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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
LAURALEE B. BARER, ESQUIRE
Pa. Supreme Court I.D. No. 58874
SADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER
A Professional Corporation
101 Pins Street
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone: (7171 236-3200
Pax: 17171 236-6863
E-Mail: bbkkbeepix.net
Direct E-Mail: badowskieepix.net
lbbakereepix.net
E5)
DEC 0 81999M
Attorney for Defendant:
ROBERT E. WENK, M.D.
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBS, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,:
PLAINTIFFS,
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
DOCKET NO. 99 CIVIL 5023
JURY TRIAL DEMANDED
BRIEF IN SUPPORT OF PRELIMINARY OBJECT ONS OF DEFENDANT
ROBERT E WENK M.D., TO PLAINTIFFS' AMENDED COMPLAINT
ARGUMENT
The essence of the Plaintiffs' purported claim in this
instance, as reflected in their Amended complaint, remains their
contention that they have been unable to obtain child support as
a result of the Defendants' having allegedly submitted erroneous
blood results to the Court in a paternity and support action. On
April 26, 1988, the Honorable Judge Harold E. Sheely of the
Cumberland County Court of Common Pleas appointed and directed
the Defendant Laboratory, to which Dr. Wenk was medical director,
to perform paternity blood testing on Plaintiff, Sue Ann Hinton,
Minor-Plaintiff, Jeremy L. Chubb, and one James R. Chubb.
Pursuant to the Court's Order, the testing was performed and the
results were submitted to the Court. Judge Sheely issued an
order on July 19, 1988, dismissing the complaint for support
allegedly based upon the Ccurt's ordered blood test results.
Accepting the allegations set out in the Plaintiffs'
j Amended Complaint as true, as we must in addressing demurrers, it
i
is readily apparent that Dr. Wenk enjoys absolute immunity in the
i
instance of this case. Under Plaintiffs' pleaded factual
- - scenario, Dr. Wenk is protected by absolute testimonial privilege
for any communications that were made as a result of the Court
ordered paternity testing. Ginsburg v. Halpern, 118 A.2d 201
(Pa. 1955); Panitz v. Behrend, 632 A.2d 562 (Pa. Super. 1993);
Post v. Mendel, 507 A.2d 351 (Pa. 1986); and Moses v.
McWilliams, 549 A.2d 950 (Pa. Super. 1988). This exact issue was
addressed by the Pennsylvania Appellate Courts in Clodgo v.
Bowman, 601 A.2d 342 (Pa. Super. 1992), wherein a mother, in her
individual capacity and as guardian to a minor, instituted a
medical malpractice action against a physician, hospital and
- 2 -
laboratory to recover for child support she lost due to negligent
performance of court ordered blood testing conducted during a
paternity proceeding. In the decision, the court found, as a
matter of fact, that there had been a communication of erroneous
information from the laboratory which excluded a potential father
from paternity. This information was communicated to the court
and the litigants and was obvious material and relevant to the
paternity question. In affirming dismissal of the lawsuit, the
Superior Court emphasized that precedent was clear in
Pennsylvania that "if the communication was made in conjunction
with judicial proceedings and was material and relevant to it,
the privilege applies." Id. 601 A.2d at 345. Consequently, the
- - Court held that, although a medical malpractice was at issue, the
privilege applied and the demurrer was properly sustained and the
case dismissed.
The Clodgo decision is factually on all fours with the
situation herein presented by the factual allegations set out in
the Plaintiffs' Amended Complaint. As the claimed medical
negligence in this instance undisputedly arises from an alleged
erroneous reporting of Court ordered blood testing results, the
absolute testimonial privilege associated with judicial
proceedings is applicable as a matter of law. Consequently, the
- 3 -
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Defendants in this case, including Dr. Wenk, are immune from suit
and Dr. Wenk is entitled to have this action dismissed in its
entirety. Dr. Wenk herein incorporates by reference the argument
and cited authorities set out in the Brief submitted on behalf of
Co-Defendant, The Baltimore RH Typing Laboratory, Inc.
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
Dated /ot=-5'L,- By:
MICHA M. BADOWSKI
EE B. BAKER
Attorneys for Defendant,
ROBERT E. WENK, M.D.
- 4 -
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the A& day of 1999, and
addressed as follows:
Susan A. Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Counsel for Plaintiffs)
Randall G. Gale, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(Counsel for Defendant, The Baltimore
- ' RH Typing Laboratory, Inc.)
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
By: j294121.1 GL/LL(
Sec etary
ncr 1.4
Randall G. Gale, Esquire
Attorney No. 16149
Thomas, Thomas & Haler, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
V.
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs,
NO. 99-5023-Civil Term
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
BRIEF OF DEFENDANTS THE
BALTIMORE RH TYPING LABORATORY, INC.,
MAPC_ARET BROOKS AND TERRY HOUTZ
IN SUPPORT OF PRELIMINARY OBJECTIONS
TO PLAINTIFFS' AMENDED COMPLAINT
1. PROCEDURAL HISTORY AND FACTUAL BACKGROUND.
This is a civil action brought by the Plaintiffs Sue Ann Hinton, individually and as
parent and guardian of Jeremy L. Chubb, a minor against Defendants The Baltimore Rh
Typing Laboratory, Inc., Robert E. Wenk, M.D., Margaret Brooks and Terry Houtz of
The Baltimore Rh Typing Laboratory. Plaintiffs claim they have been unable to obtain
child support as a result of the Defendants submitting erroneous blood results to the
Court in a paternity and support action.
Additionally, there are claims made for
emotional distress.
The Plaintiffs filed their Complaint on or about August 19, 1999. Preliminary
Objections to the Complaint were filed by all Defendants. Plaintiff then filed an
Amended Complaint. The Defendants have now filed Preliminary Objections to the
Amended Complaint. This Brief is filed in support of the Preliminary Objections of
Defendants The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks and Terry
Houtz. Robert E. Wank, M.D. is separately represented.
The background of this matter is as follows. The Plaintiffs' Amended Complaint
alleges that on or about April 26, 1988, Judge Harold E. Sheely of the Cumberland
County Court of Common Pleas, appointed the defendant laboratory to perform
paternity blood testing on Plaintiff Sue Ann Hinton, minor Plaintiff Jeremy L. Chubb and
one James R. Chubb. Testing was done on or about July 12, 1988 pursuant to the
Court Order and the results were subsequently submitted to the Court. Judge Shealy
issued an Order on July 19, 1988 dismissing the Complaint for support allegedly based
on the Court ordered testing results, which excluded James R. Chubb as the possible
father of minor Plaintiff Jeremy L. Chubb.
It is alleged that Plaintiff Sue Ann Hinton filed a second support action against
James R. Chubb on March 2, 1988 but this support claim was denied based upon the
Defendant's report of test results, which were performed by the Defendants and
reported to Judge Shealy on July 12, 1988. It is alleged a Rule to Show Cause was
issued March 31, 1998 based on a filing of a Motion for Reconsideration. The Rule
required James R. Chubb to submit to additional tests to determine paternity. It is
alleged that additional testing was done for the Court, indicating that James R. Chubb
could not be excluded as minor Plaintiffs biological father.
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The Defendants have moved to dismiss this action against them for child support
and related damages as the crux of the Complaint is that allegedly incorrect information
was given by the Defendants in the context of a Court proceeding. The Defendants
have raised the fact that they were Court appointed experts and that the Defendants'
testimonial privilege is clear on the face of the Complaint.
II. ISSUE
IS THIS ACTION AGAINST A COURT APPOINTED EXPERT
CONCERNING COMMUNICATIONS BY THE EXPERT RELATED
TO THE COURT PROCEEDINGS BARRED BY ABSOLUTE
TESTIMONIAL PRIVILEGE?
III. ARGUMENT
THIS ACTION AGAINST A COURT APPOINTED EXPERT
CONCERNING COMMUNICATIONS BY THE EXPERT RELATED
TO THE COURT PROCEEDINGS IS BARRED BY ABSOLUTE
TESTIMONIAL PRIVILEGE.
Although this case is styled as a medical malpractice negligence action, the
substance of the Plaintiffs' case is the claim that the communication of false information
in a judicial proceeding caused harm, in that Plaintiffs lost their case and suffered
resulting mental distress. That information was communicated in the context of a
judicial proceeding by a Court appointed expert. A witness must be able to give
testimony without fear of suit. For this reason the law has recognized that there is an
absolute testimonial privilege from suit for the supplying of incorrect information in the
context of a court case Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201 (1955); Block v.
Sacramento Clinical Labs. Inc., 131 Cal. App. 3d 386, 182 Cal. Rptr. 438 (1982).
3
This privilege has been variously described as a litigation privilege, judicial
privilege and testimonial privilege. There are numerous cases in Pennsylvania that
have discussed the privilege. The thrust of the cases is the same; communications in
the context of litigation are absolutely privileged.
In a case identical to this one the Pennsylvania Superior Court held in Clodco v.
Bowman, 411 Pa. Super. 267, 601 A.2d 342 (1992) that a medical malpractice action
against a court appointed expert laboratory is barred by testimonial privilege. In Clodco,
the mother, both in her individual capacity and her capacity as natural guardian of the
child, instituted a medical malpractice action against a physician, hospital and
laboratories alleging negligent performance of Court ordered paternity blood work and
claiming that as a result the paternity action was lost. The defendants filed preliminary
objections in the nature of a demurrer on the basis of absolute testimonial privilege for
communications made in connection with judicial proceedings. Judge Natale of the
Court of Common Pleas for Dauphin County granted the demurrer by Opinion and
Order of August 20, 1990 (copy attached to Preliminary Objections). The Superior
Court then affirmed in the opinion cited above. The Pennsylvania Supreme Court
granted review, (614 A.2d 1138) heard oral argument and then dismissed the appeal as
having been improvidently granted. Clodoo v. Bowman, 533 Pa. 352, 625 A.2d 612
(1993).
The testimonial privilege was affirmed in the more recent case of Panitz v.
Behrend, 429 Pa. Super. 273, 632 A.2d 562 (1993). In that case a plaintiff blamed their
retained expert for the loss of a personal injury action. In dismissing the case against
the expert the Court noted that the purpose of the judicial or testimonial privilege is to
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encourage witnesses to give frank and truthful testimony without threat of civil liability.
In Panitz v. Behrend, 632 A.2d at 564 the Court quoted from the Supreme Court of the
United States in Briscoe v. LaRue, 460 U.S. 325, 103 S. Ct. 1108, 75 L.Ed.2d 96 (1983)
where the Court said:
"[T]he claims of the individual must yield to the dictates of
public policy, which requires that the paths which lead to the
ascertainment of truth should be left as free and unobstructed as
possible." Calkins v. Sumner, 13 Wis. 193, 197 (1860). A witness'
apprehension of subsequent damages liability might induce two
forms of self-censorship. First, witnesses might be reluctant to
come forward to testify. See Henderson v. Broomhead, supra,
578-579, 157 Eng.Rep., at 968. And once a witness is on the
stand, his testimony might be distorted by the fear of subsequent
liability. See Barnes v. McCrate, 32 Me. 442, 446-447 (1851) ....
A witness who knows that he might be forced to defend a
subsequent lawsuit, and perhaps to pay damages, might be
inclined to shade his testimony in favor of the potential plaintiff, to
magnify uncertainties, and thus to deprive the finder of fact of
candid, objective, and undistorted evidence. See Veeder,
Absolute Immunity in Defamation: Judicial Proceedings. 9
Colum.L.Rev. 463, 470 (1909).
Id. 460 U.S. at 332-333, 103 S.Ct. at 1114, 75 L.Ed.2d at 103-104.
Our Supreme Court in Post v. Mendel, 510 Pa. 213, 507 A.2d 351 (1986),
discussed the absolute privilege attaching to statements in judicial proceedings. The
Court noted that, "It has long been established that statements contained in pleadings,
as well as statements made in the actual trial or argument of a case are privileged."
Post v. Mendel, 510 Pa. 213, 507 A.2d at 353. See, Silver v. Mendel, 894 F.2d 893 (3d
Cir. 1990); Muirhead v. Zucker, 726 F. Supp. 613 (W.D. Pa. 1989). The Court in Post v.
Mendel cited the history of the privilege, which finds its origins in early English common
law, set forth in Kemper v. Fort, 219 Pa. 85, 67 A. 991 (1907). The privilege was
recently invoked in two Pennsylvania Federal Court cases. In Johonoson v. Uni-Marts
5
Inc., 1999 U.S. Dist. LEXIS 12926 (E.D. Pa. 1999) a § 1983 civil rights action and state
law claims made against a witness in a criminal trial were dismissed. In Geller v.
Zappile, 54 F. Supp.2d 454 (E.D. Pa. 1999) the privilege was used to dismiss civil rights
and tort claims against two individuals connected with their testimony in a criminal
matter.
In Moses v. McWilliams, 379 Pa.Super. 150, 549 A.2d 950 (1988), patient sued
her doctor who had ex parte pretrial discussions with a medical malpractice defendant's
attorney and testified at trial. It was held that the doctor's pretrial statements and
testimony were absolutely privileged from all civil liability and the absolute privilege for
witnesses extended to pretrial ex parte communications as well as to testimony.
The Moses v. McWilliams case recognized the broad range of cases the privilege
has been applied to:
While it is true that immunity from civil liability in judicial
proceedings has been applied most frequently in defamation actions,
many courts, including those in Pennsylvania, have extended the
immunity from civil liability to other alleged torts when they occur in
connection with judicial proceedings. See, e.g., Brown v. The
Delaware Valley Transplant Program, 372 Pa. Super. 629, 539 A.2d
1372 (1988) (mutilation of a corpse, civil conspiracy, and assault and
battery); Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337
(1988) (interference with contractual relationship); Thompson v. Sikov,
340 Pa. Super. 382, 490 A.2d 472 (1985) (intentional infliction of
emotional distress); Passon v. Spritzer, 277 Pa. Super. 498, 419 A.2d
1258 (1980)(malicious use and abuse of process and invasion of
privacy); Triester v. 191 Tenants Association, 272 Pa. Super. 271, 415
A.2d 698 (1979) (disparagement of title). See also Blanchette v.
Cataldo, 734 F.2d 869 (151 Cir. 1984) (interference with contractual
relationship); Blake v. Levy, 191 Conn. 257, 464 A.2d 52 (1983)
(same); Middlesex Concrete Products and Excavating Corp. v.
