Mike v. Borough of Aliquippa
| Decision Date | 11 July 1980 |
| Citation | 279 Pa.Super. 382,421 A.2d 251 |
| Parties | Mowry MIKE v. BOROUGH OF ALIQUIPPA, a Municipal Corporation, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Nov. 14, 1979.
Richard J. Mills, Pittsburgh, for appellant.
John A. Conte, Conway, for appellee.
Before PRICE HESTER and CAVANAUGH, JJ.
This trespass action arises from a brutal beating sustained by appellee Mowry Mike at the hands of fellow employees in the early morning hours of May 16, 1972. Mike sued his employer, the appellant Borough of Aliquippa, charging the Borough with negligence in failing to provide Mike with a safe place to work. Following a five day jury trial, a verdict for appellee Mike in the amount of $188,000.00 was returned. The Borough's motions for a new trial and for judgment n. o v. were refused by the court en banc below and this appeal followed.
The unusual series of events leading to this litigation may be best summarized as follows. On the evening of May 14, 1972 appellee Mike was employed as a police officer by the Borough of Aliquippa and was on routine patrol with his partner, Officer Di Benedetto. A radio dispatch directed the pair to Constitution Boulevard to investigate a report of two stray horses roaming in the street. When they arrived on the scene, the officers attempted to guide the horses to safety, using their flashers and dome light to warn oncoming motorists. Suddenly, a speeding car, ignoring all warnings, raced along the road, striking one of the horses and then continued off into the night, but not before the officers recorded the automobile's license number. It was later discovered that the car was registered to Hopewell Township Deputy Constable Joseph Bagalini.
The following evening, appellee Mike and Di Benedetto, on duty, encountered Bagalini at the Aliquippa Eat-n-Park, where Bagalini was a sometime private security guard. Mike inquired of Bagalini whether he intended to file an accident report in connection with the horse incident, and Bagalini responded that he had no such intention. Mike then requested Bagalini's identification for the purpose of issuing a citation. At this point, Bagalini began to villify the officers, criticizing the manner in which they had handled the incident of the stray horses. A short scuffle ensued, following which Bagalini was arrested and charged with assaulting a police officer. During the trip to the station house and later at the arraignment before Magistrate Marovich, Bagalini hurled a steady stream of insults, threats, vile abuse, and epithets against Mike, declaring, R.R. 218a. Following arraignment, Bagalini was released on his own recognizance.
Later that evening, Constable Bagalini appeared at the office of Magistrate Dennis Cronin to secure a warrant for the arrest of appellee Mike for assault and battery. Accompanied by fellow constables Ray Dushac and Dennis Polochak, Bagalini confronted Mike with the warrant at the Aliquippa police station. In the presence of assistant police chief Clifford Morris, the warrant was served upon Mike and he began to remove his gun and belt in accord with police procedures. At this point, Mike was struck a severe blow on the head, sending him back against the wall where Bagalini and Dushac proceeded to pummel him about the head with blackjacks. Mike was handcuffed, escorted outside to Dushac's car, and driven to the Rochester Hospital. En route, Bagalini continued to strike and beat the appellee, shouting further insults and epithets, stating, R.R. 172a, 174a. When the party arrived at the hospital, Bagalini dragged Mike by the handcuff chain down a 75 foot corridor to the emergency room. Mike, bloodied and barely conscious, refused treatment and demanded to be taken to Aliquippa Hospital. He was then driven to Magistrate Cronin's for arraignment, whereupon Mike's attorney arrived and persuaded the constables to take him to the hospital.
Appellee's severe injuries required 12 days of hospitalization and a nine month dental reconstruction program. After a year and one-half of convalescence, he returned to the police force, but resigned one year later. Bagalini and Dushac were convicted of various criminal offenses, [1] while Mike instituted the instant trespass action, alleging that the Borough of Aliquippa, by permitting him to become the victim of this violent beating, had failed to provide him with a safe working place.
