[J-28-2022]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
SHANE MCGUIRE ON BEHALF OF : No. 26 WAP 2021
COLBY NEIDIG, :
: Appeal from the Order of the
Appellant : Commonwealth Court entered March 10,
: 2021 at No. 141 CD 2020, affirming the
: Order of the Court of Common Pleas of
v. : Allegheny County entered January 3,
: 2020 at No. GD-17-009635.
:
CITY OF PITTSBURGH, : ARGUED: April 13, 2022
:
Appellee :
OPINION
JUSTICE WECHT DECIDED: NOVEMBER 23, 2022
This case involves a dispute about whether the City of Pittsburgh has a statutory
duty to indemnify one of its police officers for a judgment entered against him in a federal
civil rights lawsuit. We reject the argument that a federal jury’s finding that a police officer
acted “under color of state law” for purposes of Section 19831 necessarily constitutes a
“judicial determination” that he also acted within the “scope of his office or duties” for
purposes of the Political Subdivision Tort Claims Act.2 Thus, we affirm.
In late 2012, 16-year-old Shane McGuire and a group of his friends smashed
pumpkins and stacked bricks on the doorstep of a home in McGuire’s neighborhood. The
teens were still on the property when the homeowner—City of Pittsburgh Police Officer
1 42 U.S.C. § 1983.
2 42 Pa.C.S. §§ 8541-8564.
Colby Neidig—arrived home with his wife and children. McGuire watched the family’s
reaction to the vandalism and then banged on the front door and ran away, accidently
tripping over his own brick boobytrap in the process.
Neidig heard the commotion, saw McGuire running, and gave chase. After a half-
mile pursuit, Neidig caught McGuire, knocked him to the ground, and punched him in the
face. Neidig was not wearing his police uniform at the time, nor did he identify himself as
a police officer. Neidig called 911 and restrained McGuire until Officer David Blatt, an on-
duty City of Pittsburgh police officer, arrived.
Two years later, McGuire filed a federal lawsuit against Neidig, Blatt, and the City
of Pittsburgh, asserting excessive use of force in violation of 42 U.S.C. § 19833 and state
law assault and battery claims. Blatt and the City were dismissed from the case at the
summary judgment stage, and the claims against Neidig proceeded to a jury trial.
Ultimately, the jury returned a verdict in McGuire’s favor, finding that Neidig used
unreasonable force against McGuire while acting under color of state law under Section
1983, and that Neidig was liable for McGuire’s assault and battery claims as well. The
jury awarded McGuire damages for all three claims. After molding the jury’s verdict into
a single award and adding attorney’s fees to that amount, the court entered judgment
against Neidig for $235,575.
Neidig did not seek indemnification from the City of Pittsburgh. Instead, he
assigned to McGuire his right to sue the City for indemnification either under the Political
3 Section 1983 is a federal statute that allows plaintiffs to sue government entities
and employees for constitutional and other civil rights violations. 42 U.S.C. § 1983
(“Every person who, under color of any statute, ordinance, regulation, custom, or usage,
of any State or Territory or the District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress[.]”).
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Subdivision Tort Claims Act (“PSTCA”), 42 Pa.C.S. §§ 8541-8564, or under any other
legal theory.4 McGuire then sued the City in the Allegheny County Court of Common
Pleas (“the trial court”), seeking a declaratory judgment that the City was statutorily
obligated to indemnify Neidig under Subsection 8548(a) of the PSTCA.5 The trial court
held a jury trial in August 2019 and the jury returned a verdict in favor of the City. The
jury concluded that Neidig was not acting within the scope of his duties when he assaulted
McGuire, meaning that the City was not required to indemnify Neidig under the PSTCA.6
McGuire then appealed to the Commonwealth Court, which affirmed in a published
decision. On appeal, McGuire claimed that the City was collaterally estopped from
arguing that Neidig was not acting within the scope of his office or duties as a City of
Pittsburgh police officer when he used force against McGuire because the federal jury
4 See Assignment of Claims, 8/12/2017, at 2 (R.R. 11a).
5 Subsection 8548(a) of the PSTCA provides:
(a) Indemnity by local agency generally.—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); see also 42 Pa.C.S. § 8501 (defining “judicial determination” to
mean “[a]ny determination by a court of competent jurisdiction including any settlement
approved by such court”).
