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IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Earl B. Lamar,
:
Appellant

:

:

v.

: No. 1009 C.D. 2003

:
School District of Pittsburgh
: Argued: October 7, 2003
BEFORE: HONORABLE DAN PELLEGRINI, Judge

HONORABLE RENÉE L. COHN, Judge

HONORABLE JESS S. JIULIANTE, Senior Judge
OPINION BY
SENIOR JUDGE JIULIANTE

FILED: November 3, 2003

Earl Lamar (Lamar) appeals from the April 15, 2003 order of the
Court of Common Pleas of Allegheny County (trial court) that granted the motion
for judgment on the pleadings filed by the School District of Pittsburgh (School
District) and denied Lamar's cross-motion for judgment on the pleadings. We
affirm.

Lamar is employed as the principal of McNaugher Education Center,
which is located within the School District. In 1999, a female associate
(Complainant) accused Lamar of sexually harassing her. The School District
suspended Lamar pending an investigation into Complainant's claim and, upon
conclusion of that investigation, the School District's Superintendent
recommended that Lamar be dismissed from his position. After an administrative

disciplinary hearing,1 however, the School District's Board of Directors found in
favor of Lamar. Accordingly, Lamar was reinstated to his position as principal
with full back pay for the period in which he was suspended without pay. At the
administrative disciplinary hearing, Lamar was represented by Attorney Eugene
Lincoln.

Thereafter, on March 24, 2000, Complainant filed a federal civil
lawsuit in the Western District of Pennsylvania against the School District and
Lamar alleging that Lamar sexually harassed her. Although the School District
employed Attorney Anthony Sanchez to defend against the civil suit, Lamar once
again was represented by Attorney Lincoln. Notwithstanding, there were
indications that both Attorneys Sanchez and Lincoln filed pleadings on behalf of
Lamar.

Complainant and the School District ultimately settled the federal
civil lawsuit. Releases were executed by Complainant and the School District.
Under the terms of settlement, Lamar was not required to make any payment to
Complainant.

On October 29, 2002, Lamar filed a complaint with the trial court
seeking reimbursement of attorney's fees incurred in defending against the
administrative disciplinary hearing before the School District's Board of Directors

1 Section 1122 of the Public School Code of 1949, Act of March 10, 1949, P.L. 30, as
amended, 24 P.S. §§11-1122, provides that an employee may be terminated for, inter alia,
immorality, incompetency, intemperance, cruelty, persistent negligence and mental derangement.
Where a full-time teacher is suspended from a position in which he has a property interest, he is
entitled to due process. Cf. Kinniry v. Abington Sch. Dist., 673 A.2d 429 (Pa. Cmwlth. 1996)
(minimum due process requirements demand that a litigant have, at some stage of the
proceeding, a hearing before an impartial factfinder).
2

and the federal civil lawsuit filed by Complainant. Lamar's causes of action
sought to invoke Sections 8541-8564 of the Judicial Code (Code).2

The School District filed preliminary objections to Lamar's
complaint. The preliminary objections sought dismissal of the complaint by
asserting that Lamar failed to state a cause of action where (1) the School District
supplied Lamar with a defense in the federal civil lawsuit, (2) no damages were
assessed against Lamar in the administrative disciplinary hearing or the federal
lawsuit, (3) Lamar did not request the School District to provide him with a
defense in writing, as required by Section 8547 of the Code, 42 Pa. C.S. §8547,
and (4), the School District was only required to provide Lamar with a defense for
actions grounded in negligence; however, the allegations of sexual harassment
were based on intentional and willful misconduct.

Lamar filed preliminary objections to the School District's
preliminary objections. By order dated January 16, 2003, the trial court overruled
both sets of preliminary objections. Shortly thereafter, both parties filed motions
for judgment on the pleadings. The trial court granted the School District's
motion, denied Lamar's motion, and dismissed the complaint with prejudice. This
appeal followed.3

2 42 Pa. C.S. §§8541-8564, commonly referred to as the Political Subdivision Tort
Claims Act.
3 When reviewing a trial court's decision to grant a motion for judgment on the pleadings,
we must confine our consideration to the pleadings filed, accepting as true all well-pleaded
statements of fact, admissions and any other documents properly attached to the pleadings
presented by the party against whom judgment is sought. Glover v. Southeastern Pennsylvania
Transp. Auth., 794 A.2d 410 (Pa. Cmwlth. 2002). Judgment on the pleadings should only be
sustained where the movant's right to succeed is certain and the case is so free from doubt that a
trial would be a fruitless exercise. Id.
3

Because Lamar insists that his case is governed by Section 8548(a) of
the Code, 42 Pa. C.S. §8548(a), we will address that argument first. Section
8548(a) 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 of the suit. (Emphasis added.)

