Citing sovereign immunity, Commonwealth Court upholds dismissal of defamation case from former SEPTA employee

By Nicholas Malfitano | Dec 5, 2016

HARRISBURG – The Commonwealth Court of Pennsylvania has thrown out a defamation case filed against the Southeastern Pennsylvania Transportation Authority (SEPTA) and its Chief of Police, ruling the claims are barred by sovereign immunity.

Commonwealth Court Judges Patricia A. McCullough, Julia K. Hearthway and Rochelle S. Friedman ruled Nov. 30 to affirm a granting of motion for judgment on the pleadings, in a defamation case brought by plaintiff Douglas Ioven against SEPTA and its Chief of Police, Thomas Nestel.

Friedman wrote the Court’s opinion in this matter.

Ioven appealed from the Nov. 17, 2015, order of the Philadelphia County Court of Common Pleas that granted the motion for judgment on the pleadings filed by SEPTA and Nestel, and dismissed Ioven’s complaint with prejudice.

Ioven, a former SEPTA employee, initiated legal action against the defendants claiming Nestel published and distributed an Officer Safety Bulletin that contained false statements about him to various law enforcement groups.

The Bulletin stated Ioven “had pointed a loaded firearm at a pedestrian, did not have a permit to carry a concealed weapon, and impersonated a police officer on several occasions.” The complaint further alleged Nestel “knew or should have known that the statements he made about Ioven were false and that Nestel acted within the course and scope of his employment when he made the statements.”

Ioven’s complaint included claims against Nestel for slander, defamation, libel, and intentional infliction of emotional distress, and further alleged SEPTA was vicariously liable. Later, preliminary objections filed on the part of the defendants succeeded in the dismissal of the intentional infliction of emotional distress claim on Aug. 5, 2015.

“On Oct. 2, 2015, defendants filed a motion for judgment on the pleadings, requesting that the trial court dismiss Ioven’s remaining claims based on sovereign immunity. On Nov. 17, 2015, the trial court granted defendants’ motion for judgment on the pleadings and dismissed Ioven’s complaint with prejudice,” Friedman said.

The trial court decided Ioven’s claims were prohibited under Section 8522 of State Judicial Code, more well-known as the Sovereign Immunity Act.

“Initially, Ioven claims he can demonstrate slander and defamation per se, which bars Nestel from asserting sovereign immunity. We disagree,” Friedman said.

Ioven, citing Section 8550 of the State Judicial Code, alleges that Nestel “committed intentional and willful misconduct when he knowingly created the Bulletin accusing Ioven of crimes, which Nestel knew Ioven did not commit”, and Ioven claims that Nestel cannot point to any criminal charges against Ioven to substantiate the allegations in the Bulletin.

Friedman noted the defendants correctly argued that Commonwealth employees “do not lose their sovereign immunity protection for alleged claims of willful misconduct” – and that waiver of immunity “only applies to actions of local agency employees, not to Commonwealth employees, where their actions constitute a crime, actual fraud, actual malice, or willful misconduct.”

“Commonwealth employees do not lose their immunity for intentional torts, provided they are acting within the scope of their employment. Here, Ioven admitted in his complaint that Nestel acted within the scope of his employment when he made the statements in the Bulletin. As such, the trial court properly concluded that Nestel is protected by immunity,” Friedman said.

Finally, Ioven claimed SEPTA was not entitled to sovereign immunity, citing Goldman v. Southeastern Pennsylvania Transportation Authority. But the Commonwealth Court did not hold with Ioven’s view.

“In Goldman, the Pennsylvania Supreme Court stated that SEPTA is not an arm of the state for purposes of sovereign immunity, under the Eleventh Amendment to the United States Constitution,” Friedman said. “Ioven contends that following Goldman, SEPTA is not an arm of the Commonwealth for purposes of the Sovereign Immunity Act. We disagree. State statutory immunity and Eleventh Amendment immunity are distinct concepts.”

“In this case, SEPTA and Nestel are protected by sovereign immunity and Ioven has failed to allege any exceptions thereto. Accordingly, we affirm,” Friedman concluded.

The plaintiff is represented by Joseph S. Oxman of Oxman Goodstadt Kuritz, in Philadelphia.

The defendants are represented by Gaetan J. Alfano of Pietragallo Gordon Alfano Bosick & Raspanti and Sarah R. Goodman of Greenberg Traurig, both also in Philadelphia.

Commonwealth Court of Pennsylvania case 543 C.D. 2016

Philadelphia County Court of Common Pleas case 150501425

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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