6 Had the jury concluded that Neidig was acting within the scope of his duties, it then
would have considered whether Neidig’s conduct amounted to “willful misconduct,” a
finding that would negate the City’s duty to indemnify. Given the jury’s verdict, however,
it did not reach the willful-misconduct question. See 42 Pa.C.S. § 8550 (providing that
Section 8548’s indemnity provision does not apply “[i]n any action against a local agency
or employee thereof for damages on account of an injury caused by the act of the
employee in which it is judicially determined that the act of the employee caused the injury
and that such act constituted a crime, actual fraud, actual malice or willful misconduct”).
[J-28-2022] - 3
had already concluded that Neidig assaulted McGuire while acting under color of state
law. In McGuire’s view, “color of state law” (for purposes of Section 1983) is synonymous
with the “scope of office or duties” (as used in the PSTCA), and the City therefore was
estopped from relitigating the issue in state court.
The Commonwealth Court explained that the doctrine of collateral estoppel
precludes a party from relitigating an issue when:
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.7
The Commonwealth Court began and ended its collateral estoppel analysis with
the first element of the above test. The court held that “the determination in the instant
Federal Court Action that Neidig acted under color of law does not dictate that Neidig
acted within the scope of his employment” for purposes of the PSTCA.8 In support of that
conclusion, the Commonwealth Court cited federal precedent holding 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.”9 Thus, the court found that the first element of collateral estoppel was not met, since
7 McGuire on behalf of Neidig v. City of Pittsburgh, 250 A.3d 516, 531 (Pa. Cmwlth.
2021) (quoting In re Coatesville Area School District, 244 A.3d 373, 379 (Pa. 2021)
(citations omitted)).
8 Id. at 535.
9 Zion v. Nassan, 283 F.R.D. 247, 267-68 (W.D. Pa. 2012); see also id. at 267 (“This
court has already recognized that a police officer may sometimes act both ‘under color of
state law’ and beyond the scope of his or her employment.”).
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the issue in the state court litigation was different from the issue in the federal case. As
a result, the Commonwealth Court affirmed the trial court’s judgment.10
McGuire then petitioned for allowance of appeal arguing, among other things, that
a federal jury’s finding that a police officer acted “under color of state law” for purposes of
Section 1983 constitutes a “judicial determination” that the officer acted within the “scope
of his office or duties” under the PSTCA. While McGuire no longer argues in terms of
collateral estoppel, the issue before us, in its simplest terms, remains whether the PSTCA
requires the City to indemnify Neidig for the federal judgment entered against him.
McGuire continues to argue that the “color of state law” concept embodied in Section
1983 is synonymous with the phrase “scope of office or duties” as used in the PSTCA.
Thus, McGuire claims that the judgment entered against Neidig in the federal action
constitutes a judicial determination that Neidig acted within the scope of his office or duties
for purposes of the PSTCA.11 According to McGuire, this means that the City was
required to indemnify Neidig for the federal judgment, and that the state court was wrong
to resubmit to a jury a question that had already been answered in the federal litigation.
The City disagrees with McGuire. It contends that color of state law (under Section
1983) and scope of office or duties (under the PSTCA) are two entirely different concepts,
with the federal jury finding only the former and not the latter.12 The City therefore argues
that the trial court correctly held a jury trial on the unanswered question of whether Neidig
10 McGuire raised other challenges in the Commonwealth Court that are no longer
germane to this appeal, including evidentiary, standing, and jury-instruction issues.
