121 C.D. 2020

:

Alex DeSantis, in his personal capacity, :

City of Philadelphia Office of the :

Inspector General and Nicole :

Harrington, in her personal capacity, :

City of Philadelphia Office of the :

Inspector General and Anthony Erace, :

in his personal capacity, City of :

Philadelphia Office of the Inspector :

General and Delores Davis, in her :

personal capacity, City of Philadelphia :

Department of Revenue :

ORDER

AND NOW, this 13th day of May, 2021, the order of the Court of

Common Pleas of Philadelphia County is hereby AFFIRMED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita