McGuire ex rel. Neidig v. City of Pittsburgh

• Decision Date: 10 March 2021
• Docket Number: No. 141 C.D. 2020,141 C.D. 2020
• Citation: 250 A.3d 516
• Parties: Shane MCGUIRE ON BEHALF OF Colby NEIDIG, Appellant v. CITY OF PITTSBURGH
• Court: Pennsylvania Commonwealth Court

250 A.3d 516

Shane MCGUIRE ON BEHALF OF Colby NEIDIG, Appellant

v.CITY OF PITTSBURGH

No. 141 C.D. 2020

Commonwealth Court of Pennsylvania.

Argued February 9, 2021

Decided March 10, 2021

Reargument Denied May 3, 2021

Timothy P. O'Brien, Pittsburgh, for Appellant.

Julie E. Koren, Pittsburgh, for Appellee.

BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE J. ANDREW CROMPTON, Judge.

OPINION BY JUDGE COVEY

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 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 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-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 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. ...

....

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

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