11 Brief for McGuire at 12 (“When the federal jury determined that Neidig injured
McGuire while acting under color of state law, it simultaneously determined that he injured
McGuire within his ‘scope of office or duties’, a legal phrase synonymous with having
acted under color of state law.”).
12 Brief for the City at 8 (calling the two terms “different in name and definition”).
[J-28-2022] - 5
acted within the scope of his office or duties for purposes of the PSTCA, with the jury
concluding that he did not.
We begin our analysis with 42 U.S.C. § 1983, which creates a right of action
against anyone who violates the constitutional or federal statutory rights of another while
acting under “color of state law.”13 “The traditional definition of acting under color of state
law requires that the defendant in a § 1983 action have exercised power ‘possessed by
virtue of state law and made possible only because the wrongdoer is clothed with the
authority of state law.’”14 Thus, “under color of state law” essentially means under
“pretense” of state law, since 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.15
Subsection 8548(a) of the PSTCA, by contrast, does not turn on those same
considerations. The critical inquiry under the PSTCA is whether the public employee’s
actions were “within the scope of his office or duties,” or whether he “in good faith
13 Though Section 1983 does not use the phrase “color of state law,” it has become
a kind of shorthand in the legal lexicon for the more unwieldy language that Congress
used. 42 U.S.C. § 1983 (allowing suits against anyone who deprives another of a
federally protected right “under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia”); see, e.g., Burrell v. City of
Mattoon, 378 F.3d 642, 647 (7th Cir. 2004) (“The two key elements establishing a violation
of § 1983 are (1) a deprivation of a federally guaranteed right, (2) perpetrated under color
of state law.”).
14 West v. Atkins, 487 U.S. 42, 49 (1988) (quoting United States v. Classic, 313 U.S.
299, 326 (1941)).
15 Id. at 49-50 (“It is firmly established that a defendant in a § 1983 suit acts under
color of state law when he abuses the position given to him by the State.”); Gomez v.
Galman, 18 F.4th 769, 775 (5th Cir. 2021) (“More simply, ‘[u]nder ‘color’ of law means
under ‘pretense’ of law.’” (quoting Screws v. United States, 325 U.S. 91, 111 (1945)).
[J-28-2022] - 6
reasonably believed” that they were.16 While decisions interpreting Subsection 8548(a)
are not plentiful, our precedent has interpreted comparable language in different contexts.
Pennsylvania’s sovereign immunity statute, for example, turns on whether a public
employee was acting within “the scope of their duties.”17 This Court has interpreted that
language as embracing the common law “scope of employment” inquiry, which we
analyze using the factors set forth in the Restatement (Second) of Agency.18 Under that
test, an employee’s conduct falls within their scope of their employment 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 master, and
(d) if force is intentionally used by the servant against another, the use of
force is not unexpectable by the master.
Restatement (Second) of Agency § 228 (1958). The Restatement also makes clear that
the “[c]onduct of a servant 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).
Given that the PSTCA “was intended to provide for indemnification for any
judgment that may be rendered against an employee while acting within the scope of his
16 42 Pa.C.S. § 8548(a) (“When an action is brought against an employee of a local
agency for damages . . . 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 [.]”).
17 1 Pa.C.S. § 2310 (“[T]he Commonwealth, and its officials and employees acting
within the scope of their duties, shall continue to enjoy sovereign immunity and official
immunity and remain immune from suit except as the General Assembly shall specifically
waive the immunity.”).
18 Justice v. Lombardo, 208 A.3d 1057, 1068 (Pa. 2019) (“[W]e rely on this Court’s
vicarious liability cases and on the language of the Restatement itself in analyzing
whether Trooper Lombardo acted within the scope of employment[.]”).
[J-28-2022] - 7
employment,”19 we believe that the Restatement’s scope-of-employment test should
govern the inquiry under the PSTCA just as it does under the sovereign immunity statute.