Carteret Industrial Association, 68 N.J. Super. 85172 A.2d 22 (1961)
(same). Such an extension of immunity evidences the strong policy
behind the privilege: to leave reasonably unobstructed the paths which
lead to the ascertainment of truth, Briscoe, supra, and to encourage
6
witnesses with knowledge of acts relevant to judicial proceedings to
give'complete and unintimidated testimony,' Binder v. Triangle
Publications. Inc., 442 Pa. 319, 275 A.2d 53, 56 (1971). Recognizing a
cause of action for breach of confidentiality in the factual context of the
base at bar will undermine this policy. As one court observed:
[i]f the policy, which in defamation actions affords an absolute
privilege or immunity to statements made in judicial and quasi-
judicial proceedings is really to mean anything then we must
not permit its circumvention by affording an almost equally
unrestricted action under a different label.
Hoover v. Van Stone, 540 F.Supp. 1118, (D. Del. 1982) (quoting Rainier's
Dairies v. Raritan Valley Farms, 19 N.J. 552, 117 A.2d 889, 895 (1955))
(case involving claims for defamation, tortious interference with contractual
relationships, abuse of process and barratry)). The court in Hoover also
stated that:
[the torts of tortious interference with contractual relationships,
abuse of process, and barratry] are all predicated on the very
same acts providing the basis for the defamation claim.
Application of the absolute privilege solely to the defamation
count ... would be an empty gesture indeed, if, because of
artful pleading, the plaintiff could still be forced to defend itself
against the same conduct regarded as defamatory.
Maintenance of these kindred causes of action, moreover,
would equally restrain the ability of judges, parties, counsel and
witnesses to speak and write freely during the course of judicial
proceedings.
Id. (Emphasis added).
549 A.2d at 957-958.
It should further be noted that Pennsylvania Courts have recognized the concept
of quasi-judicial immunity in various contexts. E.G., Feinoold v. Hill, 360 Pa. Super.
539, 521 A.2d 33 (1987), (law clerks); Tulio v. Commissioner, 79 Pa. Cmwlth. 305, 470
A.2d 645 (1984), (Commissioner of State Horse Racing Commission); and Myers v.
Commonwealth, 312 Pa. Super. 1, 458 A.2d 235 (1983), (Workmen's Compensation
Referee). In Matter of XYP, 523 Pa. 411, 567 A.2d 1036 (1989), it was noted that a
7
judicial officer must be free to act without apprehension of personal consequences to
himself.
In Howard v. Draokin, 222 Cal. App. 3d 843, 271 Cal. Rptr. 893 (1990), it was
held that a psychologist retained in a child custody case to evaluate a family to provide
recommendations concerning appropriate custody orders was shielded from civil liability
for various tort claims alleging both negligent and intentional misconduct under the
umbrella of quasi-judicial immunity, as well as testimonial privilege. It was noted that an
absolute quasi-judicial immunity is extended to those neutral third-parties for their
conduct in performing dispute resolution services which are connected to the judicial
process and involve the making of binding decisions or the making of findings or
recommendations to the Court. The defendant psychologist had been hired to evaluate
the child's allegations that the father had sexually abused the child held that for
purposes of the child custody dispute, the defendant psychologist was immune from the
mother's action alleging professional negligence, intentional infliction of emotional
distress, negligent infliction of emotional distress and fraud. It was noted that the
alleged wrongful communications by the defendant psychologist were made in a judicial
proceedings, the publications had a connection to the case, the defendant psychologist
was a court-approved participant, and the communication was made to achieve the
objects of the litigation.
The court in Howard v. Draokin stated:
We are persuaded that the approach of the federal courts is
consistent with the relevant policy of considerations of attracting to an
overburdened judicial system the independent and impartial services
and expertise upon which that system necessarily depends. Thus, we
believe it appropriate that these'nonjudicial persons who fulfill quasi-
8
judicial functions intimately related to the judicial process' (Myers v.
Morris, supra, 810 F.2d at p. 1466-1467) should be given absolute
quasi-judicial immunity for damage claims arising from their
performance of duties in connection with the judicial process. Without
such immunity, such persons will be reluctant to accept court
appointments or provide work product for the courts' use. Additionally,
the threat of civil liability may affect the manner in which they perform
their jobs. (Moses v. Parwatikar 8m Cir. 1987) 813 F.2d 891, 892, cert.
denied. 484 U.S. 832, 108 S. Ct. 108, 98 L. Ed. 2d 67.)
271 Cal. Rptr. at 901.
This quasi-judicial immunity approach finds support in a number of federal cases
E.g., Mosher v. Saalfeld, 589 F.2d 438 (9th Cit. 1978) cert. denied, 442 U.S. 941, 99 S.
Ct. 2883, 61 L. Ed. 2d 311, (Court appointed conservator); New Alaska Development
Corp. v. Guetschow, 869 F.2d 1298 (9th Cir. 1989), (Court appointed receiver);
Coverdell v. Dept. of Social & Health Services, 834 F.2d 758 (91h Cit. 1987), (child
protective service worker acting pursuant to Court Order to take a child into custody);
Myers v. Morris, 910 F.2d 1437 (8rh Cir. 1987), cert. denied, 484 U.S. 828, 108 S. Ct.
97, 98 L. Ed. 2d 58, (guardians ad litem, psychologists and attorneys for children in child
abuse actions); Demoran v. Witt, 781 F.2d 155 (9rh Cir. 1986), (probation officers
preparing presentencing reports); and Kruzawa v. Mueller, 732 F.2d 1456 (6rh Cir.
1984), (Department of Social Services workers and psychiatrists involved in terminating
plaintiffs' parental rights.
In Triester v. 191 Tenants Association, 272 Pa. Super. 271, 415 A.2d 689 (1979)
it was held, citing Restatement (Second) of Torts § 587 pertaining to privileges of
parties in a lawsuit, that statements made in the course of litigation were absolutely
privileged and barred an action for disparagement of title (a form of injurious falsehood).
Likewise an absolute testimonial defense barred the defamation action in Binder v.
9
Triangle Publications Inc., 442 Pa. 319, 275 A.2d 53 (1971). Introductory Notes to the
Restatement (Second) of Torts section on absolute privilege provide in part:
These'absolute privileges' are based chiefly upon a recognition of
the necessity that certain persons, because of their special position or
status, should be as free as possible from fear that their actions in that
position might have an adverse effect upon their own personal
interests. To accomplish this, it is necessary for them to be protected
not only from civil liability but also from the danger of even an
unsuccessful civil action. To this end, it is necessary that the
propriety of their conduct not be inquired into indirectly by either court
or jury in civil proceedings brought against them for misconduct in
their position. Therefore the privilege, or immunity, is absolute and
the protection that it affords is complete.
Restatement (Second) of torts, Chapter 25, Title B, p. 243.
Section 588 of the Restatement (Second) of Torts has been adopted in
Pennsylvania in Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201 (1955), where it was
held that no civil action can be brought to recover damages from a witness who has
given false testimony. This case reaffirmed the old holding in Kemper v. Fort, 219 Pa.
85, 67 A. 991 (1907), that there is no civil action in Pennsylvania for perjury. Also, Zia
v. Wimmersberger, 544 F. Supp. 559 (E.D. Pa. 1982); Safeguard Mutual Insurance
Company v. Miller, 477 F. Supp. 299 (E.D. Pa. 1979); Greenberg v. Aetna Insurance
Company, 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, 392 U.& 907 88 S. Ct.
2063, 20 L.Ed. 2d 1366 (1968); Jennings v. Cronin, 256 Pa. Super. 398, 389 A.2d 1183
(1978).
The only qualification which seems to be placed on the immunity granted to
judicial witnesses is that the privileged testimony must be relevant and pertinent to the
proceedings. Greenberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967),
cert. denied, 392 U.S. 907 (1968); Barto v. Felix, 250 Pa. Super. 262, 378 A.2d 927
10
(1977). That requirement is met in this case as the test result communicated formed
the basis for the original Order. In our case the blood test report was prepared by the
Defendants for the Domestic Relations Office of Cumberland County and the Court of
Common Pleas of Cumberland County pursuant to the "Uniform Act on Blood Tests to
Determine Paternity," 42 Pa.C.S. § 6131 et seq.
It is provided in 42 Pa. C.S. 6133 that:
6133. Authority for test
In any matter subject to this subchapter in which paternity,
parentage or identity of a child is a relevant fact, the court upon its
own initiative or upon suggestion made by or on behalf of any
person whose blood is involved, may or upon motion of any party to
the action made at a time so as not to delay the proceedings unduly,
shall order the mother, child and alleged father to submit to blood
tests. If any party refuses to submit to such tests, the court may
resolve the question of paternity, parentage or identity of a child
against such party, or enforce its order if the rights of others and the
interest of justice so require. (Emphasis supplied).
It is provided in 42 Pa.C.S. § 6134 that:
§ 6134. Selection of experts.
The tests shall be made by experts qualified as examiners of
blood types, who shall be appointed by the court. The experts shall
be called by the courts as witnesses to testify to their findings and
shall be subject to cross-examination by the parties. Any party or
person at whose suggestion the tests have been ordered may
demand that other experts qualified as examiners of blood types
perform independent tests under order of court, the results of which
may be offered in evidence. The number and qualifications of such
experts shall be determined by the court. (Emphasis supplied).
It is provided in 42 Pa.C.S. 6136 that:
§ 6236. Effect of test results
If the court finds that the conclusions of all the experts as
disclosed by the evidence based upon the tests are that the alleged
11
father is not the father of the child, the question of paternity,
parentage or identity of a child shall be resolved accordingly. If the
experts disagree in their findings or conclusions, the question shall
be submitted upon all the evidence.
The Act makes clear that the experts are appointed by the Court and shall then
be called to give evidence as to their findings.
A case that is right on point is that of Block v. Sacramento Clinical Labs, Inc., 131
Cal. App. 3d 386, 182 Cal. Rptr. 438 (1982). In that case the plaintiff was charged with
murder after a toxicologist communicated a calculation of the number of baby aspirin
which plaintiffs child would have had to ingest to produce a high concentration of
salicylate found in a baby's bloodstream to the district attorney's office. It was later
revealed that the toxicologist's calculations were in error and the murder charges were
dropped. At that point, the plaintiff then made a claim for professional negligence
against the toxicologist. The Court held that the action for professional negligence
would be defeated where liability was predicate upon publication of an injurious
falsehood, consisting of communication of a negligently prepared report to the district
attorneys for purposes of criminal action, as it was absolutely privileged. See, Prosser
and Keeton, Torts (5" ad. (1984) § 128, p. 962 et seq., especially p. 973).
Block discusses whether the privilege applies for torts variously termed fraud,
negligent misrepresentation, negligent infliction of emotional distress, and intentional
infliction of emotional distress. It is noted that the privilege extends to tort claims
however labeled, if predicated on an injurious falsehood and if published in judicial or
other protected proceedings. It was noted in Block that on any cognizable theory of
duty, the allegedly negligent calculation formed the basis of a communication and was
12
privileged and that the salutary purpose of the privilege should not be frustrated by
putting a new label on the Complaint.
In the case of Gootee v. Lightner, 224 Cal. App. 3d 587, 274 Cal., Rptr. 697
(1990), plaintiff father sued a psychologist who had conducted psychological testing in
the context of a child custody proceeding. After conducting this testing, the defendant
psychologist prepared a report and testified in the child custody proceeding. The
plaintiff father lost custody, although he subsequently regained custody in further
proceedings. He then sued the defendant psychologist for, inter alia, negligence in the
defendant psychologist for, inter alia, negligence in administering and interpreting the
testing he did. The defendant psychologist asserted the absolute judicial or testimonial
privilege. The plaintiff father asserted that this privilege could not insulate the defendant
psychologist from liability for negligence. Noting that the operative facts were
undisputed, the California Court noted that the question of the application of the
privilege was a matter of law. The Court concluded that the plaintiff father's claims were
barred by the testimonial privilege. (While it is true that California has such a privilege
in its Code, the privilege is indistinguishable from the common law privilege that has
been applied by the Pennsylvania Courts.)
The Court in Gootee v. Lighter said:
It is undisputed that respondents' role was a limited one: to
evaluate the partisans in the custody matter for purposes of
testifying concerning the custody dispute. Because the
gravamen of appellant's claim relies on negligent or intentional
tortious conduct committed by respondents in connection with
the testimonial function, we conclude the absolute privilege
bars civil lawsuits (other than for malicious prosecution) seeing
to impose liability on respondents for such misfeasance.
(Footnote omitted).
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274 Cal Rptr. at 699.
It is clear that a witness must be able to give testimony without fear of suit. As
the basis for both counts of the Complaint for damages, is the giving of allegedly
incorrect information in a paternity support action, the case should be dismissed based
on absolute testimonial privilege just as in Clodao v. Bowman, 601 A.2d 342 (Pa. Super.
1992).
IV. CONCLUSION
For all of the reasons stated above the Preliminary Objections of the Defendants
should be granted and this action should be dismissed.
THOMAS, THOMAS & HAFER, LLP
/ /
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By
6kk
Re ` II G. Gale, Esquire
Attorney ID # 26149
305 North Front Street, 6`" Fl
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7648
74680.1
14
CERTIFICATE OF SERVICE
1, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for
Defendants The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually
and Terry Houtz, individually do hereby certify that a copy of the foregoing
document was served upon the following by enclosing a true and correct copy in
envelopes addressed as follows, postage prepaid, and depositing same in the United
States Mail at Harrisburg, Pennsylvania, on the 7` day of C/ ? ? 1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowski, Esquire
Badowski, Banko, Kroll, Kronthal and Baker
P.O. Box 932
Harrisburg, PA 1 71 03-09 3 2
THOMAS, THOMAS & HAFER, LLP
By
Ran all G. Gale, Esquire
15
POST & SCHELL, P.C.
BY: ANDREW H. BRIGGS
I.D. # 53072
240 GRANDVIEW AVENUE
CAMP HILL, PA 17011
(717) 731-1970
SUE ANN HINTON, individually, and
JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian
ATTORNEYS FOR DEFENDANT
THE BALTIMORE RH TYPING
LABORATORY, INC.
IN THE COURT OF COMMON
PLEAS
CUMBERLAND COUNTY,
PENNSYLVANIA
Plaintiffs,
V.
CIVIL ACTION - LAW
THE BALTIMORE RH TYPING
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually
Defendants
TO THE PROTHONOTARY:
NO. 99-5023
JURY TRIAL DEMANDED
Kindly enter my appearance on behalf of Defendant, The Baltimore RH Typing Laboratory,
Inc., in connection with the above-captioned case.
Respectfully submitted,
POST & SCHELL, P.C.
REW H. BRI G SQUIRE
Attorney for Defendant
The Baltimore RH Typing Laboratory, Inc.