Both below and on appeal, the appellant Borough has contended that the instant proceeding is within the exclusive purview of the Workmen's Compensation Act [2] and that this common law action was thus improperly brought. The Act provides the workman a measure of protection against all injuries "arising in the course of his employment and related thereto." Sec. 301(c), (77 P.S. § 411). "By virtue of the Act, an employee's common law right to damages for injuries suffered in the course of his employment as a result of his employer's negligence is completely surrendered in exchange for the exclusive statutory right of the employee to compensation for all such injuries, regardless of negligence, and the employer's liability as a tortfeasor under the law of negligence for injuries to his employee is abrogated." Socha v. Metz, 385 Pa. 632, 637, 123 A.2d 837, 839-40 (1956); Turner Construction Co. v. Hebner, 276 Pa.Super. 341, 419 A.2d 488 (1980). The Act provides an important exception to this rule, however:
The term "injury arising in the course of his employment", as used in this article, shall not include an injury caused by an act of a third person intended to injure the employe because of reasons personal to him, and not directed against him as an employe or because of his employment. § 301(c), supra.
This definition specifically excludes from the Act's coverage an assault or attack by third persons because of personal animosity against the employee and which does not result because of the relationship between employer and employee. "In such a case, the plaintiff is permitted to pursue his common law remedy." Dolan v. Linton's Lunch, 397 Pa. 114, 125, 152 A.2d 887, 893 (1959); McBride v. Hershey Chocolate Corp., 200 Pa.Super. 347, 188 A.2d 775 (1963); Workmen's Compensation App. Bd. v. Borough of Plum, 20 Pa.Cmwlth. 35, 340 A.2d 637 (1975). Normally, when an employee is injured in an attack by a fellow employee, there is a rebuttable presumption that the claimant is covered by the Act and the one claiming otherwise bears the burden of showing an intention to injure owing to reasons personal to the assailant. O'Rourke v. O'Rourke, 278 Pa. 52, 122 A. 172 (1923); McBride, supra; U.S. Steel Corp. v. Workmen's Compensation App. Bd., 10 Pa.Cmwlth. 247, 309 A.2d 842 (1973). In the instant case, the court submitted to the jury the issue of whether the reasons for the attack were "purely personal", McBride, and not directed against Officer Mike as an employee or because of his employment. [3] The jury obviously found that the motive for the attack was personal, but it is the Borough's contention that there is insufficient evidence to support this finding. In such a posture, our scope of review on appeal is distinctly delimited:
In reviewing the trial court's denial of appellant's motion for judgment n. o. v., the evidence, together with all reasonable inferences therefrom, must be viewed in the light most favorable to the verdict winners. Flickinger Estate v. Ritsky, 452 Pa. 69, 305 A.2d 40 (1973); Kresovich v. Fitzsimmons, 439 Pa. 10, 264 A.2d 585 (1970); Cerino v. Philadelphia, 435 Pa. 355, 257 A.2d 571 (1969). All conflicts in the evidence, moreover, must be resolved in favor of the prevailing party. Moyer v. Ford Motor Co., 205 Pa.Super. 384, 209 A.2d 43 (1965); Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970); Axilbund v. McAllister, 407 Pa. 46, 180 A.2d 244 (1962). However, where the evidence is insufficient to sustain a verdict against the losing party, a court will enter judgment n. o. v. in favor of the appellant despite a verdict to the contrary. Kolb v. Hess, 227 Pa.Super. 603, 323 A.2d 217 (1974); Eldridge v. Melcher, 226 Pa.Super. 381, 313 A.2d 750 (1973).
Szumski v. Lehman Homes, Inc., 267 Pa.Super. 478, 406 A.2d 1142, 1143 (1979); Kiely v. SEPTA, 264 Pa.Super. 578, 401 A.2d 366 (1979). So viewed, the instant record reveals the following:
The friction between appellee Mike and the three constables, Bagalini Dushac, and Polochak, had apparently been brewing for several months prior to the May 16, 1972 beating. Mike was very concerned that the constables were abusing their authority and were at times infringing upon the powers of the Aliquippa police and upon the rights of private citizens. More specifically, it appears that the constables wore uniforms and were frequently in the police station; that they had in their personal cars sirens, "Kojack" lights, and police radio transmitters; that they sought out citizens for traffic violations; that they had a propensity for beating citizens with sticks and for using excessive force; and that they would frequently interfere with police work in the streets. Officer Mike made several reports to the Borough Council concerning these matters, both privately and publicly, imploring Council members to take corrective measures against the constables' abuse of powers, all to no avail. Mike was in contact with the constables, particularly Bagalini, almost daily and each such incident referred to in the record was fraught with tension, confrontation, and sometimes mutual criticism. Animosities reached the breaking point on the evening/morning of May 15/16...
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