                                                NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
                     ___________

                        No. 11-2069
                        ___________

                    ROBERT K. DEE, JR.,
                                 Appellant
                           v.

              BOROUGH OF DUNMORE;
          BOROUGH OF DUNMORE COUNCIL;
    JOSEPH LOFTUS, individually and as Borough Manager;
 THOMAS HENNIGAN, JOSEPH TALUTTO, FRANK PADULA,
     LEONARD VERRASTRO, MICHAEL CUMMINGS,
             individually and as Councilman,

                        ____________

                         No. 11-2279
                        ____________

                    ROBERT K. DEE, JR.,

                              v.

              BOROUGH OF DUNMORE;
          BOROUGH OF DUNMORE COUNCIL;
    JOSEPH LOFTUS, individually and as Borough Manager;
 THOMAS HENNIGAN, JOSEPH TALUTTO, FRANK PADULA,
     LEONARD VERRASTRO, MICHAEL CUMMINGS,
             individually and as Councilman,
                                        Appellants

                        ___________


        On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                  (D.C. No. 3-05-cv-01342)
                       District Judge: Honorable A. Richard Caputo
                                        ___________

                                 Argued February 9, 2012

                  Before: SLOVITER, VANASKIE, Circuit Judges, and
                              POLLAK, ∗ District Judge

                                 (Filed : April 6, 2012)
                                       _________
Cynthia L. Pollick, Esq. (Argued)
The Employment Law Firm
363 Laurel Street
Pittston, PA l8640

      Attorney for Appellant, No. 11-2069
      Cross-Appellee No. 11-2279

Karoline Mehalchick, Esq. (Argued)
Oliver, Price & Rhodes
1212 South Abington Road
Clarks Summit, PA 18411

      Attorney for Appellees, No. 11-2069
      Cross-Appellants No. 11-2279
                                         ________

                                           OPINION
                                           _________

SLOVITER, Circuit Judge.

      Robert Dee, Assistant Fire Chief, filed suit under 42 U.S.C. § 1983 and various

state laws against the Borough of Dunmore, the Borough Manager, and five members of


      ∗
          The Honorable Louis H. Pollak, Senior Judge, United States District Court for
                                             2
the Borough Council (collectively “Borough”), alleging he was suspended without notice

by the Borough, based on its determination that Dee failed to complete two training

requirements. The jury awarded Dee $150,000 in compensatory damages and $6,000 in

punitive damages. At the Defendants’ request, the District Court granted a remittitur,

reducing the jury verdict from $150,000 to $50,000 and dismissing the punitive damage

award of $6,000. Dee rejected the remittitur and proceeded to the second jury trial

limited to the issue of compensatory damages. The second jury awarded Dee $47,500 in

compensatory damages. Dee appeals. The Borough cross-appeals the District Court’s

denial of its motion for judgment as a matter of law on Dee’s claim that his right to

procedural due process was violated.

                                             I.

                                       Background

       Dee became a firefighter for the Borough in 1987. In May 2005, Joseph Loftus,

the Borough Manager, began an investigation into the certification of all Borough

employees, including the members of the Fire Department. Loftus requested that Chief

Arnone (“Arnone”) of the Fire Department send him a memo outlining the necessary

qualifications and certifications for full-time work, and documentation on the full-time

staff who met those criteria.

       Arnone responded there was no indication that Dee had the requisite EMT training



the Eastern District of Pennsylvania, sitting by designation.
                                             3
or had attended State Fire Academy Training. After Loftus notified the members of the

Borough Council, they voted to remove Dee from the schedule with pay, pending a

hearing eight days later. 1 The Borough explained the reason for the immediate

suspension on the ground that its main concern was the protection and safety of the

firefighters, taxpayers and citizens. One council member, Joseph Talutto, stated that not

only was there a duty “to protect the town,” but the Borough Council also did not want

“to get blasted in the paper.” App. at 144-45. The suspension was publicized in the local

media.

         On July 6, 2005, at a later personnel hearing, the Borough Council was provided

with additional documentation and determined that Dee was in compliance with the

requirements. Council reinstated Dee to the schedule. Dee had not been suspended from

employment nor suffered any lapse in pay, other benefit or service time for seniority or

retirement date purposes.