1, Kelley Spangler, an employee of the law offices of Post & Schell, P.C., do hereby certify that on the
date listed below, I did serve a true and correct copy of the foregoing document upon the following person(s)
at the following address(es) by sending same in the United States mail, first-class, postage prepaid:
Susan Kay Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael Badowski, Esquire
REYNOLDS & HAVAS
101 Pine Street
Harrisburg, PA 17101
Randall G. Gale, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
Harrisburg, PA 17101
?) 1 ,CL ,I Qnn gp)/)
KELLEY SPANGL R '
DATE: _ I-_:?q , 1999
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Randall G. Gale, Esquire
Attorney No. 16149
Thomas, Thomas & Hafer, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
v.
Plaintiffs,
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
ivWNRGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE FOR ENTRY OF APPEARANCE
TO: Curt Long, Prothonotary
Cumberland County Courthouse
1 Courthouse Square
Carlisle, PA 17013-3387
Please enter the appearance of the undersigned as attorneys for the Defendants
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
individually in the above -captioned matter.
THOMAS, THOMAS & HAFER, LLP
By /
R all G. Gale, Esquire
Attorney ID # 26149
305 North Front Street, 61' Floor
P.O. Box 999
Harrisburg, PA 17108-0999
72022.1 (717) 255-7648
{ CERTIFICATE OF SERVICE
I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for Defendants
I
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
i
individually do hereby certify that a copy of the foregoing document was served upon the
following by enclosing a true and correct copy in envelopes addressed as follows, postage
Prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania, on the
day of
j 1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
Reynolds & Havas P.C.
101 Pine Street
f P.O. Box 932
Harrisburg, PA 17108-0932
THOMAS, THOMAS & HAFER, LLP
Randall G. Gale, Esquire
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MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
BADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER
A Professional corporation
101 Pine Street
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone: [717] 236-3200
Pax: [717] 236-6863
E-Mail: bbkkb@epix.net
Direct E-Mail: badowski@epix.net
Attorney for Defendant:
ROBERT E. WENK, M.D.
SUE ANN HINTON, INDIVIDUALLY, IN THE COURT OF COMMON PLEAS
AND JEREMY L. CHUBB, A MINOR, OF CUMBERLAND COUNTY, PENNA.
BY SUE ANN HINTON, HIS GUARDIAN,: CIVIL ACTION - LAW
PLAINTIFFS,
VS.
DOCKET NO. 99 CIVIL 5023
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS. JURY TRIAL DEMANDED
PPAECIp . TO M ER APPEARANCE
TO THE PROTHONOTARY OF CUMBERLAND COUNTY, PENNSYLVANIA:
Kindly enter my appearance on behalf of Defendant,
ROBERT E. WENK, M.D., in the above-captioned matter.
Date:,"
BADKOWSKI, BANKO,-KROLL,
KRONTHAL/AND PAKER
A ProE'es ion Corprrat' on
By: _.,
MICHAEL M. BADOWSKI
Attorney for Defendant,
ROBERT E. WENK, M.D.
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Harrisburg, Pennsylvania, first-class
postage prepaid, on the _/"7tkday of 1999, and
addressed as follows:
Susan A. Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Counsel for Plaintiffs)
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
BY: i i
Se retary
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PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and sutmitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please List the within matter for the next Argunent Court.
CAPTION OF CASE
(entire caption must be stated in full)
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBB, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,
(PLaintiff)
V5.
THE BALTIMORE RH TYPING
LABORATORY, INC.;
ROBERT E. WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
(Defendant)
No, 5023 Civil
1999
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
denu:rer to conpL3int, etc.) :
PRELIMINARY OBJECTIONS OF DEFENDANT, ROBERT E. WENK, M.D.,
TO PLAINTIFFS' COMPLAINT
2. Identify counsel who will argue case:
(a) for plaintiff: Susan A. Candiello, Esquire
Address: 1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(b) for defendant: Lauralee B. Baker, Esquire
Address: 101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
3. I will notify all parties in writing within two days that this case has
been listed for argument.
4- Argumnt Court Date: October 13, 1999
At-temev for De en ant i
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THOMAS, THOMAS & HAFER, LLP
By: Randall G. Gale, Esquire
IDENTIFICATION NO: 26149
305 North Front Street
Post Office Box 999
Harrisburg, PA 17108.0999
(717) 255-7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
v.
Plaintiffs,
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
TO THE PROTHONOTARY:
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRAECIPE TO LIST
FOR ARGUMENT
Kindly list the Preliminary Objections of Defendants The Baltimore Rh Typing Laboratory, Inc.,
Margaret Brooks and Terry Houtz for Argument on the next term of Argument Court.
THOMAS, THOMAS & HAFER, LLP
By:
%andall G. Gale, Esquire
I. D. 26149
305 N. Front Street
P. 0. Box 999
:72083.1 Harrisburg, PA 17108-0999
CERTIFICATE OF SERVICE
I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for Defendants
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
individually do hereby certify that a copy of the foregoing document was served upon the
following by enclosing a true and correct copy in envelopes addressed as follows, postage
prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania, on the
day of ?? 1 1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
Reynolds & Haves P.C.
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
THOMAS, THOMAS & HAFER, LLP
Randall G. Gate, Esquire
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. SHERIFF'S RETURN - U.S. CER'CIFIED MAIL
CASE NO: 1999-05023 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
HINTON SUE ANN ET AL
VS.
BALTIMORE RH TYPING LABORATORY
R. Thomas Kline , Sheriff or Deputy Sheriff of
CUMBERLAND County, Pennsylvania, who being duly sworn according to law,
served the within named DEFENDANT, BALTIMORE RH TYPING LABORATORY I
by United States Certified Mail postage prepaid, on the 19th day of
August 1999 , at 1500:00 HOURS, at 400-402 WEST FRANKLIN ST
BALTIMORE, PA 21201
,
a true and attested copy of the attached COMPLAINT
The returned receipt card was signed by CAROLYN GREEN
on 8/23/1999.
Sheriff's Costs: So answers:
Docketing 18.00
i
Service ,00 ' j
Affidavit .00
Surcharge 8.00 R/.-7'}Taffl3?K171t7s,t y -
certified mail 5,43
X43-GATES/1999SOCIATES
Sworn and subscribe to before me
this J4, - day of LW G?
1991D.
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CmfbOle items t ar 2 for additional services .
' m . COmpmle name 3, 4a ae
and nu I also wish to receive the
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t as • Print your name an0 adtlreas an the reverse of this form so that we con return his exllo ing services (for an
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eturn geceryt Requesred'on the mmlpiece below the article number. 2. ? Restricted Delivery
= • The Relum Receipt will show to whom the emote was tlo1ive1e0 and the date
tleliveretl.
' 0 3. Article Atldressed to: Consult postmaster for lee n
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yping
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400-402 West Pranh
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Bal t i.more, MD ? 1 0 Express Mail ? Insured
El Return Receipt for Merchandise ? COD - a
7. Date of Delivery r
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By: (Print Name 8. Addressee's Address my it requested
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102595 98 8 0229 Domestic Return Receipt
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SUE ANN HINTON, individually and
JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian,
Plaintiffs
VS.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-5023 CIVIL TERM
THE BALTIMORE RH TYPING : JURY TRIAL DEMANDED
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, Individually,
and TERRY HOUTZ, individually,
Defendants
UH11FICATE OF SERVICE
1, Susan K. Candiello, Esquire, of the law firm of Gates & Associates, P.C., hereby certify
that I served a true and correct copy of the foregoing FIRST AMENDED COMPLAINT by First-
Class United States Mail, on the date set forth below, to the following Counsels for Defendants:
Andrew H. Briggs, Esquire
Post & Schell
240 Granview Avenue
Camp Hill, PA 17011
Michael M. Badowski, Esquire
Badowski, Banko, Kroll, Kronthal & Baker
101 Pine Street, P. 0. Box 932
1larrisburg, PA 17108-0932
Respectfully submitted,
GATES & ASSOCIATES, P.C.
S-usan Kay Candi o, squire
Counsel for Plat tiff.
1010 Mumma Roa , Suite 100
Lemoyne, PA 17043
(717) 731-9600
Dated: October 1) _, 1999
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SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
Plaintiffs,
V.
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARETBROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Defendants, The Baltimore RH Typing Laboratory, Inc, Margaret Brooks, Individually, and
Terry Houtz, Individually, certify that
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was
mailed or delivered to each parry at least twenty days prior to the day on which the subpoena is
sought to be served;
(2) a copy of the notice of intent, including the proposed subpoena, is attached to this
certificate;
(3) no objection to the subpoena has been received; and
(4) the subpoena which will be served is identical to the subpoena which is attached to the
notice of intent to serve the subpoena.
THOMAS, THOMAS & HAFER, LLP
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RANDALL G. GALE, ESQUIRE
305 NORTH FRONT STREET - 6TH FLOOR
P.O. BOX 999
HARRISBURG, PA 17108-0999
(717) 255-7648
ATTORNEY FOR DEFENDANTS.
THE BALTIMORE RH TYPING LABORATORY, INC.,
MARGARET BROOKS, Individually and
Date: ?? ?? l(y TERRY HOUTZ, Individually.
Randall G. Gale, Esquire
Attorney No. 26149
Thomas, Thomas & Hafer, LLP
P.O. Box 999
Harrisburg, PA 17108.0999
(717)255.7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
v.
Plaintiffs,
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
TO: Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Defendants, The Baltimore RH Typing Laboratory, Inc., Margaret Brooks, individually, and
Terry Houtz, individually, intend to serve a subpoena identical to the one that is attached to this
notice. You have twenty (20) days from the date listed below in which to file of record and serve
upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be
served.
THOMAS, THOMAS & HAFFEE?R.., LLLP
Lk ?r,r e'/ "
RANDALL G. GALE, ESQUIRE
305 NORTH FRONT STREET - 6TH FLOOR
P.O. BOX 999
HARRISBURG, PA 17108-0999
(717) 255-7648
ATTORNEY FOR DEFENDANTS,
THE BALTIMORE RH TYPING LABORATORY, INC.,
MARGARET BROOKS, Individually and
TERRY HOUTZ, Individ :lly.
Date: ?• ;?(-?9
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
Sue Ann Hinton, individually and
Jeremy L. Chubb, a minor,
by Sue Ann Hinton, his guardian,
V. Plaintiffs File No99-5023 Civil Term
No,
The Baltimore RH Typing Laboratory, Inc. at al.
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANTTO RULE 4009.22
TO: Cumberland Count Domestic Relations Office
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
any ana aii aocuments contained within th
Hinton and her son, Jeremy, against James
orders, notices reports, transcripts of
Also, any and all documents contained wit
1988 paternity action filed by Sue Ann
including but not im to to p ea 3ngs,
depositions, correspondence and test results
nincon ana jerem L. Chubb against James R. Chubb, including but not limited to, pleadings,
orders, motions, notices, reports, transcripts of hearings, epos t ons, correspon ence and
at Thomas Thomas & Hafer, LLP, P. 0. Box 999, 305 N. Front Street, test results.
Harrisburg, PA 17108-0999 (Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
wiln the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought,
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service.
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name Randall G. Gale, Esquire
Address: Thomas, Thomas & Hafer, LLP
305 N. Front St., P. 0. Box 999
1'arr4o rg O° 17108 0499
Telephone: (717) 255-7648
Supreme Court ID n 26149
Defendants, Baltimore Ah Typing Laboratory, Inc.
Attorney For: M'.4ar.,Br,,,ks individ,Ally and
Terry Houtz, individually
Date: /9iA
l Seal of the Court
BY THE COURT:
/J !J iXi4rr
Prothonotary/Cler , Civil Division
' e ty
(Eff. 7/97)
CERTIFICATE OF SERVICE
I, RANDALL G. GALE, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER,
LLP do certify that I served the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 on the
following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg,
Pennsylvania addressed as follows:
Susan Kay Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER, P.C.
101 Pine Street
P.O. Box 932
Harrisburg, PA 1 7 1 08-093 2
THOMAS, THOMAS & HAFER, LLP
RANDALL'G. GALE, ESQUIRE
Date: y ?'a?
CERTIFICATE OF SERVICE
I, RANDALL G. GALE, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER,
LLP do certify that I served the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A
SUBPOENA PURSUANT TO RULE 4009.22 on the following person(s), by depositing the same in
the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows:
Susan Kay Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER, P.C.
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
THOMAS, THOMAS & HAFER, LLP
RA ALL G. GALE, ESQUIRE
Date: /?
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument frt.
CAPTION OF CASE
(entire caption must be stated in fuill)
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBB, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,
(Plaintiff)
Vs.
THE BALTIMORE RH TYPING
LABORATORY, INC.;
ROBERT E. WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY; C.
AND TERRY HOUTZ, INDIVIDUALLY,
r: is
(Defendant)
No. 5023 Civil
J
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Lfg 98 c
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1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.):
PRELIMINARY OBJECTIONS OF DEFENDANT, ROBERT E. WENK, M.D.,
TO PLAINTIFFS'
2. Identify counsel who wi11 argue case:
(a) for plaintiff: Susan A. Candiello, Esquire
Address: 1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(b) for defendant: Lauralee B. Baker, Esquire
Address: BADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER
3510 Trindle Road
Camp Hill, PA 17011
3. I will notify all parties in writing within two days that this case has
been Listed for argurent.
4. Argument Court Date: Decembe;ORNEY 99
Dated- O 2
EE B. BAKER
FOR DR. WENK
"'
,.: a:
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C?
PRAECIPE FOR LISTING CASE FOR ARGUMENT
(Must be typewritten and submitted in duplicate)
TO THE PROTHONOTARY OF CUMBERLAND COUNTY:
Please list the within matter for the next Argument Court.
CAPTION OF CASE
(entire caption must be stated in full)
SUE ANN HINTON, individually
and JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian,
V5.
(Plaintiff)
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBRT
E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
(Defendant)
No. 5023 Civil Term 19 99
1. State matter to be argued (i.e., plaintiff's motion for new trial, defendant's
demurrer to complaint, etc.): Preliminary Objections of Defendants The Baltimore
Rh Typing Laboratory, Inc., Margaret Brooks and Terry Houtz to Plaintiffs' Amended
Complaint.
2. Identify counsel who will argue case:
(a) for plaintiff: Susan Kay Candiello, Esquire
Address: 1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(b) for defendant: Randall G. Gale, Esquire
Address: 305 North Front Street, 8th Floor
P.O. Box 999
Harrisburg, PA 17108-0999
3. I will notify all parties in writing within two days that this case has
been listed for argument.
