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MOWRY MIKE v. BOROUGH ALIQUIPPA (07/11/80)

filed: July 11, 1980.

MOWRY MIKE
v.
BOROUGH OF ALIQUIPPA, A MUNICIPAL CORPORATION, APPELLANT



No. 183 April Term, 1979, Appeal from the Judgment of the Court of Common Pleas of Beaver County, Civil Action-Law - Trespass, No. 701 of 1974.

COUNSEL

Richard J. Mills, Pittsburgh, for appellant.

John A. Conte, Conway, for appellee.

Price, Hester and Cavanaugh, JJ.

Author: Hester

[ 279 Pa. Super. Page 385]

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

[ 279 Pa. Super. Page 386]

    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, "I am going to get you. I'll show you who has power around here. You are only an Aliquippa policeman." 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, "I told you I would get

[ 279 Pa. Super. Page 387]

    you. And I am going to take care of you. I am big, bad Joe." 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,*fn1 while Mike instituted the instant trespass action, alleging that the Borough of Aliquippa, by permitting ...


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