defense only if the employee is sued and it is alleged that the employee was acting within the scope of his employment. These two prerequisites must be satisfied concurrently. The state plaintiffs' allegation that the teachers were acting within the scope of their employment was made in the context of a suit against the School District. At the time no action was pending against the teachers. When the School District brought the teachers in as additional defendants, it charged that they had acted outside the scope of their employment. Neither the state plaintiffs' original complaint nor the School District's complaint against the teachers satisfied the two conjunctive requirements of § 303(a).
Pa. R. Civ. P. 2255(d) provides: "The plaintiff shall recover from an additional defendant found liable to him . . . as though such additional defendant had been joined as a defendant and duly served and the initial pleading of the plaintiff had averred such liability." Under this rule, the allegations in an additional complaint are incorporated into the original complaint. Incollingo v. Ewing, 444 Pa. 263, 291, 282 A.2d 206, 221, 444 Pa. 299 (1971). The School District's complaint against the teachers therefore gave the state plaintiffs an additional, but alternative, ground for recovery: Plaintiffs could recover against the School District if the teachers acted within the scope of their employment, or they could recover against the teachers if the teachers acted outside the scope of their employment. No party has attempted to recover from the teachers for acts within the scope of their employment. Since the prerequisites of § 303(a) have not been satisfied, § 303(b) applies. Under § 303(b), the School District need not provide for its employees' defense unless or until a court determines that they were, or reasonably believed they were, acting within the scope of their employment.
This result is consistent with the general design of the Political Subdivision Tort Claims Act. The statute gives extensive protection to political subdivision employees when they act within the scope of their employment. For instance, such employees are immune from tort liability to the same extent as their employer. 53 P.S. § 5311.301 (current version at 42 Pa. C.S.A. § 8545). If an employee is found liable for acts within his authority, his employer must reimburse him for the amount of any judgment against him. Id. § 5311.304 (current version at 42 Pa. C.S.A. § 8548). Section 303 provides employees with an additional benefit: If they are sued for acts specifically alleged to be within the scope of their employment, their employer must also provide for their defense. If the allegation is proved, the political subdivision must pay the amount of the ultimate judgment. The legislature apparently made a policy decision that the political subdivision should be involved in such suits from the outset. Under the statute, therefore, the employer must pay for the defense and, in return, may control litigation strategy. Id. § 5311.303 (current version at 42 Pa. C.S.A. § 8547).
When a complaint against an employee avers that he acted outside the scope of his employment, the analysis is different. If the allegation is proved, the employer will have no obligation to indemnify the employee. The employee is therefore not entitled to an up-front payment of the costs of his defense. This result is not affected by the fact that the state plaintiffs alleged, in support of an alternative theory of recovery against a different party, that the employees did act within their authority. If the School District were still a party in the state lawsuits and the plaintiffs' allegations had prevailed, plaintiffs would have recovered against the School District. The state trial court has held that the School District is immune from liability in the underlying actions. If this ruling is upheld, the teachers should also be found immune if they acted within the scope of their employment. 53 P.S. § 5311.301 (current version at 42 Pa. C.S.A. § 8545).
Thus, the only viable claims remaining against the teachers are the School District's allegations, incorporated in the state plaintiffs' complaints, that they acted outside their employment. If these allegations prevail, the teachers will be liable and the School District will have no obligation to indemnify them. Under the statutory scheme, therefore, the School District should not be forced to pay the teachers' legal costs at this time. Of course, if the state court ultimately determines that the teachers were, or reasonably believed that they were, acting within the scope of their employment, the School District will be obliged to reimburse the costs of the teachers' defense.
The allegation required by § 303(a) has not been made in the context of a suit against the teachers. The School District is thus not required to provide the teachers with legal assistance in advance of a court determination that the teachers acted within the scope of their employment. Accordingly, a declaratory judgment will be entered in favor of the School District.
This 27th day of December, 1984, it is
ORDERED that a declaratory judgment is entered in favor of defendant The School District of Philadelphia and against plaintiff Atlanta International Insurance Company, as follows:
The School District is not liable for the costs of defending Richard Donahue and James Slaughter in Davis v. Holiday Inns, Inc., No. 3075 (C.P. Philadelphia County), unless or until there is a judicial determination that Donahue and Slaughter acted within the scope of their employment.