         At trial in January 2010, the jury determined that Dee’s due process rights had

been violated because he was suspended without notice, explanation of the evidence

against him, or an opportunity to rebut the erroneous allegations that he was unfit to serve

as a firefighter after 18 years of service. The jury awarded Dee $150,000 in

compensatory damages and $6,000 in punitive damages ($1,000 against each individual



        The members of the Borough Council at the relevant time were Michael
         1


Cummings, Thomas Hennigan, Frank Padula, Joseph Talluto, Leonard Verrastro, Tim
Burke, and Paul J. Nardozzi.
                                               4
defendant).

       Following the trial, the Borough moved for a remittitur, which was granted by the

District Court who reduced the jury verdict from $150,000 to $50,000 and dismissed the

punitive damage award of $6,000. Dee rejected the remittitur and proceeded to a second

jury trial solely on the issue of compensatory damages. In his second jury trial, Dee was

awarded $47,500 in compensatory damages. Dee appeals and the Borough cross-

appeals. 2

                                              II.

                                         Discussion

                                              A.

       The use of a conditional remittitur is appropriate when the trial judge finds that a

decision of the jury is clearly unsupported or excessive. See Cortez v. Trans Union LLC,

617 F.3d 688, 715 (3d Cir. 2010) (citation omitted). This Court reviews the trial court’s

reduction of damages for abuse of discretion. Id. at 716. In this case, the District Court

reduced the jury award because it held that it was inconsistent with the evidence in the

case. It offered Dee the alternative of a new trial, which Dee accepted. See Hetzel v.

Prince William County, 523 U.S. 208, 211 (1998) (per curiam) (explaining that when a

trial court determines that the evidence does not support the jury’s general damages

award, it “has no authority . . . to enter an absolute judgment for any other sum than that


       2
           This Court has jurisdiction over both Dee’s appeal and the Borough’s cross-
                                              5
assessed by the jury” without allowing plaintiff the option of a new trial (citation

omitted)).

                                             B.

       “In general, the determination of compensatory damages is within the province of

the jury and is entitled to great deference.” Spence v .Bd. of Educ., 806 F.2d 1198, 1204

(3d Cir. 1986). However, “[t]he district judge is in the best position to evaluate the

evidence presented and determine whether or not the jury has come to a rationally based

conclusion.” Id. at 1201. Remittitur is utilized when the trial judge finds that a decision

of the jury is excessive or clearly unsupported by the evidence. Id.; see also Murray v.

Fairbanks Morse, 610 F.2d 149, 152 (3d Cir. 1979). The reduction may not be less than

the maximum amount that does not “shock the judicial conscience.” Evans v. Port Auth.

of N.Y. & N.J., 273 F.3d 346, 355 (3d Cir. 2001).

       The District Court relied on Glass v. Snellbaker, No. 05-1971 (JBS), 2008 WL

4371760 (D.N.J. Sept. 17, 2008), in determining that a remittitur was appropriate. See

Dee v. Borough of Dunmore, No. 05-CV-1342, 2010 WL 1626908, at *7 (M.D. Pa. April

21, 2010) (“Dee I”). In Glass, the plaintiff sought emotional distress damages under his

claim for first amendment retaliation after being transferred to a less prestigious

employment position as a result of a speech he made. Glass had experienced elevated

blood pressure due to stress, but he continued to work after the transfer, suffered no



appeal pursuant to 28 U.S.C. § 1291.
                                              6
immediate financial stress because his salary and benefits remained unchanged and,

despite his concerns, there was no evidence that his reputation in the police force was

diminished. Glass, 2008 WL 4371760, at *1-3, *20-22. Plaintiff’s testimony about his

daily humiliation, ostracism, and emotional distress over a two-year period, as a

consequence of the defendant’s retaliation was sufficient to justify a compensatory

damage award of $50,000, reduced from the original jury verdict of $250,000. Id. at *23.

Furthermore, the court noted that in cases of emotional harm not arising from

discrimination that resulted in an award of over $50,000 for non-economic damages, the

plaintiff usually suffered prolonged physical symptoms, or sought medical or

psychological treatment. Id. at *22.

       In this case, there is no evidence that Dee suffers long term or lasting effects from

the suspension. Similar to the plaintiff in Glass, Dee presented evidence about his

humiliation, stress, and the elevated blood pressure he experienced after the suspension.

