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BRENDA NUSS v. TOWNSHIP FALLS (05/03/85)

decided: May 3, 1985.

BRENDA NUSS, ADMINISTRATRIX OF THE ESTATE OF THOMAS NUSS, DECEASED, APPELLANT
v.
TOWNSHIP OF FALLS, ET AL., APPELLEES



Appeals from the Order of the Court of Common Pleas of Bucks County in case of Brenda Nuss, Administratrix of the Estate of Thomas Nuss, deceased v. Township of Falls; Charles C. Chimera, John R. Banko, Richard Goulding, Morris E. Ianni, and Richard Smith, as Supervisors of the Township of Falls, Nos. 80-7286-09-6 and 80-9417-12-6.

COUNSEL

Martin J. King, Cordes, King & Associates, for appellant.

Richard R. Fink, Fink, Fink & Associates, for appellees.

Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Rogers.

Author: Rogers

[ 89 Pa. Commw. Page 99]

Brenda Nuss, the administratrix of the estate of former Falls Township police officer Thomas Nuss, has appealed from an order of the Court of Common Pleas of Bucks County upholding the action of the Falls Township Board of Supervisors dismissing Mr. Nuss from the Falls Township Police Department.*fn1

On February 1, 1980, at four o'clock in the morning, officer Nuss and other township police officers pursued a stolen vehicle operated at high speed by a juvenile for ten minutes over eight miles of public highways. The chase ended when the juvenile lost control of the stolen car and it came to rest in the highway. Mr. Nuss left his vehicle and with his service revolver drawn approached the vehicle driven by the juvenile. When Mr. Nuss was a few feet from the other car, the juvenile emerged and stood facing Mr. Nuss with his hands raised. Mr. Nuss would later testify that the juvenile took a step forward as though to flee. The juvenile denied this. Mr. Nuss struck the juvenile above the left eye with his service revolver, and the juvenile was taken to a hospital and underwent two hours of surgery in the repair of damaged tissues around the eye.

Mr. Nuss called his superior officer advising him of the juvenile's capture, but, contrary to established departmental policy, failed to mention that the juvenile had been injured.*fn2 Later the same day, Mr. Nuss told a co-worker to fill out an arrest report and to mention in the report that the juvenile was injured while resisting arrest. Mr. Nuss, in turn, prepared his own written report in which he failed to mention

[ 89 Pa. Commw. Page 100]

    striking the juvenile or to describe the juvenile's injuries.

The following day, the Falls Township Police Chief suspended Mr. Nuss, pending an investigation of a charge levied by the juvenile of police brutality. Mr. Nuss was formally charged with neglect or violation of his official duty and with conduct unbecoming an officer.

At the hearing conducted by the Falls Township Board of Supervisors, evidence of the incident was adduced to the effect that Mr. Nuss, who was 6' 2" and weighed 220 pounds, was standing in a position which would have made it impossible for the juvenile, who was 5' 4" tall and weighed 107 pounds, to run away. Mr. Nuss testified that at the time he struck the juvenile he "was pumped" with adrenalin, and that he didn't know whether he was ...


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