We acknowledge that the PSTCA refers to an employee’s “scope of office or duties” while
the sovereign immunity statute uses the more streamlined “scope of duties.” McGuire
argues that this difference in language is significant, and he suggests that one necessarily
acts within the scope of his or her “office” whenever acting “under color of state law” for
purposes of Section 1983. Thus, McGuire contends that the mere inclusion of the word
“office” in the PSTCA makes it coterminous with Section 1983.
While it is true that we must attempt to give meaning to every word of a statute,20
it is far from clear what the General Assembly meant when it used the phrase “scope of
office or duties” in the PSTCA rather than simply “scope of duties.” A person’s “office”—
in the sense that the General Assembly clearly used the word here—simply means his or
her “position.”21 But there is very little if any difference between the scope of a person’s
position and the scope of his or her duties (or the scope of their “employment,” as it is
phrased in the Restatement). McGuire seems to believe that every public employee in
the Commonwealth has both a “scope of office” and a “scope of duties,” and that one’s
scope of office includes only conduct that would also be considered “under color of state
19 Wiehagen v. Borough of N. Braddock, 594 A.2d 303, 305 (Pa. 1991) (emphasis
omitted).
20 Allegheny Cty. Sportsmen’s League v. Rendell, 860 A.2d 10, 19 (Pa. 2004)
(“Because the legislature is presumed to have intended to avoid mere surplusage, every
word, sentence, and provision of a statute must be given effect.”) (citation omitted).
21 Office, BLACK’S LAW DICTIONARY (11th ed. 2019) (“A position of duty, trust, or
authority, esp. one conferred by a governmental authority for a public purpose[.]”).
[J-28-2022] - 8
law” for purposes of Section 1983.22 We think a more likely explanation is that the
legislature assumed that “scope of office” and “scope of duties” mean essentially the
same thing, but that some public employees (like elected officials) have a scope of “office”
while others (like police officers) have a scope of “duties.”
Perhaps more likely still is that the inclusion of the word “office” here merely reflects
the sort of synonym-heavy, belt-and-suspenders draftsmanship to which legislatures
sometimes are prone.23 Along these lines, it bears emphasizing that the phrase “scope
of office” appears in other state and federal statutes, yet we cannot find a single example
of either a court or a legislature distinguishing an employee’s “scope of office” from his or
her “scope of duties,” or giving “scope of office” a broad interpretation of the sort that
McGuire champions.24 We therefore conclude that the common law “scope of
employment” test, as set forth in the Restatement, should govern under the PSTCA, just
as it does under the sovereign immunity statute.
The only remaining question, then, is whether “scope of office or duties,” as we
have defined it, is synonymous with “under color of state law,” as that phrase is used in
22 Reply Brief for McGuire at 14 (asking this Court to “interpret the legislature’s
inclusion of the word ‘office’ as capturing actions which are taken ‘under color of law,’
even though those actions may fall outside the employee’s ‘scope of duties’”).
23 See, e.g., S.D. CODIFIED LAWS § 39-1-9 (referring to one’s “scope of office, agency,
or employment”).
24 But see Heard v. Blakney, 415 So.2d 487, 489 (La. Ct. App. 1982) (interpreting
“scope of his office or employment” to mean “scope and course of employment”); MINN.
STAT. § 3.732 (“‘Scope of office or employment’ means that the employee was acting on
behalf of the state in the performance of duties or tasks lawfully assigned by competent
authority.”); 28 U.S.C. § 2671 (“‘Acting within the scope of his office or employment’, in
the case of a member of the military or naval forces of the United States or a member of
the National Guard as defined in section 101(3) of title 32, means acting in line of duty.”);
MASS. GEN. LAWS ch. 258 § 1 (defining “[a]cting within the scope of his office or
employment” to mean “acting in the performance of any lawfully ordered military duty, in
the case of an officer or soldier of the military forces of the commonwealth”).