Also similar to Glass, Dee suffered no loss of benefits, seniority or pay, and there is no

evidence of any loss of reputation among his peers. Accordingly, under the reasoning in

Glass, an award of $50,000 was the highest possible recovery that would not “shock the

judicial conscience.” Id. at *6; see also Wade v. Orange County Sheriff’s Office, 844

F.2d 951, 955 (2d Cir. 1988) (upholding award of $50,000 for an employee who had been

subject to racially motivated humiliation at work, including public embarrassment due to

a publication in newspaper); Niebur v. Town of Cicero, 212 F. Supp. 2d 790, 818, 821-22


                                              7
(N.D. Ill. 2002) (upholding $50,000 each in emotional distress damages awarded to a

deputy police chief and police chief for violations of their due process rights arising from

suspension, termination, and publication of false charges).

       For his part, Dee calls our attention to Gagliardo v. Connaught Labs. Inc., 311

F.3d 565 (3d Cir. 2002), where we did not disturb a jury’s verdict of $1.55 million for

pain and suffering on a discrimination employment claim. But Gagliardo, unlike Dee,

had life-long changes of a mental trauma, “transforming Gagliardo from a happy and

confident person to one who was withdrawn and indecisive.” Id. at 574. Dee also cites

Evans, an employment discrimination case where we affirmed a remittitur of $375,000

for emotional distress for plaintiff who suffered from chest pains and shortness of breath,

was sent to the medical department on four different occasions, had to start taking blood

pressure medication, and was consistently moody and irritable, which altered her

relationship with her husband and children. 273 F.3d at 352 n.5, 356. Those plaintiffs

had prolonged symptoms whereas Dee did not suffer from life-altering or long term

distress but only temporary elevated blood pressure which returned to a normal range

within days and Dee resumed his employment as Assistant Fire Chief.

       We reject Dee’s claim that the District Court established an arbitrary cap on

emotional distress damages. Instead, the second jury’s decision to award Dee $47,500 in

damages supports the District Court’s conclusion based on its analysis of cases involving

similar claims and damages. Dee I, 2010 WL 1626908, at *6-8. The District Court


                                             8
recognized that Dee suffered from emotional distress and cited to his elevated blood

pressure for a few days after his suspension but noted that it was not long term. Id. at *8.

The District Court did not abuse its discretion when it made a discretionary decision to

reduce the jury verdict from $150,000 to $50,000.

                                              C.

       Dee also appeals the District Court’s decision to vacate the punitive damage award

of $6,000 at the end of the jury trial. Punitive damages may be awarded in a §1983 action

when the defendant’s conduct is “shown to be motivated by evil motive or intent, or when

it involves reckless or callous indifference to the federally protected rights of others.”

Alexander v. Riga, 208 F.3d 419, 430-431 (3d. Cir. 2000) (quoting Smith v. Wade, 461

U.S. 30, 56 (1983)). The determination of whether or not there is sufficient evidence to

support an award of punitive damages is a question of law which this court reviews de

novo. Id. at 430. In evaluating the reasonableness of a punitive damages award, the

Supreme Court has noted as relevant the following three factors: (1) the degree of

reprehensibility of the defendant’s conduct; (2) the disparity between the actual or

potential harm suffered by the plaintiff and the punitive damages award; and (3) the

difference between the punitive damages awarded and the civil penalties authorized or

imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 580, 583

(1996). The Court has recognized that the degree of reprehensibility of the defendant’s

conduct is the “most important indicium” of the constitutionality of a punitive damages


                                              9
award. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419 (2003) (citing

Gore, 517 U.S. at 575). In measuring the degree of reprehensibility, we are to consider:

whether the harm caused was physical as opposed to economic; whether the defendant’s

actions evinced indifference to or reckless disregard for the health or safety of others; the

financial vulnerability of the victim; whether the conduct was repetitive or isolated; and

whether the harm was the result of intentional malice, trickery, deceit, or mere accident.

Id. The absence of all of these factors renders suspect a punitive damages award, but the

existence of any one is not necessarily sufficient. Id.