4. Argument Court Date:
Dated: Arrorney--ior lletenoants'rne Baltimore RH 1'y
Laboratory, Inc., Margaret Brooks and Terry Houtz
CERTIFICATE OF SERVICE
I, Randall G, Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for Defendants
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
individually do hereby certify that a copy of the foregoing document was served upon the
following by enclosing a true and correct copy in envelopes addressed as follows, postage
prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania, on the
day of
1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowski, Esquire
Badowski, Banko, Kroll, Kronthal and Baker
P.O. Box 932
Harrisburg, PA 17108.0932
THOMAS, THOMAS & HAFER, LLP
Randall G. Gale, Esquire
?_ _,
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?- „? (J
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBB, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,:
PLAINTIFFS,
VS.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
DOCKET NO. 99 CIVIL 5023
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS. JURY TRIAL DEMANDED
O R D E R
AND NOW, this of , 1999, in
light of the Preliminary Objections of Defendant, Robert E. Wenk,
M.D., IT IS HEREBY ORDERED that:
(1) The Complaint is dismissed in its
entirety as to Defendant, Robert E. Wenk, M.D., as
absolute testimonial privilege applies;
(2) Robert E. Wenk, M.D., is dismissed as a
Defendant in this action for failure to state a claim
upon which relief can be granted.
Alternatively:
(3) Plaintiffs are ordered to file a more
specific pleading addressing the agency relationships
raised in the Defendant's Preliminary Objections;
(4) Plaintiffs, claims for "psychological
damages" are stricken for failure to conform with rule
of law;
(5) Plaintiffs' claims for attorneys' fees
contained in the ad damnum clause are stricken for
failure to conform with rule of law.
BY THE COURT:
- 2 -
MICHAEL M. SADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
LAURALEE B. BAKER, ESQUIRE
Pa. Suprame Court I.D. No. 58874
SADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER
A Professional Corporation
101 Pine Street
Post Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone: [717] 236-3200
Fax: [717] 236-6863
E-Mail: bbkkb@epix.net
Direct E-Mail: badowski@spix.nat
lbbaker@epix.net
Attorney for Defendant:
ROBERT E. WENK, M.D.
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBB, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,:
PLAINTIFFS,
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS.
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
DOCKET NO. 99 CIVIL 5023
JURY TRIAL DEMANDED
PRELIMINARY pgrFrmrOhT OF D FEh A
ROBERT E. WM M D TO PLAINTIFFS' O pr.ATNT
AND NOW, comes Defendant, Robert E. Wenk, M.D. ("Dr.
Wenk"), by and through his counsel, Sadowski, Banko, Kroll,
Kronthal and Baker, a Professional Corporation, and preliminarily
objects to Plaintiffs' Complaint and assigns the following
reasons therefor:
1. This is a professional liability action commenced
by Plaintiffs, Sue Ann Hinton, individually and as the guardian
of Jeremy L. Chubb, a minor ("Plaintiffs"), by way of Complaint
filed on or about August 18, 1999. A copy of Plaintiffs'
Complaint is attached hereto, incorporated herein by reference
and marked as Exhibit "A."
2. In their Complaint, Plaintiffs generally allege
that The Baltimore RH Typing Laboratory, Inc. ("the Laboratory)
was negligent in its interpretation of blood testing to determine
paternity, thereby causing financial and emotional distress for a
ten year period.
1. PRELIMINARY OBTrP-rTON TN THE K& n= OF A DEK RFR IIB II ram
TO PA. R. y. P. 1028(a)(4) (COURT avunTry*Tp
n
IS INSULATED FROM LrnurrTmv p t.rrrevD IIPOh nrrnr
NALPRACTICE).
3. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
4. In their Complaint, Plaintiffs plead that on or
about April 26, 1998, Judge Harold E. Sheely, of Cumberland
County Court of Common Pleas, appointed the Defendant to perform
the paternity testing at issue. See paragraph 5 of Plaintiffs'
Complaint.
5. In following paragraphs, Plaintiffs contend that it
was this court ordered blood test that eventually led to the
improper analysis of the blood samples resulting in the negligent
behavior.
6. As a result of the alleged negligent interpretation
of the court ordered blood tests, Plaintiffs seek damages for,
inter alia, financial support lost due to the negligent
performance of the court ordered blood tests.
- 2 -
7. Defendants ordered by the court to perform such
studies as a court ordered blood test are protected by absolute
testimonial privilege for communications made in connection with
judicial proceedings. Clodgo v. Bowman, _ Pa. Super. _, 601
A.2d 342 (1992).
8. As the court ordered the paternity blood testing at
issue, Dr. Wenk has immunity for any claim for tortious behavior,
including medical malpractice.
9. As Dr. Wenk is immune from liability in any court
ordered proceeding, this action should be dismissed in its
entirety against him.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court to dismiss the Complaint in its
entirety as to Defendant Wenk as he is immune from any liability
based on the facts as pled in Plaintiffs, Complaint.
II. PRELIMINARY OBJECTION IN THE NATURE OF A DE YR ER PURSUANT
TO PA. R. CIV. P. 1028(a)(4) (FAILUR TO PLEAfl Ny cAusE op
ACTION AGAINST DR WEN&)
10. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
11. In the caption of Plaintiffs' Complaint,
Plaintiffs name Dr. Wenk as a defendant in this matter.
12. Despite the foregoing, Plaintiffs' Complaint is
devoid of any facts which set forth a basis for a claim of
negligence against Dr. Wenk. In fact, Plaintiffs, Complaint
- 3
mentions Dr. Wenk only in the caption and the claim for relief
portions of the Complaint.
13. Moreover, in paragraph 3, Plaintiffs' Complaint
defines the Laboratory as "the Defendant." There is no other
defined defendant in the Complaint.
14. As a result, Plaintiffs' Complaint fails to state
a claim upon which relief may be granted against Dr. Wenk.
15. Pursuant to Pa. R. Civ. P. 1028(a)(4), the
Complaint against Dr. Wenk must be dismissed in its entirety for
legal insufficiency.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court to dismiss the Complaint in its
entirety as to Defendant Wenk.
III. ALTERNATIVE PRRT.TMTNAVV nn.Tfanmrnv r.. _-
AGENCY £ .ATIONSHTP)
16. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
17. In Count II of their Complaint, Plaintiffs contend
that the "staff and the employees" of the Laboratory "were the
agents, ostensible agents and/or agents by estoppel of the
Defendant."
18. Count II further indicates that the staff and
employees were acting within the scope of their employment with
the Defendant.
- 4 -
19. Plaintiffs' Complaint does not specifically allege
which agents, servants, employees or workmen were allegedly
negligent.
20. It has been held that a complaint must not only
give the defendant notice of what the plaintiffs claim is and the
grounds upon which it rests, but also must formulate the
issues by summarizing those facts essential to support the claim.
Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974).
21. At the very least, plaintiff must allege facts
which:
(1) Identify the agent by name or
appropriate description;
(2) Set forth the agent's authority and
how the tortious acts of that agent fall
within the scope of that authority.
Alumni Association, et al. v. Sullivan, 369 Pa. Super. 596, 535
A.2d 1095 91987).
22. Without further facts to substantiate the identity
of the "staff and the employees, agents and/or agents by
estoppel" referred to in Count II of Plaintiffs' Complaint, the
Laboratory is without notice as to what Plaintiffs' claim is and
the grounds upon which it is based.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court to strike Count II of
Plaintiffs' Complaint or, alternatively, direct the Plaintiffs to
file a more specific pleading addressing the identity and acts of
- 5
the "staff, employees, agents, ostensible agents and/or agents by
estoppel,, so as to adequately inform Dr. Wenk of the factual-
issues and theories of liability he must be prepared to meet in
his defense at trial.
IV.
23. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
24. In paragraph 41, 42 and the ad damnum clauses of
Plaintiffs' Complaint, Plaintiffs claim that the Plaintiff-Mother
sustained damages arising out of psychological stress and trauma.
25. Likewise, in paragraph 43, 44, 45 and the ad
damnum clauses of Plaintiffs, Complaint, Plaintiffs contend that
the Plaintiff-Son sustained damages arising out of psychological
stress and trauma.
26. Contrary to Pennsylvania Rule of Civil Procedure
1020(a), Plaintiffs have failed to set forth the cause of action
for psychological trauma "in a separate count containing a demand
for relief."
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court dismiss paragraphs 41 through 45
of Plaintiffs, Complaint as well as the references to
psychological damages in the ad damnum clause of Plaintiffs,
- 6
Complaint for failure to comply with Pennsylvania Rule of Civil
Procedure 1020(a).
V.
27. The averments contained in the foregoing
paragraphs are incorporated herein by reference as though set
forth fully at length.
28. In the ad damnum clauses of Plaintiffs'
Complaint, Plaintiffs seek damages of "attorneys' fees and
costs. 11
29. Attorneys' fees are not permitted as an element of
damages absent an expressed statutory authorization, clear
agreement given among the parties, or some other established
exception.
30. Nowhere in Plaintiffs' Complaint is there any
fact alleged establishing that Plaintiffs are entitled to
attorneys' fees pursuant to any statutory authorization, clear
agreement among the parties, or some other established exception.
31. Accordingly, Plaintiffs' claim for attorneys'
fees must be stricken in its entirety.
WHEREFORE, Defendant, Robert E. Wenk, M.D., requests
the striking of any claim for attorneys' fees contained in the ad
- 7
damnum clauses of Plaintiffs, Complaint pursuant to Pa. R. Civ.
P. 1028(a) (2) and/or (4).
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
Dated: Yg?G,,,1?,=/7? 1999 By4MILEL 4d ?t
M. BADOWSKI
EE B. BAKER
Attorneys for Defendant,
ROBERT E. WENK, M.D.
8 -
Exhibit A
09/10/99 FRI 08:20 FAI 1 310 785 1870 MEDICAL llI"ICAL
SEP-01-1999 10:59 BALTIMORE RN TYPING LAB
410 383 0938 P. U/12
SUE ANN HINTON, individually and s IN THE COURT OF COMMON PLEAS
JEREMY L CHUBR, a minor, : C IBERLAND COUNTY,
by SUE ANN FMCMN, his guardian, : PENNSYLVANIA
Plaintiifb
VS.
TEE RALTIMORL RE[ TYPING
LABORATORY. INC:,
ROBERT L WENIC. M.D., individually,
MARGARET BROOKS, iodividuagy,
and TERRY LfOUZ, tadHiduaU77
Defendaa>s
s CIVIL ACTION -LAW
: NO. ?_ ?DoZ? Cw.i.?S TeI'sY1
JURY TRIAL. DEMANDED
You have been sued in court. If you wish to defend against the claims wet forth in the
following Page. You must take action within twenty (20) days after this complaint and notice am
served, by crowing a written appearance personally or by andmey and filing is writing with the court
your defenses or objections to the claims set forth against you, You are warned that ifyou Pau to do
so the case may proceed without you and ajudgmantmaybeentered against you bythe court with=
further notice for any money claimed in the complaint or for any other claim or relief requested by
the phsintiX. You my low money or property or other tights itnportatn to you.
YOUSHOULD TAKE TMS PAPERTO YOURLAWYER AT ONCE. IF YOUDO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
CarlWk PA 17013
(717)249.3166
TRUE COPY FPCh1 RECORD
in Testimony arar eof, Isere unto se! my hand
and tie suet of Red Ctrs at ca We. Pa.
rpi In day l s J Il
G1?i11 Mc.
Pmftnotisy
0002
09/10/99 FRI 08:20 FAX 1 110 785 1870 MEDICAL NPIL'AL 1M003
SEP-01-1999 10:59 BALTIMORE R11 TYPING LAB 410 383 0979 P,OL'Lt2
S" ANN EDITMN, individually, sad : IN THE COURT OF COMMON PLEAS
JEREMY L C =11, a minor. : CUMBERLAND COUNTY,
by WE ANN HINTOA? his an, . PLNNSYLVANIA
V5.
TIE BALTIMORE RH TYPING ` CIVII. ACTION -LAW
LABORATORY. INC., : NO.
ROBERT E. WENIC,IILD., individaaUy, :
MARGARET BROOKS, individna4,
and TERRY HOUTT., lad vidua9y,
Defendants
AND NOW, Como the Plaintiffs, SUE ANN IMJTON, lndivu aally and IFRr'1viY I..
CHUM, a minor. by SUE ANN mWTON, his guardian, by and through their attomeye, Gates &
Associates, P.C., and respectfl111y rgx=eata as follows:
1. Plaintiff SIDE ANN HINTON (hereinafter referred to as 'Plainfiff Mother'), is an
adult individual resi&S at P.O. Box 3708, Harrisburg Dauphin County,
Conunonweahh o0ennsyhrania,17115.
2. PWati$ JEREMY L. CHMB (her ims ra&rred to as ` platati $Soa"), is a minor
child residing with Plaintiff Mother at P.O. Box 3708, Harrisburg, Dauphin County,
Coaaaoowealth of Pennsylvania, 17115.
3. Defmdan; THE BALTIMORE Rg TYPING LABORATORY, INC,. hcrrJr:aiiS
mft ed to as Me&cdatt"), is a Maryland Corporation, registered and doing
business in the state of Maryland, at 400.402 West Frm&liu Street, Bahi=re,
Maryland, 21201.
09/10/99 FRI 08:20 FAX 1 110 785 1670 MEDICAL ll17CAL 2001
SEP-01-1999 11:00 BRLTIMCRE RH TYPING LAB 410 383 0938 P.04/12
4. Defendant's resident agent and business addttas for the resident agent is, pH17.M
J. G=STEIN, resident agent, 400 wear Franklin street, Haltimeta, Maryland,
21201,
5. On or about Apr1126, 1988, Judge Harold E. Shealy, of Cumberland Couary Court
of Common PWA4 Appointed the Dcfbnd= to perform Red Cell and FJJ.A Blood
Grouping Tests on the PlaintwMuthm, PlainWSon and James IL Chubb.
6. On or about July 12 , 1988, the Defendant performed these various blood tests of
which Red Call and HLA tests were two (2) of several tem perihr mad.
7. The Defendant performed thins various blood tests upon samples of blood from the
Plaintiff Mother, Plaintiff Son and the father ofPlaiatiff Son, James R. Chubb.
8. On or about July 12, 1988, the Defends= produced a written report ofthe results of
the various blood tests, as stated in paragraph 6 above, which the Defendant
performed upon the blood samples of the parties, as stated in paragraph 7 above,
9. The written report stared various specific tests results and than suntmarind the test
results by stating:
"On the basis of these testa. (Cbubb,.Jsmes IL) can be mtcluded
as the father of (Chubb, Jeremy L.) for the following ressoar.
1. The child has a genetic marker (A33) in the HLA system
which is absent in the mother and cannot be demo ad in the alleged
fatber.
