Part 4: K-9 officer's son was bitten at home; city paid out $3,000

The family of a Philadelphia K-9 officer, whose police dog Stormy has attacked and mauled at least four unarmed citizens, sued and collected $3,000

from the city after the animal bit the officer's 2 1/2-year-old son and inflicted facial cuts requiring 28 stitches.

The officer, Stephen Gubicza, 33, has been a defendant in four civil suits - two of them settled by the city and two awaiting trial - alleging either that he failed to control his K-9 dog or that he ordered Stormy to attack an innocent person in violation of his civil rights.

At the time of the attack on the child, on Nov. 17, 1978, the Police Department required K-9 officers to house their dogs at home in order to strengthen the bond between the handlers and their K-9 partners.

The complaint, filed by Denise Gubicza, Officer Gubicza's wife, alleges that the city "was careless, reckless and negligent in failing to warn plaintiffs of the danger of its dog which it knew or should have known. "

"That dog is a dangerous instrumentality," Ernest J. Buccino Jr., who represented the Gubicza family, said in an interview. "And the city is negligent just by ordering you to put that instrumentality into your home.

"You're putting this killer dog into a home, and if you walk into a home, you just don't expect to find a killer dog there. . . . The dog is just like a bomb; you touch the dog, and it blows up. "

Buccino said that after Stormy's attack on Christopher Gubicza, the city paid to have a special pound and "a runway enclosed by a cyclone fence" constructed outside the Gubiczas' home in Northeast Philadelphia. What is visible today in the Gubiczas' yard is a small, triangular enclosure surrounded by a cyclone fence.

However, Police Capt. John J. McLees, the department's spokesman, said the Police Department did not pay for the facility at the Gubicza home. Gabriel L. I. Bevilacqua, the chief deputy city solicitor for claims and enforcement, said that "if the cops didn't pay for it, then it was not paid for by any city agency. "

Stormy, according to documents filed in one of the civil cases against Gubicza, still patrols the streets of Center City with his handler.

The attack on Christopher Gubicza came to light last month after The Inquirer reported on April 15 that a three-month investigation had found that a small group of the city's K-9 officers had lost control of their dogs or ordered them to attack unarmed men and women.

The day after publication of the report, which described nine K-9 attacks, the FBI and the U.S. attorney's office decided to begin a criminal investigation of the allegations against the K-9 officers. The Inquirer investigation was based on interviews with victims and eyewitnesses to the attacks, medical records, photographs and court documents.

In the last week, all nine of the victims identified in The Inquirer's account or their attorneys have been contacted by FBI agents, who have stated that they are investigating the cases for possible civil rights violations.

Officer Gubicza was involved in one of the nine cases, a May 1980 incident in which a 26-year-old Lawncrest man has contended that Gubicza ordered Stormy to attack him as he was trying to leave the scene of a brawl at the Ukrainian-American Club at Franklin and Poplar Streets.

The Lawncrest man, Joseph Halbherr, was charged by Gubicza with failure to disperse and disorderly conduct, but the district attorney's office, a few days after the arrest, withdrew prosecution in the case.

Halbherr and his attorney, Beverly K. Thompson, subsequently filed a civil suit in U. S. District Court alleging that Gubicza had violated Halbherr's civil rights. The Halbherr case took place 18 months after Stormy attacked Gubicza's son.

On the same day of Halbherr's arrest in May 1980, two other men at the Ukrainian-American Club were attacked by Stormy, according to their attorneys, Jeffrey M. Voluck and Alan M. Shpigel. One of the two, Myron Sawicky, was arrested on charges of resisting arrest and simple assault, but the district attorney's office - as it did in the Halbherr case - withdrew prosecution a few days after the incident. The other man, Peter Hulayew, was not charged with any violation.

Both men filed civil suits against Gubicza and the city. On March 28, as the cases were about to go to trial before Common Pleas Court Judge Murray C. Goldman, the city offered to pay $10,000 to Sawicky, who had been bitten on the buttocks and on the wrist, and $5,000 to Hulayew, who sustained lesser injuries, according to Voluck. The offer was accepted, and the cases were

closed, Voluck said.

The Inquirer requested an interview with Gubicza in both a certified letter and a telephone call before publication of its K-9 report on April 15, but the officer did not respond. He could not be reached for comment at the Sixth District, where he is assigned, on his family's suit against the city.

Buccino, who represented the Gubicza family, was asked Monday by a reporter to request an interview with the officer and his wife. Buccino said the next day that the Gubiczas "weren't too thrilled" to receive the request and did not want to discuss the case.

In October 1981, a year and a half after the Halbherr incident, Stormy leaped out of Gubicza's police jeep and attacked Ronald Whitt, 23, a Willingboro, N.J., man who had driven into Center City for a late movie. Whitt, who has filed a civil suit against Gubicza, was not charged with any violation of the law.

Whitt, now a freshman music major at Alabama State University in Montgomery, was taken to Hahnemann University Hospital and treated for dog bites of the left calf and right thigh. The scars from those bites are still visible.

Bevilacqua, the chief deputy for claims and enforcement in the city Law Department, said that he was "incensed when I first heard about" the Gubiczas' lawsuit against the city. "It wasn't fair to hold the city accountable for what happened there. I still feel strongly about that. He (Gubicza) was the first line of supervision in that case. "

POTENTIALLY DANGEROUS

Bevilacqua said that K-9 officers learned during their 14-week training course at the Police Academy that their dogs were potentially dangerous, and he produced a paper entitled "A Summary of Hints to Aid Police Officers," which focused on the K-9 unit. The one-page document states that "anyone making a threatening move or gesture toward a handler risks the possibility of injury. . . . Even gestures such as a pat on the back or a boisterous greeting could cause the dog to react in an aggressive manner. "

Bevilacqua said that he personally did not make the decision to settle with the Gubiczas, but that he believed the risk of a large jury award made it prudent to settle out of court for $3,000.

