By: Allison Genard, Esq.
Published on: Thu 28th Sep, 2023 By: Campbell Durrant, P.C.
• Pennsylvania Supreme Court holds that a township may not have to pay for an employee’s off duty misconduct, even if the employee is found to be acting under color of law.
• Pennsylvania Supreme Court clarifies the difference between acting under the color of law for the purposes of civil rights lawsuits and acting within the scope of an employee’s duties under the Political Subdivision Tort Claims Act.
• Townships need to act promptly and appropriately when an employee engages in off duty misconduct that could result in potential liability for the township.
No township wants to be on the hook for the damages caused by an employee’s off duty conduct, but the truth is, under certain circumstances, it may be financially responsible. Under the Political Subdivision Tort Claims Act (“PSCTA”), a township must indemnify an employee who gives timely notice that they have been sued, it is judicially determined the employee caused the injury, and the act was (or reasonably believed to be) within the scope of his office or duties. 42 Pa.C.S. § 8548(a). Simply, if someone sues a township employee and the court or jury finds that the employee caused an injury while acting within the scope of their job duties, then the township must pay for the verdict. Indemnifying an employee for conduct is usually clear-cut when an employee is on duty or clearly working. But whether a township must indemnify an employee for off duty conduct can present a much murkier scenario.
In November, the Pennsylvania Supreme Court addressed the sticky wicket that has existed under Pennsylvania law for several decades. Prior to the Court’s decision in McGuire v. City of Pittsburgh, it was unclear whether a township was required to indemnify a township employee, including police officers, when the employee is found to be acting under the color of law for the purposes of a civil rights lawsuit even though the challenged conduct occurred off duty. The Pennsylvania Supreme Court addressed whether acting under the color of law is the same as acting within the scope of job duties for the purposes of indemnification.
The McGuire Decision
The McGuire matter began in 2012, when Colby Neidig, a City of Pittsburgh police officer, was arriving home with his wife and child. Meanwhile, Shane McGuire was with friends in Neidig’s neighborhood smashing pumpkins and engaging in other teenage shenanigans. McGuire had stacked bricks on the doorstep of Neidig’s house and pounded on the front door to get the occupants’ attention. McGuire then attempted to run away from the house and tripped over those bricks as he went running. Neidig was concerned for the safety of his family and property and took chase after the teenagers. Eventually, Neidig caught McGuire, knocked him to the ground, and punched him in the face. Neidig then walked McGuire to a neighbor’s house and told him to stay until an on-duty police officer arrived. Neidig broke McGuire’s nose, which required surgery and medical treatment.
Two years later, McGuire filed a federal lawsuit claiming Neidig used excessive force in violation of his civil rights under 42 U.S.C. § 1983 and assault and battery under Pennsylvania law. A jury entered a verdict in McGuire’s favor finding that Neidig used unreasonable force while acting under color of law under § 1983 and had committed assault and battery. The judgment was entered against Neidig for $235,575. Neidig did not explicitly seek indemnification from the City of Pittsburgh during the federal litigation. Similarly, the City of Pittsburgh did not deny indemnification before it was dismissed as a party at summary judgment. Neidig then assigned to McGuire his right to sue the City for indemnification under the PSTCA.
McGuire filed suit against the City of Pittsburgh in the Allegheny County Court of Common Pleas seeking declaratory judgment that the City was statutorily obligated to indemnify Neidig under the PSTCA. McGuire needed the declaratory judgment to collect the verdict amount. In August 2019, a jury concluded that the City did not have a duty to indemnify Neidig and returned a verdict in its favor. The Commonwealth Court and the Supreme Court affirmed this jury verdict.
The Supreme Court explained that a finding of acting under the color of law under 42 U.S.C. § 1983 is not the same as acting within the scope of duties under the PSTCA. The Court held that under the color of law means that a public employee who misuses or abuses the authority given to him by the state still acts under color of state law while clothed with official state authority. In contrast, the Court found that a four part-test applies to determining whether an employee acted within the scope of their employment. An employee acts within the scope of their employment if the conduct (a) is the kind of conduct he is employed to perform; (b) occurs substantially within the authorized time and space limits; (c) is actuated, at least in part, by a purpose to serve the master; and (d) when force is intentionally used by the servant against another, the use of force is not unexpectable by the master. The Supreme Court held that it was appropriate for the jury to decide the issue of whether Neidig was acting within the scope of his duties and affirmed the verdict that Neidig was not acting within the scope of his duties. Therefore, the City of Pittsburgh was not responsible for the verdict in the federal case against Neidig.
The Supreme Court made it clear that just because a township employee is found to be acting under the color of law under § 1983, it does not automatically mean that the township is on the hook for the verdict. There are several key actions that townships should take when an employee engages in misconduct off duty to preserve the township’s right to deny indemnification.
First, update policies and procedures related to off duty conduct. Township policies and procedures should make it clear that employees can be disciplined for off duty misconduct. The policies should set forth clear rules for reporting off duty incidents and investigative procedures. The policies must be utilized evenly and fairly amongst township employees.
Second, investigate and take appropriate action for off duty conduct. When a complaint or report is received regarding an employee engaging in misconduct off duty, the township must take appropriate action to investigate the misconduct. If the misconduct violates township policies, the employee must be disciplined. The discipline will assist a township with putting up a defense to claims of indemnification. Failure to take these important steps, could weaken any defense to an indemnification claim.
Third, when a lawsuit is filed for off duty conduct, the township should deny indemnification when appropriate. The issue of whether indemnification can and should be denied requires immediate attention to the allegations, investigation of the facts and legal analysis. Making this denial clear in the pleadings stage may save time, money, and other resources by avoiding protracted litigation over the issue. If the employee is sued under the color of law, there will likely still be a duty to pay for his or her defense. In this circumstance, defending the lawsuit will be more costly because the township and the employee will have to be represented by separate attorneys. This additional complication requires coordination with your insurer, which should inform the township of whether it will incur any additional costs because of the need for separate counsel.
If you have any questions, please contact the attorneys at Campbell Durrant, P.C. to discuss this topic further.