Law Offices of Popper & Yatvin
Municipal Liability for Off
Duty Police Misconduct
It was alleged that during the early morning hours of March 2,
1992, plaintiffs James Maryanski and Brian Kelly were driving
home in Maryanski's car after having left the Columbia Yacht Club,
an after hours establishment. Plaintiffs were traveling on Linden
Avenue when their attention was drawn to a white car directly
behind them, flashing its high beams and beeping at plaintiffs.
The occupant of the white car, Paul Viola, a Philadelphia Police
Officer at the time, was yelling at plaintiffs as he drove around and
passed the plaintiffs' vehicle.
Both cars eventually stopped at the red light at the intersection at
State Road and Linden Avenue where a verbal argument ensued
between Kelly, the passenger in Maryanski's vehicle, and Officer
Viola, the driver of the white car. Following this brief verbal
encounter, Officer Viola left the area, making a U turn in front of
plaintiffs' vehicle. Plaintiffs continued to proceed home via Linden
Avenue when they spotted the same white car in the parking lot of
a Wawa convenience store. Officer Viola was observed talking to
an individual in a Ford Bronco. This individual was later identified
as defendant Francis Cheney, a Philadelphia Police Officer.
Upon spotting the plaintiffs, the defendant officers got into their
vehicles and roared out of the parking lot in pursuit of the
plaintiffs. Plaintiffs, fearing for their safety, attempted to drive to
the police district, and presumably to safety. The white car, driven
by Officer Viola, cut in front of plaintiffs' vehicle while the Bronco,
driven by Officer Cheney boxed in plaintiffs from the rear. Plaintiff
Maryanski, still fearing for his safety, exited his vehicle with a
baseball bat. At this point, Officer Cheney, in the Bronco,
attempted to run over Maryanski, missing him. Officer Cheney
then backed up and exited his vehicle announcing that he and
Viola were Police Officers.
After Officer Viola produced his police badge, Maryanski, believing
he had nothing to fear, discarded the baseball bat. Officers Viola
and Cheney then jumped on Maryanski who was briefly able to
escape across the street and onto the lawn of a residence before
being tackled from behind by Officer Cheney. During the course
of the ensuing struggle, Officer Cheney bit both of Maryanski's
ears. Officer Viola then came over and both defendants began to
kick, stomp and punch Maryanski about his face and body
repeatedly. Eventually, the shocked neighbors who were
awakened by the commontion called police who quickly responded.
Officer Cheney obtained a pair of handcuffs from a uniformed
Philadelphia to cuff one of the plaintiffs. Officer Cheney then
escorted plaintiff Brian Kelly to a marked police vehicle where, it
was alleged, he (Officer Cheney) proceeded to punch Kelly in the
face, in the presence of, and without intervention by, the
uniformed responding officers. After plaintiffs were taken from the
scene by the uniformed officers, one of the defendants entered
the vehicle of plaintiff Maryanski and drove away from the scene
with defendant Cheney's Bronco following. After vandalizing the
vehicle, including breaking out all of the windows, Officers Cheney
and Viola returned the vehicle to the scene.
Plaintiff Maryanski was taken from the scene to Nazareth Hospital
where he was treated for his injuries. Maryanski spent
approximately 1-2 days in the hospital before being discharged.
At the hospital, Maryanski was handcuffed to his bed, under arrest
and under police guard. While in the hospital Philadelphia Police
Detectives a advised Maryanski of the charges being placed
against him and gave him his Miranda warnings, at which time they
took a statement from Maryanski. No charges were ultimately
brought against plaintiffs, while Officers Cheney and Viola were
eventually arrested, discharged from the Police Department and,
following trial, convicted of aggravated assault and related
Popper & Yatvin tried the case to a jury in United States District
Court for the Eastern District of Pennsylvania. We alleged that
the City of Philadelphia had, by failure to adequately train or
discipline its officers, and by failing to meaningfully investigate
allegations of abuse of powers and position by off-duty police
officers, had acquiesced in and caused to continue and flourish, a
persistent and widespread pattern and practice of such abuses.
The jury found the City liable for the conduct of defendants
Cheney and Viola, and the injuries suffered by plaintiff.
The City settled for the amount of the verdicts, plus agreed upon
counsel fees and costs, while the case was on appeal.
Kelly and Maryanski v. City of Philadelphia
(Decision on City Daubert Motion)