2. The child has a genetic marker (814) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
09/10/99 FR-1 08:21 FA.T. L A0 185 1670 )EDICAL lIC'I'CAL IM 003
SEP-e1-1999 1100 BALTIMORE RH TYPING LAB 410 363 0938 P.05i12
t?LhfTT."
10. As a direct result of the written report provided to Judge Shealy, by the Dafkadact,
Judge Shady issued an order on July 19, 1988, disadaaiog the Plabldff Mother's
complaint for support based upon the Defendant's statements and their test results
which excluded Jame R. Chubb as the possible father of Plaintiff Son.
11. Plaintiff Mother telephoned the Detl ndam on several occasions, stating with
conviction, she ]mew lamas R Chubb was the father of her son and asking whether
the Defendant might have made an error in their tests.
12. The Defendant stated the same answer to the Plaintiff Mother each time she
telephoned the Defendant, "The tests results are correct, they never make
mistakes".
13. On or about 1996, Plaintiff Son was diagnosed with a serious neurological disorder,
Touretto Syndrome.
14. Ptamsiff Mother never stopped behaving the Defend= had made an error in their
tests, but Plaice Mother had no objective proo4 nor the ability to obtain such proof
until Plaintiff Son developed Tourette Syndrome, which empowered PlaindTlolother
with the additional support needed to resume the legal action toidemifythe biological
father ofPlaintiff Son
15. The physicians and therapists of the Plaintiff Son needed the medical history of the
Plaintiff Son'sfatherto aid them mthereeessaryandptopertreatmem ofthePlaintiff
Soo.
16. Plaimiff Son also wanted a formal adjudication and detetmmatien ofthe identify of
09/10/99 FRI 08:21 FAX 1 210 788 1870 MEDICAL NL'TCAL Zone
SEP-01-1999 11100 BRLTIMCRE RH TYPIt,6 LAB 410 383 0938 P. W12
his father to obtain the 0010tioaal fulfillment and psychological ratisfaetion to fill the
void which had been mused by not (mowing the true idmttfy of his father
17. March $ 1998, Plaintiff Mother filed a second support Action agahtrt James P
Chubb, but this support action was denied based upon the Defeadaot'a report ofthe
test aeutks which were performed by the Defendant and reports d to judge Sheely on
July 12, 1988.
18. March31, 1998, upon a SlingofaMotion fbrReconsideradonoftheMarch 2, 1998
decision, a Rule to Show Cause was issued upon James R. Chubb, to submit to
additional tens to determine the peternhy of Plaintiff San
18. December8,1998,Plaintiff 0thw, Plainti$SonandJamesR. Chubb provided blood
samples to be utiDzed in fiurther tats to be done by, Mcm Diagnostics, A Liiiecodes
Compsoy.
19. Micro Diagnostics performed DNA testing upon each of the individuals identified in
paragraph 18, the resuhs ofthe tests indicated James R. Chubb could not be excluded
as the Plaintiff Son's biological fatter,
20. MicroDiagnosdcs Performed the ISA testm& which bad been previously performed
upon the PlaintUMother and James R Chubb, by the Defendant in 1988.
21. The RLA test reattits which Micro Diagnostics performed upon the Plaintiff Mother
were the same as the DeSwdam had obtained when doing these tem in 1988.
22. The HLAtestresuits which Micro Diagnostics performedupon James R. Chubb were
totally dwff rem.
23. The HLA test results which Micro Diagnostics performed could not exclude James
08/10/98 FRI 08:21 FAI 1 310 785 1870 31EDICAL YOTUAL 0007
SEP-01-1999 WOO BPLTItbRE RH TYPING LAB 410 383 09M P.07/12
K Chubb u the biological fistber of the Plaiadff Son.
24. Mcra Diagnostics test results indicate a 99.99% probability of pu mity ofPlalntiig
Son by James R Chubb.
25. Plainli$s now Me this civil complaint to begin this lawsuit in Cumberland
County, Pennsylvania.
COUNTI
.? 31" 0 CvjAU?&Vd 1) x s.? . e[+? a
TYPING LABORATORY. INC.
26. Puagraphs 1 through 25 of this Complaint at hereby incorporated by zzI cc.
27. The Defendant holds itself out to the public u a laboratory with the knowledge,
stall and experience necessary to peafatm those special blood tests needed w
aeeurately determine the biological parents of children.
28. When offering the service, stated in puagtaph 27, to the public the Defendant
accepts great and signMc= responsibility. When the Defendant agrees to
perfbrm tests to dmmiine the biological patents of a cbA the test results affect
every aspect of the parent and child's lives.
29. The outcome of the tests which the Defendant performs aE= the pare= and
child's life psychologically, physically, financially and socially.
30. The Defendant aueptcd the responsibility to detaaane whether James R Chubb
was the biological Pether of the Plaintiff Son
09/10/99 FRI 08:22 F.1I 1 410 785 1G70 MEDICAL WXAL Zoos
SEP-01-1999 11,01 BALTIMORE RH TYPING LAB 410 383 0938 PAV12
31. The Defendant performed various tests, including Red Cell and HL ,%, upon the
blood samples of the PlalntffMothw, PLdadff Son and James R Chubb.
32. The Defeeodant provided results of these tests to the Cumberland Coumy Court of
Common Pleas, with the unstated, but undedylmg implication than tern were
wrrcre and reliable.
33. Despite Plamdff Mother's repeated efforts to question Defendant's tat rem ft the
Defendant never took any action to review or question their own test readts.
34. Omdy after Plaimiff Son developed a serious medical condition which trade it
crided for the medical history of Plaintiff Son's fBtber to be discovered end
PlaiatifrMother's personal knowledge of the identity of the biological father
coupled with her stubborn perseverance within the legal system, were additional
tests performed which revealed the false results firm the tests which the Defendant
performed..
35. The Defendant was negligent in failing to meet the duty which it had undertaken to
the PlaintiffMother and Plaindff Son to comedy and acammtely determine
whether James R. Chubb was the biological . fa her of the Plaintiff Son.
36. The Defendant was negfigemn in &Mtg to meet the duty which it had to take all
meccseaty action and pretwrdoas in the performance of these tats to insure the
test results were reportad accurately.
37. The Defendant was negligent in failing to take any action in response to the
Plaintiff Mother's repeated statemems that the test results which the Defendant
reported were incerreet.
_ 09/10/88 FRI 08:22 FAX 1 410 78S 1870 HEDICA1. MMAL X008
SEP-01-1999 11101 BALTIMORE RH TYPING LAB 410 3B3 0938 P.09/12
38. As a direct and pmxitttate result of the Delbndaat's negligence, plaintiffMother
suffered the social label of an unwed raather with a child of an ualmown f ulm.
39. As a direct and pmxiamte result ofDehodant's negligence, Fix Mother
suffered great embanusmeat and humiliation from frieads and cdstlvm as a restdt
of the tae results ind;catiag she had been sexually involved with awther tarn, in
addition to, James R. Chubb.
40. As a direct and prosfmste result of the Defendant's negligence, Plakaff Mother
suffered substantial Anandal difficuitiee, as a result ofthe toss of the biological
father's additional financial support in raising plaintiff Son.
41. As a duvet and pmxitttate result of the Defendant's negligence, PlaintaMother
suffered substarylial psychological stress as she had to cope WON with the tasks of
parenting a son and in addition to that a son who was diagnosed with a serious
42. As a direct and pmidmate result of the Defendut's negligence, PIainriffMatber
had to endure the fnlsaadon and anger as she fought the legal system to prove that
Janus It Chubb was the biological thther ofPlaitaiff Son.
43. As a direct and proximate result of the DdhWam's aegGgewe; Plaintiff Son
tal2nd the social embarlassmmn and bumLliation of not having a fatber preseot in
his life.
44. As a direct and proximate result of the Defendant's negligence, Plaintff Son
su>$red the social embarrasemmt and hum istion of not even knowing the
identity of his father.
_01L10/99 FRI 08:22 FAX 1 110 785 1970 MEDICAL WrUAL 2010
SEP?il-1999 1101 BALTIMORE rhi TYPING LAB 410 783 0938 P. %V12
45. As a direct and proximate result of the Defendant's negligence, Plaiacff Son
%953 red the psychological trauma and depravation vA ieh occunsd from the
absence of any imwm father figure in the Plabuiff Son's life.
WHEREFORE, Plaintiffs SUE ANN MNTON and JEREMY L CHUBS respecdWly
request[, this Honorable Court to enterjodgemew in their &wr against the Defendants,
BALMMORE RE TYPENG LABORATORY, ROBERT L WEM M.D., individual[,,
MARGARET BROOKS, individually and TERRY HOUTZ, individually, for damages in an
amount exceeding 535,000.00, for damages past, present and futum; medical expenses, pain and
suffering, psychological stress and trauma; attomaye fie; and costs; and for such further and
additional relief v this Honorable Court deems just and proper under the draimstan =
COUNT EL ACTION AGAWT
BALTIMORE RH TYPING LABORATORY
FOR VICARIOUS LIABILITY FOR ACTS AND
OMISSIONS OF STAFF ADD E11tPLOYEE3
46. The averments of the foregoing paragraphs 1 through 45 are inemporeted herein
by reference.
47. At all times relevant tiemo, the staff and the employees were the agents ostensible
agems and/or agents by estoppel oftho Dekadant
48. At all times relevant hereto, the staff and employees were acting within the scope
of their employment and/or agency with the Defendant, with the permission and consent of the
Defendant, subject to the control of the Defendant, and in furtherance of the Defendanes interests.
49, The Defendant is vicariously liable ibr the damages caused by the negligent
conduct of the staff and employees as more particularly described herein.
09/10/99 FRI 08:23 FAX 1 410 785 1870 11EDICAL RLTUAL Q011
SEP-01-1999 1101 BPL.TIMOFtE W TYPING LAB 410 383 0938 P.11/12
W H WMEFORE, Plaintiffs SUE ANN RMTON and JEREMY L aWn
respccWY requests this Honorable Court to aetar judgement in her favor and against the
Defendant, BALTIMORE RR TYMG LfeORATORY, ROBERT E. WRNX XD.,
IndividoallY, MARGARET BROOKS, individua0y and TERRY ROM indlvidaaly, for
damages is an amount exceeding $35,000.00, for 41=88as past, present and future; medieal
axpemes, pain and mfrhing, Psychological stress and trauma; aitorneys'tees and costs; and for
such further and additional relief as this Honorable Court deems just and proper under the
chmmstances.
Aespeetil.4 submitted,
Gates & Associates, P.C.
DATE: August T? 1999
'Santa Kay Cori fitquim
ComiselforP LTHWIS
Supreme Court o. 64998
1013 Mumuna Drive, Suite 100
Lemoyne, PA 17043
(717)731.96M
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Harrisburg, Pennsylvania, first-class
postage prepaid, on the , day of Zt Ii 1999, and
addressed as follows:
Susan A. Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Counsel for Plaintiffs)
Randall G. Gale, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(Counsel for Defendant, The Baltimore
RH Typing Laboratory, Inc.)
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
By•
Se retary
it
1 ? ?' ? T
y
JLL ? :ti?
U 4^ °_i
cn CJ
Randal G. Gale, Esquire
Attorney No. 26149
Thomas, Thomas 8 Hafer, LLP
P.O. Box 999
Harrisburg, PA 1710"999
(717) 255-7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
Plaintiffs,
V.
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARETBROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF
DEFENDANTS THE BALTIMORE Ph TYPING
LABORATORY, INC., MARGARET
BROOKS AND TERRY HOUTZ
AND NOW, come the Defendants The Baltimore Rh Typing Laboratory, Inc., Margaret
Brooks, Individually and Terry Houtz, Individually and file these Preliminary Objections to the
Complaint of Plaintiffs Sue Ann Hinton, individually and Jeremy L. Chubb, a minor, and Sue Ann
Hinton, his guardian.
DEMURRER
1. This is an action in which the Plaintiffs have sued the Defendants The
Baltimore Rh Typing Laboratory, Inc., Margaret Brooks individually, and Terry Houtz
individually, for providing allegedly incorrect paternity testing results pursuant to Court ordered
testing.
'tV
1
2. Plaintiffs allege that they lost their paternity action in Cumberland County Court
based upon the allegedly negligently performed Court ordered paternity testing.
3. The substance of the suit is that communication of false information in a
judicial proceeding resulted in Plaintiffs losing their paternity case resulting in financial harm
and mental distress.
4. The law recognizes an absolute testimonial privilege or judicial privilege from
suit for the supplying of false information in the context of a Court case.
5. Absolute testimonial privilege or judicial privilege precludes this medical
malpractice action: Clodao v. Bowman, 601 A.2d 342 (Pa. Super. 1992); also see, Clodao v.
Bowman, Dauphin County Civil No. 2606 S 1985, Opinion and Order of August 20, 1990 per
Judge Natale. (copies attached).
WHEREFORE, the Plaintiffs' Complaint should be dismissed for failure to state a claim.
THOMAS, THOMAS & HAFER, LLP
By
Ran • Gale, Esquire
Attorney ID # 26149
305 North Front Street, 6`h Floor
P.O. Box 999
Harrisburg, PA 17108-0999
(717) 255-7648
:72026.1
® R zd 5RR1ES Circamvent w
? t} \C REpat R goch detense, dAccordmol a
IX4 44d r.
6a1 brinK se o{ Ru\ecourts 5tngmK ative
11emq and aEGrm $.ry
3d? pa q?uit9 mt¢yet otl? be r attrt0 tot,"
the 0( the We M%& x
cthel p, 9,1ots an ? qr?u\n;?m"LiIA \tet f flrmld' ;a
to the atoo '00ettsdsc?uo 2.1 u Sme?n.t o"
cunrtdtdnterthim• Coon Lercla n 35-
i{a1 uQaep Stoll 4fo?1? p
a44e Il
1e es unluChrysier wnj1edun , atiR e d Na4 '.
2X to qe 4Pe11ang bgntyaUyntil a{bter theOlue uli p by bis ?OOGOaand , k
NS 2. Ito DJ?tranl Guardia ` )oan right } P4¢llan
eoce, ea. $OuIA be as that Chrysler
lyre perry w
Of the P tontend ¢ tovec or inadent Glod6o v. Anrrisbnr6„ r
?npplst1Y 12amA also the ttvtgheis eo lter• S. gpVY'd-bur8 HosPirnX matalo'?
