Section 39.2. Civil cases involving unintentional conduct

When a Commonwealth official or employe is sued in his official or individual capacity for alleged negligence or other unintentional misconduct occurring while in the scope of employment, the Commonwealth will provide a defense in all cases. If an insurance policy purchased by the Commonwealth affords coverage, the insurance company will undertake the defense with an attorney of its choosing at its expense. If there is no insurance coverage, the Commonwealth will provide an attorney to defend the official or employe. The Commonwealth will indemnify the defendant for the expense of a judgment against him in this case. The defendant may engage his own attorney but any attorneys fees will not be reimbursed by the Commonwealth and indemnification will be in the sole discretion of the General Counsel.

The provisions of this § 39.2 amended March 8, 1996, effective March 9, 1996, 26 Pa.B. 993. Immediately preceding text appears at serial pages (196930) and (193847).

Notation

Notes of Decisions

Executive Board regulations do create a conditional entitlement in State employes to reimbursement for counsel fee. Burroughs v. Zimmerman, 503 A.2d 1014 (Pa. Cmwlth. 1986).

The provisions of § § 39.1—39.3 are substantive with the force and effect of law, rather than policy statements for two reasons. First the provisions in § § 39.1—39.3 are substantive because they create a controlling standard of conduct. Second, the provisions in § § 39.1—39.3 are substantive because § § 39.1—39.3 cannot be converted into discretionary rules, even though the benefits of the regulation may be dependent on the determination of the Office of General Counsel. Dep’t of Corrections v. Pennsylvania State Corrections Officers Ass’n, 12 A.3d 346, 360 (Pa. 2011).

Cross References

This section cited in 4 Pa. Code § 39.13 (relating to civil cases).