"Eight times out of 10," Bevilacqua said, "I'd win a case like that. But in the other two, I'd lose, and the verdict would be a lot more than $3,000. What you have is a significant scar on an otherwise handsome little boy, and that's a situation which can get a lot of sympathy from a jury. " Court documents show that the settlement was reached on Oct. 18, 1982.

Bevilacqua emphasized that the Municipal Tort Claims Act limits the city's liability in negligence cases to the actual financial losses suffered by the plaintiff - unless someone permanently loses a bodily function.

The attack on Christopher Gubicza is recounted in a thick court file in the city Law Department, which includes extensive medical records, photocopies of photographs of Christopher Gubicza's injuries, police reports, K-9 training documents distributed by the Police Department and a handwritten account of the incident signed by Officer Gubicza. The entire file, except for confidential attorney work papers, was made available to The Inquirer by Bevilacqua.

As described in the accident report on file in the Law Department, the attack on young Gubicza occurred about 8:30 a.m. when "K-9 stormy did bite Christopher Gubicza on the right side of the face. Accident did occur inside above address. He was taken to Nazareth Hospital and treated by doctor Rolando Juarez on 11/17/78 and received approximately 20 Stiches. "

As in most legal disputes, the Gubicza suit against the city consists of a body of basically undisputed facts, which are then subject to the scrutiny and differing interpretations of attorneys for both sides.

Those two interpretations are set forth in memorandums prepared in the fall of 1982 for a settlement conference supervised by Common Pleas Court Judge William M. Marutani. Based on those court documents, there are at least three facts on which both sides appeared to agree:

* Christopher Gubicza, age 2 1/2, was bitten by Stormy in the living room of Gubicza's home in Northeast Philadelphia.

* The only witness to the attack was Denise Gubicza, who was sitting on a living room couch watching television.

* Officer Gubicza drove his son to Nazareth Hospital, arriving there at 8:39 a.m., according to hospital records. At the hospital, Christopher received a total of 28 stitches to close two wounds on his right cheek.

The city's account of what happened just before the attack is slightly different from that contained in a pretrial memorandum prepared for the Gubiczas by lawyer Thomas J. Leach. Leach represented the Philadelphia Contributionship, the company with which the family had its homeowner's insurance policy.

Leach said in the memorandum that when the bite occurred "both Christopher and Stormy were under the supervision of Christopher's mother, Denise Gubicza. Christopher was sitting on the living room rug, watching television, in the same room as his mother; Stormy was some distance away. . . . Mrs. Gubicza has testified in deposition that Christopher did not provoke Stormy in any way, and the reason for Stormy's sudden, short-lived attack is unknown. "

The city's memorandum stated that Officer Gubicza was asleep at the time of the incident and that, instead of "having Stormy sleep in the bedroom as usual, Mr. and Mrs. Gubicza left him in the living room. "

It is at this point that the documents diverge. The city asserts that there was some provocation - however slight - for Stormy's actions. While Mrs. Gubicza watched television, the document says, "Christopher was playing on the floor next to Stormy less than three feet away from her. When Christopher ran a toy truck over Stormy's back, the dog bit his cheek. "

The city's memorandum, prepared by Assistant City Solicitor Gilda L. Kramer, stated that after biting Christopher, Stormy "was housed for six months elsewhere, and since then has been housed in a kennel in the Gubiczas' yard," an apparent reference to the facility Buccino said the city had paid to have erected.

Christopher Gubicza, the city asserted, "suffered a minor injury to his cheek. . . . He has a small scar on his cheek, and plastic surgery has not been recommended at this time. In another 10 years, he may be re-evaluated for possible corrective surgery. "

A letter written by a plastic surgeon in February 1980 said that Christopher still had an "oblique," five-centimeter-long scar on his right cheek, and another small, vertical scar nearby.

The surgeon, Dong S. Cha, stated that "revision of these scars would improve the appearance of these scars and the surgical fee would be about $1,000. " The physician said the surgery would require at least three days of hospitalization, leading to additional expenses, which he did not estimate.

Buccino said that in the years since the letter, the scars had healed well, and that his young client had suffered neither nerve damage nor emotional trauma as a result of the attack.

CHRONOLOGY OF CASES INVOLVING K-9 DOG STORMY

Here is a chronology of events in the five attack cases in which Officer Stephen Gubicza's K-9 dog Stormy was involved:

Nov. 17, 1978: Stormy bites Christopher Gubicza, age 2 1/2, who requires 28 stitches to close the cuts.

May 4, 1980: Stormy bites Joseph Halbherr, Myron Sawicky and Peter Hulayew at the Ukrainian-American Club. (All three men file civil suits against Gubicza. )

November 1980: Denise Gubicza, Officer Gubicza's wife, files a lawsuit against the city.

Oct. 29, 1981: Stormy attacks Ronald Whitt at 12th and Appletree Streets.

Oct. 17, 1982: The city Law Department settles the suit filed by Denise Gubicza for $3,000.

September 1983: Ronald Whitt files a lawsuit against Gubicza and the city.

March 28, 1984: The city settles the suits filed by Sawicky and Hulayew by paying them $10,000 and $5,000, respectively.