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HENRY WIEHAGEN v. BOROUGH NORTH BRADDOCK (05/31/89)

decided: May 31, 1989.

HENRY WIEHAGEN, APPELLANT,
v.
BOROUGH OF NORTH BRADDOCK, APPELLEE. BOROUGH OF NORTH BRADDOCK, APPELLANT, V. HENRY WIEHAGEN, APPELLEE



Appeal from Common Pleas Court, Allegheny County; Honorable Eugene B. Strassburger, III, Judge.

COUNSEL

Ronald P. Koerner, Gatz, Cohen, Segal & Koerner, P.A., Pittsburgh, for appellant/appellee Henry Wiehagen.

John A. Bacharach, Girman & Bacharach, Pittsburgh, for appellee/appellant Borough of North Braddock.

Crumlish, Jr., President Judge, Colins, J., and Barbieri, Senior Judge.

Author: Barbieri

[ 126 Pa. Commw. Page 354]

Before the Court are cross-appeals from the order of the Court of Common Pleas of Allegheny County which held the Borough of North Braddock (Borough) liable to indemnify its employee Henry Wiehagen (Wiehagen) pursuant to Section 8548(a) of what is commonly known as the Political Subdivision Tort Claims Act (Act), 42 Pa.C.S. § 8548(a), for

[ 126 Pa. Commw. Page 355]

    compensatory damages assessed against Wiehagen in a federal 42 U.S.C. § 1983 action, but not liable to indemnify Wiehagen for costs, attorney fees and interest imposed in the same action. We reverse the trial court's denial of Wiehagen's post-trial exceptions and hold the Borough liable to indemnify Wiehagen for the full amount of the federal judgment.

Wiehagen was employed as a Borough policeman. On June 11, 1980, while on duty and in full uniform, Wiehagen arrested one Arthur Isles (Isles) for public intoxication and transported him to the Borough police station. At the station Isles took a swing at Wiehagen who responded by striking Isles and knocking him to the floor.

Isles subsequently brought a federal civil rights action under 42 U.S.C. § 1983 against both Wiehagen and the Borough. The Borough succeeded in being dismissed from the case on a motion for summary judgment on the theory that Wiehagen's action did not constitute approved or official state or local action. Wiehagen alone went to trial. The jury by special interrogatories found that Wiehagen acted "instinctively" but used more force on Isles than necessary. On March 10, 1983, the jury awarded Isles $7,500.00 in compensatory damages. Attorney fees, costs and expenses were also assessed against Wiehagen pursuant to § 1983 in the amount of $13,610.56. This amount was reduced to judgment. As of March 9, 1987, the total judgment with interest stood at $29,268.50. This judgment remains outstanding against Wiehagen to date.

On October 5, 1984, Wiehagen brought this instant action seeking indemnification against the Borough under § 8548(a) for payment of the federal judgment. Section 8548(a) states:

(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 ...


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