In support of his position, Lamar directs our attention to Wiehagen v.
Borough of N. Braddock, 527 Pa. 517, 594 A.2d 303 (1991). In that case,
Wiehagen was employed as a borough police officer when he arrested Arthur Isles
for public intoxication. While Wiehagen was removing Isles' belt, Isles attempted
to strike Wiehagen, whereupon Wiehagen knocked Isles to the floor. Isles filed a
civil rights action against the Borough of North Braddock (Borough) and
Wiehagen.

The matter was partially concluded by summary judgment in favor of
the Borough on the basis that Wiehagen's actions did not constitute approved or
official state or local action. As against Wiehagen, a jury returned a verdict in
favor of Isles in the amount of $7,500. In addition, the federal court ordered
Wiehagen to reimburse Isles attorney's fees, costs and expenses. The total
judgment entered in favor of Isles and against Wiehagen was $21,110.58.

Thereafter, Wiehagen filed suit seeking indemnification from the
Borough pursuant to Section 8548(a) of the Code. Although the court of common
4

pleas found that Wiehagen was entitled to indemnification, the court limited
indemnification to the compensatory award of $7,500.

In affirming this Court's decision reversing the court of common
pleas, the Supreme Court noted that Section 8548 clearly and unambiguously
provides that a local agency shall indemnify an employee for any judgment
rendered against an employee acting within the scope of his employment,
regardless of whether that judgment resulted from a state or federal cause of action.
The Supreme Court then went on to address whether attorney's fees, costs and
expenses were to be included in the term "indemnification."

In concluding that Section 8548(a) entitled an employee to
indemnification of attorney's fees, costs and expenses, the Supreme Court noted
that under Section 8547 of the Code, 42 Pa. C.S. §8547, the local agency was
required to provide an employee with a defense or reimburse the employee for
reasonable expenses incurred in defending an action. By the terms of Section
8547, the employee is not liable for any expenses or attorney's fees incurred in
defending an action. The Supreme Court thus reasoned that since the Legislature
provided for legal assistance to the employee and shielded the employee from
payment of any judgment entered, reasonable attorney's fees, costs and expenses
that were reduced to judgment had to be indemnified.

The central flaw in Lamar's application of Wiehagen to the instant
matter is that in the federal lawsuit by Complainant, it was not "judicially
determined" that Lamar's actions caused injury to Complainant. The lawsuit was
disposed by way of settlement, the terms of which are not pleaded in his complaint.
Thus, Lamar did not allege in his complaint that he was judicially determined to be
liable for Complainant's injuries. Moreover, and perhaps more importantly, no
judgment was entered against Lamar in that lawsuit. The settlement reached
between Complainant and the School District limited payment of the settlement by
5

School District and did not include Lamar. Lamar made no payment to
Complainant. Thus, there is nothing for which Lamar is entitled to be indemnified.
Under Wiehagen, attorney's fees, costs and expenses are payable when they are
part of the judgment entered against a local agency employee. Because there was
no judgment entered against Lamar, Section 8548 of the Code is simply
inapplicable to his claim for reimbursement4 of attorney's fees.5

Although Lamar denies that Section 8547 of the Code is applicable to
the instant action, the trial court granted the School District's motion for judgment
on the pleadings inasmuch as Lamar failed to comply with the requirements of this
Section. Section 8547(a) appears as follows:
(a) Mandatory provision of legal assistance 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 it is alleged that the act of the
employee which gave rise to the claim was within the
scope of the office or duties of the employee, the local
agency shall, upon the written request of the employee,

4 Lamar engages in a semantics battle, contenting that he is not seeking "reimbursement"
of attorney's fees, but rather "indemnification." Indemnification is defined as "[t]he action of
compensating for loss or damage sustained." BLACK'S LAW DICTIONARY 772 (7th Ed. 1999).
The term "indemnity" is defined as:

1. A duty to make good any loss, damage, or liability
incurred by another. 2. The right of an injured party to claim
reimbursement for its loss, damage, or liability from a person who
has such a duty. 3. Reimbursement or compensation for loss,
damage, or liability in tort; [especially], the right of a party who is
secondarily liable to recover from the party who is primarily liable
for reimbursement of expenditures paid to a third party for injuries
resulting from a violation of a common-law duty. (Emphasis
added.)
Id.
5 Section 8548 is likewise inapplicable to Lamar's request for reimbursement of
attorney's fees that he incurred as a result of the administrative disciplinary hearing. Section
8548 is implicated where there is an action for damages, which was not the nature of the
administrative disciplinary hearing. Similarly, there was no judgment entered against Lamar
determining that his actions caused damages to another.
6

defend the action, unless or until there is a judicial
determination that such act was not within the scope of
the office or duties of the employee.