[J-28-2022] - 9
42 U.S.C. § 1983. We agree with the Commonwealth Court that it is not. As explained
above, the “color of state law” inquiry turns on whether the public employee purported to
exercise official state authority, not whether he or she was authorized—or reasonably
believed himself or herself to be authorized—to act in a certain way. This means that “a
police officer may sometimes act both ‘under color of state law’ and beyond the scope of
his or her employment.”25 Thus, indemnity in an excessive force case like this one might
turn on factors that largely are irrelevant under Section 1983’s “color of state law” inquiry,
such as whether the officer reasonably believed that his conduct was authorized by his
employer, or whether he was motivated subjectively by a desire to serve his employer.26
Other courts that have considered whether the common law concept of “scope of
employment” is synonymous with Section 1983’s “color of state law” inquiry seemingly all
have concluded that it is not.27 Indeed, McGuire does not cite (and we cannot find) any
25 Zion, 283 F.R.D. at 267.
26 Compare Anderson v. Moussa, 250 F. Supp. 3d 344, 350 (N.D. Ill. 2017)
(“[Section] 1983’s color of law requirement concerns whether a police officer wielded—
with or without authorization—state authority[.]”), with Restatement (Second) of Agency
§ 228 (1958) (conduct falls within the scope of one’s employment only when it is “of the
kind he is employed to perform,” it “occurs substantially within the authorized time and
space limits,” and it “is actuated, at least in part, by a purpose to serve the master”).
27 See, e.g., Anderson, 250 F. Supp. 3d at 350 (holding that the phrase “‘under color
of” state law under § 1983 is not coextensive with ‘scope of employment’” for purposes of
Illinois’ governmental immunity statute); Zion, 283 F.R.D. at 267 (holding that the actions
of a state official may constitute state action “even when they exceed the limits of the
official’s authority”); Shrader v. Emps. Mut. Cas. Co., 907 So.2d 1026, 1033 (Ala. 2005)
(“The meaning of the phrase ‘under color of law’ is broader than the phrase ‘within the
line and scope of employment.’” (emphasis omitted)); Wilson v. City of Chicago, 120 F.3d
681, 684 (7th Cir. 1997) (stating that whether a police officer acted within the scope of his
employment and whether he acted under color of state law are “closely related, although
not identical” issues); Coleman v. Smith, 814 F.2d 1142, 1149 (7th Cir. 1987) (“We do not
confuse the ‘under color of state law’ element of section 1983 with the ‘scope of
employment’ requirement of the indemnification statute. A finding of the first element is
not necessarily a finding as to the latter.”); Cameron v. City of Milwaukee, 307 N.W.2d
164, 169 (Wis. 1981) (“We do not perceive a substantial equation between conduct which
[J-28-2022] - 10
court that has held otherwise. Put simply, the “color of state law” and “scope of
employment” inquiries “do not involve precisely parallel considerations”28 because
Section 1983 “imposes liability on state officials for conduct taken within, as well as
without, the scope of their authority.”29
Because we hold that “color of state law” is not synonymous with “scope of office
or duties,” we also find that McGuire’s remaining issues are moot. In his second and third
issues, McGuire claims that the trial court erred in submitting to a jury the question of
whether Neidig was acting within the scope of his office or duties when he assaulted
McGuire. According to McGuire, the only question in the state declaratory judgment
action was whether it had been “judicially determined” in the federal case that Neidig
acted in the scope of his office or duties—which McGuire argues is a pure question of law
that the court should have answered on its own.30 In contrast, the City contends that,
because the question of whether Neidig’s conduct fell within the scope of his office or
is within the scope of a municipal or state employee's employment and conduct which
may be termed ‘under color of law.’”).
28 Maimaron v. Commonwealth, 865 N.E.2d 1098, 1107 (Mass. 2007) (holding that
the color of state law and scope of employment inquiries “do not involve precisely parallel
considerations” because the “scope of employment issue bespeaks a narrower inquiry”).