       In Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 834 (3d Cir. 1994),

this court affirmed the award of punitive damages when evidence showed that the

plaintiff-employee was discharged in retaliation for writing audit reports that criticized

authority and officials of the Philadelphia Housing Authority. In Springer v. Henry, 435

F.3d 268, 282 (3d Cir. 2006), we upheld an award for punitive damages when plaintiff

was singled out for intentional disparate treatment. Unlike Feldman and Springer, the

instant case presents no evidence of retaliation, intentional disparate treatment or any

other kind of callous, intentional or malicious conduct that would make punitive damages

appropriate.

       Applying the relevant factors, we will uphold the District Court’s decision to

vacate the punitive damages award. The Borough’s conduct was not so flagrant as to

warrant punitive damages, particularly because there was a legitimate concern for the


                                             10
safety of Dunmore citizens. See BMW, 517 U.S. at 575-576. Dee suffered no economic

harm, as he was suspended with pay and lost no job benefits once he was reinstated.

Furthermore, as stated earlier, there is no evidence of callous, intentional or malicious

conduct. Id.; Campbell, 538 U.S. at 416 (ruling that due process prohibits grossly

excessive or arbitrary punitive damage awards).

       It follows that we will affirm the District Court’s decision to vacate the punitive

damage award of $6,000.

                                             III.

       In its cross-appeal, the Borough argues that the District Court should have granted

its motion for judgment as a matter of law with respect to Dee’s due process claim.

Specifically, the Borough contends that the District Court erred in tasking the jury with

the application of the due process balancing test announced by the Supreme Court in

Mathews v. Eldridge, 424 U.S. 319, 332 (1975). The Borough contends that the District

Court should have applied that test as a matter of law, rather than referring it to the jury.

We conclude, however, that we need not reach this issue because the Borough failed to

properly preserve any error committed by the District Court.

       The Borough never objected prior to or during trial that the District Court should

not have referred the Mathews test to the jury. Rather, the only argument that it made

with respect to the Mathews test was that the evidence was insufficient to support a




                                              11
verdict in favor of Dee. 3 Moreover, as its counsel admitted, the Borough failed to object

to the District Court’s jury instructions on this issue. As such, the Borough failed to

preserve the issue of whether the District Court, rather than the jury, should have applied

the Mathews factors.

       The Borough’s failure to preserve this issue for appeal is not affected by the fact

that, in a different case arising out of similar facts, the District Court recognized its own

error. See Memorandum, Smith v. Borough of Dunmore, No. 3:05-CV-1343 (M.D. Pa.

Sept. 21, 2011), ECF No. 182 at 4 (“The balancing of the Mathews factors by the jury and

not the court was error. . . .”). Although this court has discretionary power to address

waived issues in exceptional circumstances, this is not such a case. See Webb v. City of

Philadelphia, 562 F.3d 256, 263 (3d Cir. 2009) (recognizing discretion to hear waived

arguments where the issue’s resolution is of public importance, where there is a risk of a

miscarriage of justice, or where the issue is a purely legal one). Moreover, the interests of

justice are not served by permitting the Borough to raise novel arguments in this appeal.

Any prejudice resulting to the Borough from the District Court’s mistake is attributable to

the Borough’s failure to raise the argument and advise the District Court of relevant case

law. We cannot permit parties who lose jury verdicts to raise on appeal novel legal


       3
         To the extent the Borough intends to challenge on appeal the District Court’s
rejection of its argument based on insufficiency of evidence before the jury rendered its
verdict, we will affirm. As noted by the District Court, there was conflicting evidence on
the Borough’s motivation in suspending Dee. Cf. Dee v. Borough of Dunmore, 549 F.3d
225, 233 (3d Cir. 2008 ) (recognizing a disputed issue of material fact as to the Borough’s
                                              12
arguments that they could have made, but failed to make, before the trial court. See

United States v. Nee, 261 F.3d 79, 86 (1st Cir. 2001) (“Th[e] ‘raise-or-waive rule’

prevents sandbagging; for instance, it precludes a party from making a tactical decision to

refrain from objecting, and subsequently . . . assigning error . . . .”) (cited in Tri-M Group,

LLC v. Sharp, 638 F.3d 406, 434 (3d Cir. 2011)).

       Thus, the Borough waived its current argument that the District Court should not

have referred the Mathews test to the jury, and we decline to exercise our discretion to

consider that argument.

       For the reasons set forth, we will affirm the District Court’s judgment.




motivation in suspending Dee).
                                              13
