On Appeal from the United States District Court for the Western District of Pennsylvania. Originally Submitted Under Third Circuit Rule 12(6) June 22, 1988. Previously[Table].
Gibbons, Chief Judge, Higginbotham, Circuit Judge and Jane R. Roth,*fn* District Judge.
The City of New Kensington, Pennsylvania, and Sergeant William Dlubak, a police officer, appealed from a judgment against them and in favor of the Estate of Douglas Powdrill, for Powdrill's wrongful death. The case was tried to a jury which found in favor of the plaintiffs on liability. A separate trial was held on damages, and a separate jury returned a verdict of $65,899.00. Judgment was entered against the City of New Kensington and against Sergeant Dlubak in his official capacity. This court affirmed on August 18, 1988. Thereafter the United States Supreme Court granted petitions for certiorari filed on behalf of these defendants, vacated this court's judgment, and remanded the case for further consideration in light of its opinion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 103 L. Ed. 2d 249, 109 S. Ct. 998 (1989). The defendants contend that DeShaney compels the conclusion that their motion for a judgment notwithstanding the verdict should have been granted.
In reviewing the denial of a motion for judgment notwithstanding the verdict our review is plenary. We must determine whether, viewing the evidence most favorably for the verdict winner, it is sufficient as a matter of law to support the liability judgment. That evidence discloses that Douglas Powdrill died on November 10, 1982 from injuries received during a severe beating which took place in the Cash Club, an establishment located in New Kensington.
The Cash Club on November 10, 1982 was a private club at which alcoholic beverages were sold, and which was owned by Charles "Pope" Flenory, who had recently retired from the New Kensington Police Department after eighteen years of service, and who enjoyed a reputation for violence. Shortly before November 10, 1982 the Cash Club was burglarized, and some of the disc jockey's records were taken. Flenory called the New Kensington police and asked Sergeant Dlubak, with whom he had served on the police force, to come to the club. Before Dlubak arrived, however, Flenory and one of the disc jockeys began to interrogate Douglas Powdrill about the burglary. Powdrill, who was a casual employee of the club, was severely beaten.
When Sergeant Dlubak arrived at the club in response to Flenory's request, he also interrogated Powdrill. Powdrill denied participation in the burglary, and mentioned that he had actually informed the club manager, Mrs. Yolanda, about it. Dlubak instructed Powdrill to remain at the club while he went to question Mrs. Yolanda at her apartment. Dlubak returned to the club. His testimony about the scene on his return was as follows:
Q. Was Mr. Powdrill at any time pleading?
A. No, sir, he was sort of -- I wouldn't call it pleading. I would say he was trying to convince Mr. Flenory that he had nothing to do with it, and he was going to help him find out who did it to clear his name.
Q. Are you sure he wasn't pleading with you Mr. Flenory?
A. He was pleading for Mr. Flenory in a sense for he wanted Mr. Flenory to believe him that is the impression I got.