I o to w
to the cret ea , facts 9' rgtheeParties tooter. A A°°P gartisbutnrrisbu BA°spt? 4
theallet; U1red ofte Ve Such uwt*fe t°rtG¢uter. and tho\o6i.
claim Oct { the tn0ert¢d u ag6nk N.A• 67 anent of pa pennsYlvania la.
d1tcannot See Jtetton cer Part uperiOC mart o{¢ 11,1991. 1
acti
coo
to Jas p4e\tan? unlthtve damdg¢s• P t?t? jan. 9,1992• y°
t;1 asserts c Uar tsr peg made arA the er indiv daal caF
claitt'.ica111, sp entat'ons to {orec\ose, u other. both nataral gua ac ? -tv 'x
M.Orevres L, 1 atecthe aler wat ? seths 60 5 Tore• nd her ra4 'taeycal `4a lobo a=
*at ctri
. tea f 4 n a hY chos? ild rt court
{ ?11fu a tox is CO a'te' st?coVei n, ti S14990 °g 4a?ra
1i {a llal tbs for
Qe ea ldt' 11an u for ce
o{e' dnr Bhp o We damagmag 5 a - due mb1°od test cou ouart of ? Mon Tiel
r 2t
l inn tit ¢ panTpae t of ?¢ t ` derOd?yng. ¢ Gi'A Dt s %o enaavt9
a44e1hnLtheet0 ° 4 recedmpartgot op?tthe 8,htlatale. )'onatn a4Peaed to pro' w
le e4 ir? hich me fmd riot o4 ethe mottB? a0 u, stag limes dint, nd n 05isrgarr sh we. COTOP
d2rits
the nnot 2. we1?1. nts roan Su4eo°r co d fat deteon hl ptlvil
co rt?unterclan sd 1, ap?Y a44¢lbn><' Aester,bv'absolute aae to cOov ectl
to 5 n2a oft traudol ter n ommanicar esedm8s_
In °the t
a{{u native eeoses
Opel, and 11\y. des t ludic lfirtaed•
- . 0o, ot Veots uRR
reseov ale no
l r. AOO
t It wo er'a the 9 tgtrotatl? aftutn ° tai 1. )u gol ?5udical PrOCe¢dir
ar?
" 1. ever, it '' a too
od a44¢l more than enter uci4ants n 1
tstal court be oothmB of tbea iclaots to
tenses to coz%inol,,o allor+ a44e
meats We agree'
•r chin's' -.9299
CLODGO BY CLODGO Y. BOWMAN Pa. 343
)uld circumvent the Caa m 601 A.2d 34 ih5ap. IMI
. Accordingly, weo applicable to communications relevant and lost due to negligent performance of a
striking of appelz3 pertinent to those proceedings, insulates court-ordered blood test conducted during a
nd affirmative deC 'r court-appointed expert witness from liabili- paternity proceeding by appellees, Robert
•i1 ty premised upon medical malpractice. S. Bowman, M.D., Harrisburg Hospital,
.;'.1 •J. Judges ¢>36 Harrisburg Hospital Laboratories, Harris-
i•a Witness in judicial proceeding is abso- burg Hospital Hematology Center, and
Harrisburg Hospital Department of Pathol-
lately protected against any civil action
ogy
that is premised upon communications that . Since we conclude that the grant the
t srsrt"
demurrer properly rested upon the applica-
course pertinent
are unent dicial and relevant proceeding; and such made a in n tion of the immunity afforded witnesses in
j privi- ]udic
lege is not limited to defamation and rjudicial proceedings, we affum.
its Mother and Nat-
CLODGO and Jill
i right. Appellants,
. M.D.; Harrisburg
-g Hospital Labora=,
Hospital Hematolo}
r isburg Hospital De=
ogy.
f Pennsylvania. -
a 11, 1991.>
9, 1992. a'
tr individual capacity*
natural guardian of
al malpractice action
3pittl, and laborato-,
:ild support she lost'
ormance of courtor-*s
cted during paternity,.
rt of Common Pleas;:
Division, No. 2606 S;
:ced defendants' pre.
nature of demurrer-
nther appealed. The`.
;88 Harrisburg 1990,
ifendants were pro-
timonial privilege for.
• in connection with,
:ial privilege for par
roceedings, which is i
ed actions.
3. Judges Q---36
Absolute testimonial privilege for com-
munications made in connection with judi-
cial proceedings precluded mother from
bringing medical malpractice action against
physicians, hospital, and laboratories to re-
cover for child support she lost due to
negligent performance of court-ordered
blood test conducted during paternity pro-
ceeding.
Donald L. Jones, Middletown, for appel-
lants.
Randall G. Gale, Harrisburg, for appel-
lees.
Before TAMILIA, POPOVICH and
HESTER, JJ.
HESTER, Judge:
Jill Clodgo, both in her individual capaci-
ty and in her capacity as natural guardian
and mother of Dustin Clodgo, appeals from
the August 20, 1990 order granting prelimi-
nary objections in the nature of a demurrer
to her complaint Appellant instituted this
action to recover for child support that she
1. Appellees performed the tau for the court
pursuant to the Uniform An on Blood Tuts to
Determine paternity, 42 pa.CS. §§ 6131, er req.
Section 6133 of that Act provides:
§ 6133. Authority for Test.
In any matter subject to this subchapter in
which paternity, parentage or identity of a
child is a relevant fact. the court upon its own
initiative or upon suggestion made by or on
behalf of any person whose blood is involved
may, ... order the mother, child and alleged
father to submit to blood tests;....
Section 6134 of that act provides in relevant
part that the 'tests shall be made by experts
On April 13, 1982, appellant filed a com-
plaint for support of her minor son, Dustin,
in the Court of Common Pleas of Dauphin
County against Gregory Johnson. On No-
vember 1, 1982, the court ordered HLA
Blood Tissue Typing Tests for appellant,
Dustin, and Mr. Johnson at the Harrisburg
Hospital Blood Bank.' On November 19,
1982, appellee Herbert S. Bowman, in a
letter to the coum stated that he had con-
ducted the tests and determined that Mr.
Johnson could be excluded as Dustin's fa-
ther. On November 24, 1982, the court
dismissed the paternity suit against Mr.
Johnson.
Appellant filed a second complaint for
support in the same court against Michael
Durbin on February 24, 1983. Once again,
the court ordered mother, child, and the
alleged father to undergo an HLA Blood
Test at Harrisburg Hospital. Dr. Bowman
conducted the tests and reported that Mr.
Durbin could be excluded as Dustin's fa-
ther. That support action was dismissed
by the court on October la, 1984.
After the second suit was dismissed, ap-
pellant, who is a registered nurse, com-
pared the results of the two blood tests
performed by Dr. Bowman and noticed that
qualified as examiners of blood types, who shall
be appointed by the coon. The experts shall be
called by the court as wim, to testify to
their findings and shall be subject to cross
examination by the parties Section 6136 of
the Act governs the effect of the test results and
provides that "the conclusions of all the experts
as disclosed by the evidence based upon the
tesu are that the alleged father is not the father
of the child, the question of paternity, parentage
or identity of a child shall be resolved accord.
ingly. If the experts disagree in their findings
or conclusions, the question shall be submitted
upon all the evidence.'
344 Pa. "a In a?teOn she brought hetwo k cs4 oM'f ? REPORTER. 2d SERIES
on of diacr red.
OCt?on repor?todethatto ourt,he sent a clan a Calymalpf/5 bibty premsed upon M
r. Bow J ho nsoU01f test hresults I properly necgrtl ? eonMusi. t current Caselaw nstrained to
the fathe and erroneously In the C a lade
,Use d A''m'Vfr, civil a 4o absotute(y s in a - dcsls the
Pro r
Appellant as cations that that protected premised again
suit a insdtated a at are Pnn cat aoy
d 985. onsP, bn, Joh isoo ono Januaternity aanddthat the i? g.° na judr?. ?leevva emu d .
.< planation the suit without 1985, the coup t action. typrotectsa ding .
lion apparent, for its decision, giving any er_ The Paraftiele PPellees 1, ou the ac were Out,. "s Of tion of the doctrine o edaotn theappl?e• V. Afend, InedbytheSupre?etcial ARVi1e$e
y was On August 6, 1985 rs judteat4 35j (1986), $10 pa. 213, 220 7
, court in post
+i medlr nt statesuaey ga, i istt3 Pellees? de37 S7 f 7 (1967? 427gpa S7r1 5?23 Aetry? malprace i
ages e Of actl en at and i Pretimtnar}Po oho ?Duat ° roAPpe1? asodamor thetions u d etments menu o u rs, claimin jecyors t?led argument Pleadings or ' the c,,,p ctaun a 9 that nat aPPellaut had failed to lamt a cl nen relevant and en of a cue are 1p,:
her July 29 ,86 aga °s31r not ealuustutei8 Thskme anq ° m. no an7 kart f ts?h
lant f, the 11S V to f"n r. J
bi al cc Un. Urt eti?n ted On
couOn Judwhh ie p e issu edPme? t m or
open a in)-tw,
M
.f i support action rt nent and gs and t+ge ot"
ing outcome of is
action was stay against sought." Mattel to the wl"ch are Perti:
m Appellant filed tthsh t action, ed Pend. 355 (emFhasd, 510 h at es or rebef
S Which Petition tion falls °mi?d). If 007 Ltd at
d February was granted by the °Pen judg, will lie" fowtbm that Cate the common ?.
we that decision, ad on Mr. Johnson=apepttrt 507 A.2d at j54 communication, fd action. man, di - Appe rev Decem at
Isl<
Pa due
ra dgtneat c uldCent9 that leis rroretheerro?tli$ Ila'maa`sounforgiy'?w.8 . In 1.987P ble e Dr. BO
opened
P con the petition PPellaat's faiture not be re- ttS9iC t'eutosta 47ggered this s
o?D mefCour al gent. t the present case
rtlof p cedOf appeal ppethl ntse rt ornzation ? m4 onnoere is no daub tii
the erm
ecember I5. 1988?ylvania was deni de father was made age. or' Johnson
asn Vie' 31 ta'een the a current civil suit r court an 9 It was made of a jttdity
thine nt? appellee,` prelim' o mat Court then relev s orderhttther, and Pursuant to tl?e
-re tion of th of a demurrert6 r3'd bleetions in in the ac to the paterii. was material apd us, w
for ith `'ommun' I? testimonial p?Piltca er the Privdege does we trust se coat a uethe fac ;
this
lowed. dThe sue 93 d T is 3PPealc oe ne P etic. that et instead o f cth) f rv solei Ue to
Le testim 'Presen ted is w Cher e ti0p• a l med mat
Pants I 00 121 Privilege he beI or
n le dei
cations relevant Proceedings or, pare ' dres ?ttseil the immunity CIE) issue amatfon`:
c
eedings nsu?tesndPert rent to t}tose Pro- amati on and t often in the con as been ad.
4t court., rely text of
PPOinted ex the relevant red actions, def-
pen elude tha[ thefo onty co Pell uaeview
°f to c0ii.
rm of the act on is h"
.iced upon medi-
constrained to
law compels the
n a judicial pro-
cted against any
upon communi-
.nd relevant and
iicial proceeding
ects appellees in
udicial privilege
me court in Post
u, 507 A.2d 351,
xberg v. Aetna
:, 514, 235 A.2d
aged libelous or
:ements, or alle-
pleadings or in
case are pertf-
to any issue in
cil liability for
mphasis added).
communications
!gular course of ,i
vhich are perti-."..
•edress or relief
21, 507 A,2d at
the communica-
:cry, "no action
:ion. Id at 218,
t, not Dr. Bow-
:an's unforgiva-
;gered this ser-
re is no doubt
the erroneous
Johnson as the
rse of a judicial
directly to the
pursuant to a
as material and
lestion at issue
it decide wheth-
ily solely due to
or medical mal-
or defamation
_ has been ad-
context of def.
. our review of
els us to con-
action is irrele-
CLODGO BY CLODGO v. BOWMAN Pa 345
Cale r W1 Aid No I?._4„ H4r1
vant to its application. Broum v. Delaware judicial proceedings and was material and
Valley Transplant Program, 372 Pa.Su- relevant to it, the privilege applies. Thus,
per. 629, 539 A.2d 1372 (1988), is instruc- while we agree with appellant's premise
live. There, a gunshot victim was discover- that this action is not premised upon def-
ect and transported to a hospital. The vic- arnation but is a medical malpractice action,
am, who had no identification, was de- this does not alter the conclusion that the
clared brain dead, and the hospital sought privilege applies.
court permission to use his organs fo
transplants. The defendant at issue i
in
Broum was the attorney who prepared th
documents needed for court approval for
the organ extraction, which was subse-
quently performed by hospital personnel.
The victim's family sued for mutilation of a
corpse, intentional infliction of emotional
distress, civil conspiracy, malicious use of
process, assault and battery, and negligent
infliction of emotional distress. We upheld
the teal court's dismissal of the attorney
from the action which was premised upon
application of the doctrine of judicial immu-
nity.
We stated that the issue was whether
the privilege should be limited to protection
from liability solely for publication of de-
famatory material We concluded that,
"The immunity bars actions for tortious
behavior ..., so long as it was a communi-
cation pertinent to any stage of a judicial
proceeding." Id., 372 Pa.Super. at 633-34,
539 A.2d at 1374 (emphasis added); see
also Moses v. McWilliams, 379 Pa.Super.
150, 164, 5.19 A.2d 950, 957 (1988), wherein
we collected cases and observed, "While it
is true that immunity from civil liability in
judicial proceedings has been applied most
frequently in defamation actions, many
courts, including those in Pennsylvania,
have extended the immunity from civil lia-
bility to other alleged tote when they oc-
cur in connection with judicial proceed.
ings.'
Our precedent is clear. The form of the
cause of action is not relevant to aoplica.
don of the privilege. Regardless of the
tort contained in the complaint. if the com-
munication was made in connection with a
2 However, we in" observe that appellant was
not precluded from pursuing her action against
Mr. Johnson solely due to the test results. She
was free to order her own testing, and the
statute, as noted in footnote one, supra. pro-
v Iles for crosseaamirmtion as to the blood tut
r We recognize that this case presents a
compelling situation. The doctor has ac-
e knowledged his incorrect recording of the
relevant data, and his error was at least
partially the reason that Dustin lost his
child support action against Mr. Johnson.-'
However, the maxim is that hard cases
make bad law, and as that maxim applies
herein, we cannot allow an exception in this
case to application of the immunity.
Our review of authority in other states
reveals that medical malpractice actions
have been instituted on the basis of expert
opinions offered in judicial proceedings. If
we carve out an exception to the judicial
immunity for medical malpractice actions,
dangerous precedent would result Ex-
perts are called upon to offer medical opin-
ions In a variety of situations in connection
with judicial proceedings. An example is
the psychiatrist asked to give an opinion of
parental competency in a custody action.
If we allow medical malpractice actions to
survive application of the privilege, we
open those experts to potential medical
malpractice actions premised upon alleg-
edly incorrect assessments of a parent's
mental capacity to care for the children.
See, e.g., Gootee v. Lightner, 224 Cal.