29 Shrader, 907 So.2d at 1033 (cleaned up) (quoting Westberry v. Fisher, 309 F.
Supp. 12, 15 (D. Me. 1970)).
30 Brief for McGuire at 26 (“Because the issue of whether Neidig acted in the ‘scope
of his office or duties’ was required to be determined in the Federal Litigation, the only
issue to be decided in the Declaratory Judgment Action was whether it was, ‘judicially
determined’ in that Litigation that Neidig acted in the scope of his office or duties.”); id. at
27 (“The issue in a declaratory judgment action for indemnification under the PSTCA as
to whether the prerequisites for indemnification were ‘judicially determined’ in the
underlying damages action was a pure question of law for the court and not a question of
fact for the jury.”).
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duties was not decided in the federal action, it was ripe for litigation in the state declaratory
judgment action.
“It has long been the rule in Pennsylvania that this Court will not decide moot
questions” where there exists no actual case or controversy.31 A question is moot unless
it involves “a legal controversy that is real and not hypothetical” and it “affects an individual
in a concrete manner so as to provide the factual predicate for a reasoned adjudication.”32
Here, it is a moot question whether the trial court erred in submitting to a jury the
issue of whether Neidig injured McGuire “within the scope of his office or duties” because
the answer to that question cannot possibly affect the outcome of this case, making it an
entirely hypothetical controversy.33 Even if McGuire is correct that “whether Neidig acted
in the ‘scope of his office or duties’ was required to be determined in the Federal
Litigation,”34 and that the only question for the state court was whether it had been, then
the judgment still should be affirmed because, as we have explained above, the federal
jury simply did not consider whether Neidig acted within the scope of his office or duties.
In other words, McGuire’s second and third issues depend upon us agreeing with the
proposition that “color of state law” and “scope of office or duties” mean the same thing—
31 Meyer v. Strouse, 221 A.2d 191, 192 (Pa. 1966) (citation omitted).
32 Dow Chem. Co. v. EPA, 605 F.2d 673, 678 (3d Cir. 1979); see also Mistich v. Pa.
Bd. of Prob. & Parole, 863 A.2d 116, 119 (Pa. Cmwlth. 2004) (“A controversy must
continue through all stages of judicial proceedings, trial and appellate, and the parties
must continue to have a ‘personal stake in the outcome’ of the lawsuit.” (quoting Lewis v.
Continental Bank Corp., 494 U.S. 472, 477-78 (1990)).
33 See Tur v. YouTube, Inc., 562 F.3d 1212, 1214 (9th Cir. 2009) (per curiam) (“[A]n
issue is moot when deciding it would have no effect within the confines of the case itself.”).
34 Brief for McGuire at 26.
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which, as we have explained, we do not. Thus, we conclude that any substantive analysis
of these issues would be academic and purely advisory.35
In summary, we reject the argument that a federal jury’s finding that a police officer
acted “under color of state law” for purposes of Section 1983 constitutes a “judicial
determination” that he acted within the “scope of his office or duties” for purposes of the
PSTCA. Given that conclusion, McGuire cannot prevail on the merits of this appeal even
if he were to convince us that the trial court erred in allowing a jury to consider anew
whether Neidig acted within “the scope of his office or duties” when he used force against
McGuire. Thus, we decline to consider McGuire’s subsidiary issues, and we affirm.
Chief Justice Todd and Justices Dougherty and Brobson join the opinion.
Justice Donohue files a concurring opinion in which Justice Mundy joins.
The Late Chief Justice Baer did not participate in the decision of this matter.
35 Stuckley v. Zoning Hearing Bd. of Newtown Twp., 79 A.3d 510, 516 (Pa. 2013)
(“Where the issues in a case are moot, any opinion issued would be merely advisory and,
therefore, inappropriate.”).
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