42 Pa. C.S. §8547(a).

In arguing that Section 8547(a) of the Code is inapplicable, Lamar
contends that (1) although the trial court concluded that Attorney Sanchez
represented Lamar in the federal civil lawsuit, the School District did not make an
offer of representation, he did not reject any such offer, and he was without
knowledge of Attorney Sanchez's actions on his behalf; (2) a conflict of interest
existed in Attorney Sanchez's representation of Lamar, if it occurred; and (3) at the
very least, the appearance of impropriety existed where the School District
attempted to remove Lamar from his position and later allegedly provided him
with representation against the federal civil lawsuit.

Regardless of Lamar's allegations, we must agree with the trial court
and the School District that Dixon v. Cameron County Sch. Dist., 802 A.2d 696
(Pa. Cmwlth. 2002) is controlling. Dixon was serving as a director of the Cameron
County School District when she became the defendant in two quo warranto
actions challenging her eligibility to serve on the board after she moved outside the
region of the school district from which she was elected.

While the matters were pending, Dixon's counsel sent a letter to the
school district advising it that Dixon had hired counsel to defend the lawsuits and
that she would present the costs for her representation to the school district under
the Code. The letter also served to inform the school district of Dixon's claim for
indemnification.

Thereafter, the two quo warranto actions were withdrawn after Dixon
presented evidence that she had moved back into the region of the school district
from which she was elected. Dixon then filed suit against the school district
7

seeking payment of $2,950 as reimbursement for her costs incurred in defending
the quo warranto actions.

The school district filed preliminary objections raising both lack of
specificity and failure to state a claim upon which relief could be granted. The
common pleas court granted the preliminary objections and Dixon appealed.

In reviewing Section 8547 of the Code, we noted that employees of
local agencies are entitled to mandatory provision of legal services where the
employee becomes the defendant in a lawsuit governed by the Code, subject to
certain prerequisites. First, the employee must be sued for damages on account of
an injury to a person or property and, second, the employee must make a written
request to the local agency to defend the action on the employee's behalf.
In
Dixon, the common pleas court sustained the school district's
preliminary objections because Dixon failed to allege that she had made a written
request to the school district for legal representation. In the present matter, Lamar
likewise failed to allege in his complaint against the School District that he made a
written request for representation in defense of the federal civil lawsuit.
Notwithstanding,
Lamar
further
claims that because Attorney
Sanchez's representation of him in the federal civil lawsuit would have been a
conflict of interest, he was entitled to hire separate counsel and seek
indemnification from the School District. As we noted in Dixon, however, the
local agency employee cannot usurp the local agency's rights with respect to the
employee's defense.

Specifically, Section 8547(c) of the Code, 42 Pa. C.S. §8547(c),
provides that where the local agency defends an action against a local agency
employee, the local agency assumes exclusive control of the defense of the
employee and the employee must cooperate fully with the defense. If legal counsel
provided by the local agency determines that the interests of the local agency and
8

the employee are in conflict, the local agency must obtain permission from the
employee for continued representation or supply independent representation. Id.

Thus, even assuming that Lamar had made a written request for
representation pursuant to Section 8547(a) of the Code, Attorney Sanchez, who
represented the School District, had the sole discretion in determining whether his
representation of both the School District and Lamar would result in a conflict of
interest. Lamar engaged Attorney Lincoln without allowing the School District to
provide him with a defense under Section 8547. This was in violation of the Code.
As we stated in Dixon, "[t]here is simply no statutory provision for an employee to
make demand for payment of fees for litigation after the fees have been incurred
and before the employee requests a defense from the employer." Dixon, 802 A.2d
at 700.

Accordingly, because Lamar is not entitled to indemnification under
Section 8548 of the Code and because he did not make a written request for
representation as required by Section 8547(a) of the Code, we conclude that the
trail court did not err in granting the School District's motion for judgment on the
pleadings. The order of the trial court is affirmed.6

JESS S. JIULIANTE, Senior Judge

6 In his brief to this Court, Lamar sets forth 20 statements that he considers to be mixed
questions of law and fact, which would preclude entry of judgment on the pleadings in favor of
the School District. When reviewing the trial court's decision to grant a motion for judgment on
the pleadings, we are limited to reviewing the pleadings and determining whether the law as
applied to the pleadings clearly entitles the movant to judgment. Glover. As Lamar's complaint
against the School District was grounded in the Code and we agree with the trial court that the
Code does not permit recovery in this case, Lamar's allegation of outstanding questions of fact
and law is without merit.
9

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Earl B. Lamar,
:
Appellant

:

:

v.

: No. 1009 C.D. 2003

:
School District of Pittsburgh
:

O R D E R

AND NOW, this 3rd day of November, 2003, the April 15, 2003 order
of the Court of Common Pleas of Allegheny County is AFFIRMED.

JESS S. JIULIANTE, Senior Judge