App.3d 587, 274 Cal.Rptr. 697 (4 Dist1990).
Similarly, a doctor who renders an opinion
as to another doctors medical malpractice
in a civil action instituted by a patient
would be open to claims of malpractice
based upon that expert's opinion in the civil
action. This simply cannot be allowed as
the privilege is necessary to prevent a wit.
nesses from refusing to testify based on a
fear of potential civil liability. The ratio.
nale for the immunity applies just as
results Furthermore, from our prior decision,
it appears that appellant's inability to pursue
her support action against Mr. Johnson rests at
least partially on her lack of due diligence in
seeking to reopen the support action once she
realized the test results were incorrect.
346 Pa. 601 ATLANTIC REPORTER, 2d SERIES
strongly to medical malpractice actions as
to any other type of civil action. Accord.
ingly, we cannot allow an exception to the
doctrine of judicial immunity where the
cause of action contained in the complaint
is medical malpractice.
Accordingly, the order is affirmed.
tivity may be afoot. U.S.C.A. Const
Amend. 4.
2. Arrest 0-6.15(3)
Mere presence near a high crime area
or in the vicinity of a recently reported
come, is not enough to warrant a Terry
stop. U.S.C.A. Const.Amend. 4.
3. Arrest X63.5(4)
o Sax nu?w tnnw
Officer must observe irregular behav
for before he initiates an investigatory stol
and, concurrently to his observation, ht
must hold a belief that criminal activity'm
afoot U.S.C.A. ConstAmend. 4. '
I
r 1
COMMONWEALTH of Pennsylvania
V.
Robert KEARNEY, Appellant.
Superior Court of Pennsylvania.
Argued Nov. 21, 1991.
Filed Jan. 13, 1992.
Defendant was convicted before the
Court of Common Pleas of Philadelphia
County, Criminal Division, at 1657, 1658,
1660 October Term, 1989, Jackson, J., of
aggravated assault, possessing an instru-
ment of crime, and carrying a firearm on a
public street without a license, and he ap-
pealed. The Superior Court, No. 3241 Phil-
adelphia 1990, Hoffman, J., held that. (1)
investigatory stop of defendant was sup-
ported by reasonable suspicion that he was
involved in selling drugs, and (2) police had
probable cause to arrest defendant when
he pointed revolver at officer who was ap-
proaching defendant to make investigatory
stop.
Affirmed.
Popovich. J.. concurred in result
1. arrest ¢-63.5(4)
In limited circumstances, individual
may be stopped and briefly detained; in
order for such a stop to be reasonable
under the Fourth Amendment, police must
have a reasonable suspicion, based on spe-
cific and arciculable facts, that criminal ac-
4. Arrest X63.5(5)
Reasonable suspicion existed to jus
investigatory stop of defendant, where c
cer responding to complaint of drug d,
ings in block observed defendant stand
nest to another person at corner, and
three different occasions people
proached defendant's companion, hand;
cash to him and then taking object that
retrieved from his pocket; after tti
transaction occurred, officer observed
fendant and other man leave corn
U.S.C.A. ConstAmend. 4.
s. Arrest 4--63.4(15)
Police had probable cause to arre
defendant, when officer who had put
jacket and baseball cap identifying himsi
as a police officer started toward defenda
to effect an investigatory stop, and as I
approached defendant, defendant pointed
revolver at him. U.S.C..A. Const amend.'
6. Criminal Law T.-1063(4)
Defendant waived contention on al
that there was insufficient evidence to
port verdict, where he did not raise gei
sufficiency of evidence contention in
trial motions.
Jay Meyer, Philadelphia, for appellant
Maxine Scotland, Asst Dist Atty., Phila-
delphia, for Com., appellee. .'f!
Before CAVANAUGH, POPOVICH
HOFFMAN. JJ.
DUSTIN CLODGO, by his mother and IN THE COURT OF COMMON PLEAS
natural guardian, JILL CLODGO, and DAUPHIN COUNTY, PENNSYLVANIA
JILL CLODGO, in her own right
Plaintiffs
VS. NO. 2606 S 1985
HERBERT S. BOWMAN, M.D.;
HARRISBURG HOSPITAL; HARRIS-
BURG HOSPITAL LABORATORIES;
HARRISBURG HOSPITAL
HEMATOLOGY CENTER; and
HARRISBURG HOSPITAL DEPART-
MENT OF PATHOLOGY, Defendants
OPINION
Presently before the Court are defendants' preliminary objections
to plaintiffs' complaint.
In April, 1982, plaintiffs filed a support petition against a Mr. Gregory
Johnson. Harrisburg Hospital (a defendant in the case at bar) conducted blood
tests several months later and issued a report excluding Mr. Johnson as the father.
Relying on this report, this Court entered an Order on November 24, 1982,
dismissing the action. A little over a year later, plaintiffs filed a second support
petition against a Mr. Michael Durbin. Harrisburg Hospital conducted blood tests
several months later and issued a report excluding Mr. Durbin as the father.
Relying on this report, this Court entered an Order on October 15, 1984, dismissing
the support action against him.
On December 10, 1984, Harrisburg Hospital notified the Domestic
Relations Office that the results of the blood tests done on Mr. Johnson were
erroneously reported. In actuality, the blood tests done on Mr. Johnson did not
exclude him from being the father of the minor involed. In January, 1985,
plaintiffs filed a second support petition against Mr. Johnson which this Court
denied on February 21, 1985. Six months later, plaintiffs filed the current action
against defendants claiming that child support was denied because of defendants'
negligence in providing an inaccurate blood test report. Defendants responded
by filing preliminary objections in the nature of a demurrer.
This Court, by Order and Opinion dated July 29, 1986, stayed the
current action and gave the plaintiff 15 days to petition to open the judgment
in the initial support action (Clodgo v. Johnson, No. 722 DR 1982). Plaintiff filed
her petition to open and it was granted by this Court on February 20, 1987.
That decision was reversed by the Superior Court of Pennsylvania on December
11, 1987. (No. 161 HBG 87) The Superior Court found a lack of due diligence
on the part of the plaintiffs. The plaintiffs herein petitioned the Supreme Court
of Pennsylvania but it was denied on December 15, 1988. (5 M.D. Allocatur Docket
198)
Hence a decision must now be rendered on the defendants' preliminary
objections in the case at bar. With regret, the Court finds it must sustain the
demt.: rer.
THE ISSUE
Do the defendants enjoy an absolute testimonial privilege?
DISCUSSION
Although this case is brought on negligence and medical malpractice
claims, the substance of the suit is that the communication of false information
in a judicial proceeding resulted in plaintiffs' losing their paternity case, resulting
in financial harm and mental distress.
The defendants prepared the blood test report for the Domestic
Relations Office of Dauphin County and the Court of Common Pleas of Dauphin
-2-
County pursuant to the Uniform Act on Blood Tests to Determine Paternity, 42
Pa.C.S. §6131 et sue. Section 6133 of that Act provides as follows:
§6133. Authority for Test.
In any matter subject to this sub-
chapter in which paternity, parentage
or identity of a child is a relevant
fact, the court upon its own initiative
or upon suggestion made by or on behalf
of any person whose blood is involved
may, or upon motion of any party to the
action made at a time so as not to delay
the proceedings unduly, shall order the
mother, child and alleged father to submit
to blood tests. If any party refuses to
submit to such tests, the court may resolve
the question of paternity, parentage or
identity of a child against such patty, or
enforce its order if the rights of others
and the interests of justice so require.
It is provided in 42 Pa.C.S. §6134 that:
§6134. Selection of Experts.
The tests shall be made by experts qualified
as examiners of blood types, who shall be
appointed by the court. The experts shall
be called by the court as witnesses to
testify to their findings and shall be
subject to cross-examination by the parties.
Any party or person at whose suggestion the
the tests have been ordered may demand that
other experts qualified as examiners of blood
types perform independent tests under order
of court, the results of which may be offered
in evidence. The number and qualifications
of such experts shall be determined by the
court.
It is provided in 42 Pa.C.S. §6136 that:
§6136. Effect of Test Results.
If the court finds that the conclusions
of all the experts as disclosed by the
evidence based upon the tests are that the
alleged father is not the father of the
child, the question of paternity, parentage
or identity of a child shall be resolved
accordingly. If the experts disagree in
their findings or conclusions, the question
shall be submitted upon all the evidence.
-3-
The Act makes it clear that experts such as the defendants are
appointed by the CourtI and shall then be called to give evidence as to their
findings. A cour t's suggestion to a county probation office to arrange the tests
has been held as a court appointment in compliance with this Section. Heller
v. Bush, 1 3 D&C 3d 506 (Monroe 1980).
The law recognizes an absolute testimonial privilege from suit for
the supplying of false information in the context of a court case. Block v.
Sacramento Clinical Labs Inc 131 Cal.App. 3d 386, 182 Cal. Rptr. 438 (1982)
[lab supplying erroneous report to district attorney's office enjoyed absolute
privilege from suit); Triester v. 191 Tenants Association, 272 Pa.Super. 271, 415
A.2d 698 (1979); Binder v. Triangle Publications Inc 442 Pa. 319, 275 A2d 53
(1971); Restatement of Torts (Second) §588.
The Court is aware that the results in this case are very harsh vis
a vis the plaintiffs. However, the law fully protects the defendants. It might
be noted that there is a public policy argument to be made for the plaintiffs-
clearly the best interests and welfare of this minor child would be served by
having a financial source of support. The interests of our society in seeing minor
children supported are obvious to all. Whether this public policy should outweigh
the legal protection afforded these defendants is a decision to be made by our
Supreme Court. This Court is not inclined to rewrite the law.
t
Query whether this appointment might not give rise to an issue of judicial
immunity as well as testimonial privilege.
-4-
The defendants have raised several other preliminary objections which,
in view of this decision, are rendered moot.
For the foregoing reasons, defendants' demurrer to plaintiff's complaint
is granted.
BY THE COURT:
an
Distribution:
James Pannebaker, Esquire
Randall G. Gale, Esquire
-5-
DUSTIN CLODGO, by his mother and IN THE COURT OF COMMON PLEAS
natural guardian, JILL CLODGO, and DAUPHIN COUNTY, PENNSYLVANIA
JILL CLODGO, in her own right
Plaintiffs
vs. NO. 2606 S 1985
HERBERT S. BOWMAN, M.D.;
HARRISBURG HOSPITAL; HARRIS-
BURG HOSPITAL LABORATORIES;
HARRISBURG HOSPITAL
HEMATOLOGY CENTER; and
HARRISBURG HOSPITAL DEPART-
MENT OF PATHOLOGY, Defendants
ORDER
AND NOW, this day of August, 1990, upon consideration
of defendants' Preliminary Objections to Plaintiffs' Complaint, and in accordance
with the Court's Opinion issued this date, defendants' demurrer to plaintiffs'
complaint is granted. Accordingly, plaintiffs' complaint is dismissed with prejudice.
^a 1 -foregoing
aortic at eoD7 of
La a true yarid.
1
original Ya r
Distribution:
James Pannebaker, Esquire
Randall G. Gale, Esquire
CERTIFICATE OF SERVICE
I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for Defendants
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
individually do hereby certify that a copy of the foregoing document was served upon the
following by enclosing a true and correct copy in envelopes addressed as follows, postage
prepaid, ?and depositing same in the United States Mail at Harrisburg, Pennsylvania, on the
day of 1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
Reynolds & Havas P.C.
1 01 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
THOMAS, THOMAS & HAFER, LLP
By
Randa G. Gale, Esquire
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SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
Plaintiffs,
v.
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARETBROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
CERTIFICATE
PREREQUISITE TO SERVICE OF A SUBPOENA
PURSUANT TO RULE 4009.22
As a prerequisite to service of a subpoena for documents and things pursuant to Rule
4009.22, Defendants, The Baltimore RH Typing Laboratory, Inc, Margaret Brooks, Individually, and
Terry Houtz, Individually, certify that
(1) a notice of intent to serve the subpoena with a copy of the subpoena attached thereto was
mailed or delivered to each party at least twenty days prior to the day on which the subpoena is
sought to be served;
(2) a copy of the notice of intent, including the proposed subpoena, is attached to this
certificate;
(3) no objection to the subpoena has been received; and
(4) the subpoena which will be served is identical to the subpoena which is attached to the
notice of intent to serve the subpoena.
THOMAS, THOMAS & HAFER, LLP
Date:
rc G([/cQ
RA L G. GALE, ESQUIRE
305 NORTH FRONT STREET - 6TH FLOOR
P.O. BOX 999
HARRISBURG, PA 17108.0999
(717) 255-7648
ATTORNEY FOR DEFENDANTS.
THE BALTIMORE RH TYPING LABORATORY, INC.,
MARGARET BROOKS, Individually and
TERRY HOUTZ, Individually.
,z?"
Randall G. Gale. Esquire
Attorney No. 26149
Thomas, Thomas & Haler, LLP
P.O Box 999
Harrisburg, PA 17108.0999
(717) 255-7648
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
v.
Plaintiffs,
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR
DISCOVERY PURSUANT TO RULE 4009.21
TO: Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Defendants, The Baltimore RH Typing Laboratory, Inc., Margaret Brooks, individually, and
Terry Houtz, individually, intend to serve a subpoena identical to the one that is attached to this
notice. You have twenty (20) days from the date listed below in which to file of record and serve
upon the undersigned an objection to the subpoena. If no objection is made, the subpoena may be
served.
Date:
THOMAS, THOMAS & HAFER, LLP
RA ALL G. GALE, ESQUIRE
305 NORTH FRONT STREET- 6TH FLOOR
P.O. BOX 999
HARRISBURG, PA 17108-0999
(717) 255-7648
ATTORNEY FOR DEFENDANTS,
THE BALTIMORE RH TYPING LABORATORY, INC.,
MARGARET BROOKS, Individually and
TERRY HOUTZ, Individually.
r/l-?L`•`Y j
COMMONWEALTH OF PENNSYLVANIA
Sue Ann Hinton, individually aCPUNTY OF CUMBERLAND
Jeremy L. Chubb, a minor,
by Sue Ann Hinton, his guardian,
Plaintiffs
V.
The Baltimore RH Typing Laboratory, Inc. et al.
• File No, 99-5023 Civil Term
SUBPOENA TO PRODUCE DOCUMENTS OR THINGS
FOR DISCOVERY PURSUANT TO RULE 4009.22
TO: Cumberland County Domestic Relations Office
(Name of Person or Entity)
Within twenty (20) days after service of this subpoena, you are ordered by the court to produce the following
documents or things:
Any and all documents contained within the 1988 and any other paternity action filed by Sue Ann Hinton
an er sori; eremy; agams 61ar m on, 1 u m
reports, transcripts of hearings, depositions, correspondence a11[11111:11:11 1113 11 T11,11111,11:3 'FrjjL'f's--T7j31t-jcL
nd test results.
so, a0Y Pa ernr v AO
at Thomas, Thomas do Hafer, LLP, P. 0. Box 999, 305 N. Front St., Harrisburg, PA 17108-0999
(Address)
You may deliver or mail legible copies of the documents or produce things requested by this subpoena, together
with the certificate of compliance, to the party making this request at the address listed above. You have the right
to seek in advance the reasonable cost of preparing the copies or producing the things sought.
If you fail to produce the documents or things required by this subpoena within twenty (20) days after its service,
the party serving this subpoena may seek a court order compelling you to comply with it.
THIS SUBPOENA WAS ISSUED AT THE REQUEST OF THE FOLLOWING PERSON:
Name R ndall r.. Gal-
Address: Es uire
Thomas, Thomas d Hafer, LLP
305 N. Front S[reet P. 0. Box 999
Harrisburg, PA 17108-0999
Telephone: (717) 255-7648
Supreme Court ID q 26149
Attorney For: Defendants, Baltimore Rh Typing Laboratory, Inc.,
Terry Houtz, individually
Date: --j/UV F-M ? r _9 /99S
Seal of the Court
?.Pu%y
(Eft 7/97)
CERTIFICATE OF SERVICE
I, RANDALL G. GALE, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER,
LLP do certify that I served the foregoing NOTICE OF INTENT TO SERVE A SUBPOENA TO
PRODUCE DOCUMENTS AND THINGS FOR DISCOVERY PURSUANT TO RULE 4009.21 on the
following person(s), by depositing the same in the United States Mail, postage prepaid, at Harrisburg,
Pennsylvania addressed as follows:
Susan Kay Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER, P.C.
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
Andrew). Briggs, Esquire
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
THOMAS, THOMAS & HAFER, LLP
RANDALL G. GALE, ES IRE
Date: ?; /?, (?
CERTIFICATE OF SERVICE
I, RANDALL G. GALE, ESQUIRE of the law firm of THOMAS, THOMAS, & HAFER,
LLP do certify that I served the foregoing CERTIFICATE PREREQUISITE TO SERVICE OF A
SUBPOENA PURSUANT TO RULE 4009.22 on the following person(s), by depositing the same in
the United States Mail, postage prepaid, at Harrisburg, Pennsylvania addressed as follows:
Susan Kay Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowsky, Esquire
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER, P.C.
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
Andrew J. Briggs, Esquire
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
THOMAS, THOMAS & HAFER, LLP
RANDALL G. GALE, ESQUIRE
Date: P -e 4C(
SUE ANN HINTON, individually and
JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian,
Plaintiffs
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
Defendants
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY, PENNSYLVANIA
: CIVIL ACTION - LAW
: NO. 99-5023 CIVIL TERM
: JURY TRIAL DEMANDED
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the complaint or for any other claim or relief requested by
the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
.1-
SUE ANN HINTON, individually and : IN THE COURT OF COMMON PLEAS
JEREMY L. CHUBB, a minor, : CUMBERLAND COUNTY, PENNSYLVANIA
by SUE ANN HINTON, his guardian,
Plaintiffs CIVIL ACTION - LAW
VS.
NO. 99-5023 CIVIL TERM
THE BALTIMORE RH TYPING JURY TRIAL DEMANDED
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
Defendants
FIRST AMENDED COMPLAINT
AND NOW, come the Plaintiffs, SUE ANN HINTON, individually, and JEREMY L.
CHUBB, a minor, by SUE ANN HINTON, his guardian, by and through their attorneys, Gates &
Associates, P.C., and respectfully represent as follows:
I. Plaintiff, SUE ANN HINTON (hereinafter referred to as "Plaintiff Mother"), is an
adult individual residing at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
2. Plaintiff, JEREMY L. CHUBB (hereinafter referred to as "Plaintiff Son"), is a minor
child residing with Plaintiff Mother at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
3. Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., hereinafter
referred to as ("Defendant"), is a Maryland Corporation, registered and doing
business in the State of Maryland, at 400-402 West Franklin Street, Baltimore,
-2-
Maryland, 2120 1.
4. ROBERT E. WENK, M.D., was the medical director of THE BALTIMORE RH
TYPING LABORATORY, INC., at the time of the alleged incident at bar.
5. MARGARET BROOKS and TERRY HOUTZ were supervisors employed with THE
BALTIMORE RH TYPING LABORATORY, INC., at the time of the alleged
incident at bar.
6. The Defendant THE BALTIMORE RH TYPING LABORATORY, INC.'s resident
agent and business address for the resident agent is, PHILLIP J. GOLDSTEIN,
resident agent, 400 West Franklin Street, Baltimore, Maryland, 21201.
7. On or about April 26, 1988, Judge Harold E. Sheely ofthe Cumberland County Court
of Common Pleas, appointed and directed the Defendant, THE BALTIMORE RH
TYPING LABORATORY, INC., to perform Red Cell and HLA Blood Grouping
Tests on the Plaintiff Mother, Plaintiff Son and the alleged father, James R. Chubb.
8. On or about July 12, 1988, the Defendant THE BALTIMORE RH TYPING
LABORATORY, INC., through its' employees and agents, the Defendants ROBERT
E. WENK, M.D. , MARGARET BROOKS and TERRY HOUTZ, performed
various blood tests, of which Red Cell and HLA tests were two (2) of several tests
performed.
9. The Defendants, ROBERT E. WENK, M.D., MARGARET BROOKS and TERRY
HOUTZ performed the various blood tests upon samples of blood from the Plaintiff
Mother, Plaintiff Son and the alleged father of Plaintiff Son, James R. Chubb.
3-
10. On or about July 12, 1988, the Defendants ROBERT E. WENK, M. D., MARGARET
BROOKS and TERRY HOUTZ, together produced a written report of the results of
the various blood tests, identified in paragraph 8 above, which the Defendants
performed upon the blood samples of the parties, as stated in paragraph 9 above.
IL The written report dated July 12, 1998, stated the various specific tests results and
then summarized the test results by stating:
"On the basis of these tests, (Chubb, James R.) can be excluded
as the father of (Chubb, Jeremy L.) for the following reasons:
1. The child has a genetic marker (A33) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father.
2. The child has a genetic marker (B 14) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father."
12. The written report, identified in paragraph 1 I above, was submitted and signed by the
Defendant, ROBERT E. WENK, M.D., as the medical director, employee and agent
for the Defendant THE BALTIMORE RH TYPING LABORATORY, INC.
13. The written report, identified in paragraph 11 above, was reviewed and verified as a
"true and accurate representation of phenotypes determined for the individuals named
herein" by the Defendants MARGARET BROOKS, and TERRY HOUTZ, as
supervisors, employees and agents for the Defendant THE BALTIMORE RH
-4-
TYPING LABORATORY INC.
14. As a direct result of the written report provided to Judge Sheely by the Defendants,
Judge Sheely issued an order on July 19, 1988, dismissing the Plaintiff Mother's
complaint for support based upon the Defendant's statements and their test results
which excluded James R. Chubb as the possible father of Plaintiff Son.
15. Plaintiff Mother telephoned the Defendant THE BALTIMORE RH TYPING
LABORATORY, INC., on several occasions, stating with conviction, she knew
James R. Chubb was the father of her son and asking whether the Defendant might
have made an error in their tests and could redo or check their testing procedure.
16. In response to each telephone call the Plaintiff Mother was informed by an employee
of The Defendant THE BALTIMORE RH TYPING LABORATORY INC., "The
tests results are correct, they never make mistakes."
17. On or about 1996, Plaintiff Son was diagnosed with a serious neurological disorder,
Tourette Syndrome.
18. Plaintiff Mother never stopped believing the Defendant THE BALTIMORE RH
TYPING LABORATORY INC., through it's agents and employees, the Defendants,
ROBERT E. WENK, M.D., MARGARET BROOKS, and TERRY HOUTZ,
supervisors, had made an error in their tests, but, Plaintiff Mother had no objective
proof, nor the ability to obtain such proof until Plaintiff Son developed Tourette
Syndrome, this medical diagnosis empowered Plaintiff Mother with the additional
•5-
support needed to resume the legal action to identify the biological father of Plaintiff
Son.
19. The physicians and therapists of the Plaintiff Son needed the medical history of the
Plaintiff Son's father to aid them in the necessary and proper treatment ofthe Plaintiff
Son's diagnosis of Tourette Syndrome.
20. Plaintiff Son also wanted a formal adjudication and determination of the identity of
his father to obtain the emotional and psychological satisfaction to fill the void which
had been caused by not knowing the true identify of his father.
21. On March 2, 1998, Plaintiff Mother filed a second support action against James R.
Chubb, however, this support action was again denied based upon the Defendant's
report of the test results which were performed by the Defendants and reported to
Judge Sheely on July 12, 1988.
22. March 31, 1998, upon the filing of a Motion for Reconsideration of the March 2,
1998 decision, a Rule to Show Cause was issued upon James R. Chubb to submit to
additional tests to determine the paternity of Plaintiff Son.
23. December 8, 1998, Plaintiff Mother, Plaintiff Son and James R. Chubb provided blood
samples to be utilized in further tests to be performed by Micro Diagnostics, A
Lifecodes Company.
24. Micro Diagnostics performed DNA testing upon each of the individuals identified in
paragraph 23, the results of the tests indicated James R. Chubb could not be excluded
as the Plaintiff Son's biological father.
6-
25. Micro Diagnostics performed the HLA testing, which had been previously performed
upon the Plaintiff Mother and James R. Chubb, by the Defendants in 1988.
26. The HLA test which Micro Diagnostics performed upon the Plaintiff Mother were the
same tests as the Defendants performed in 1988.
27. The HLA test results which Micro Diagnostics achieved were totally different than
those of the Defendants.
28. The HLA test results which Micro Diagnostics performed could not exclude James
R. Chubb as the biological father of the Plaintiff Son.
29. Micro Diagnostics test results indicate a 99.99% probability that James R. Chubb was
the father of Plaintiff Son.
30. Plaintiffs now file the within action to begin this lawsuit in Cumberland
County, Pennsylvania.
COUNTI
NEGLIGENCE BY DEFENDANT, BALTIMORE RH
TYPING LABORATORY, INC
31. Paragraphs 1 through 30 of this Complaint are hereby incorporated by reference.
32. The Defendant BALTIMORE RH TYPING LABORATORY, INC. holds itself
out to the public as a laboratory with the knowledge, skill and experience
necessary to perform those special blood tests needed to accurately determine the
biological parents of children.
33. When offering the service, stated in paragraph 32, to the public, the Defendant
THE BALTIMORE RH TYPING LABORATORY, INC., accepts great and
-7-
significant responsibility. When the Defendant agrees to perform tests to
determine the biological parents of a child, the test results affect every aspect of
the lives of the parent and child.
34. The outcome ofthe tests performed by the Defendant, THE BALTIMORE RH
TYPING LABORATORY, INC., affect the lives of the parent and child
psychologically, physically, financially and socially.
35. The Defendant THE BALTIMORE RH TYPING LABORATORY, INC.
accepted the responsibility to determine whether James R. Chubb was the
biological father of the Plaintiff Son.
36. The Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., caused
certain employees of the Defendant to perform various tests, including Red Cell
and HLA, upon the blood samples of the Plaintiff Mother, Plaintiff Son and James
R. Chubb.
37. The Defendant, THE BALTIMORE RH TYPING LABORATORY, INC.,
provided the results of these tests to the Cumberland County Court of Common
Pleas as being a "true and accurate representation of phenotypes determined for
the individuals named herein".
38. Despite Plaintiff Mother's repeated efforts to question the Defendant, THE
BALTIMORE RH TYPING LABORATORY, INC., concerning the accuracy of
the test results the Defendant provided to the Court of Common Pleas, the
Defendant never took any action to review or question their own test results.
-8-
39. Only after Plaintiff Son developed a serious medical condition which made it
critical for the medical history of Plaintiff Son's father to be discovered and
Plaintiff Mother's personal knowledge of the identity of the biological father,
coupled with her stubborn perseverance within the legal system, were additional
tests performed which revealed the false results from the tests which the
Defendant, THE BALTIMORE RH LABORATORY, INC., performed.
40. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to meet the duty which it had undertaken to the Plaintiff Mother and
Plaintiff Son to correctly and accurately determine whether James R. Chubb was
the biological father of the Plaintiff Son.
41. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to meet the duty it had to take all necessary actions and precautions in the
performance of these tests to insure the test results were reported accurately.
42. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to take any action in response to the Plaintiff Mother's repeated statements
that the test results which the Defendant reported were incorrect.
43. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered the social
label of an unwed mother with a child of an unknown father.
44. As a direct and proximate result of negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered great
-9-
embarrassment and humiliation from friends and relatives because of the
implications of the test results that she had been sexually involved with another
man in addition to James R. Chubb.
45. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered substantial
financial difficulties because of the loss of the biological father's additional
financial support in raising Plaintiff Son.
46. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered substantial
psychological stress as she had to cope alone with the tasks of parenting a son and
in addition to that, a son who was diagnosed with a serious chronic disease.
47. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother had to endure the
frustration and anger as she fought the legal system to prove that James R. Chubb
was the biological father of Plaintiff Son.
48. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the social
embarrassment and humiliation of not having a father present in his life.
49. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the social
embarrassment and humiliation of not even knowing the identity of his father.
10-
50. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the psychological
trauma and depravation which resulting from the absence of any known father
figure in the Plaintiff Son's life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enter judgement in their favor against the Defendant, THE
BALTIMORE RH TYPING LABORATORY, for damages in an amount exceeding
$35,000.00, for damages past, present and future; medical expenses, pain and suffering,
psychological stress and trauma; and for such further and additional relief as this Honorable Court
deems just and proper under the circumstances.
COUNT 11: ACTION AGAINST
BALTIMORE RH TYPING LABORATORY
FOR VICARIOUS LIABILITY FOR ACTS AND
OMISSIONS OF STAFF AND EMPLOYEES
51. The averments of the foregoing paragraphs I through 50 are incorporated herein
by reference.
52. At all times relevant hereto, the staff, employees and the named Defendants,
ROBERT E. WENK, M.D., MARGARET BROOKS, Supervisor and TERRY HOUTZ,
Supervisor, were the agents, ostensible agents and/or agents by estoppel of the Defendant, THE
BALTIMORE RH LABORATORY, INC.
53. At all times relevant hereto, the staff, employees and named Defendants were
acting within the scope of their employment and/or agency with the Defendant, THE
-11-
BALTIMORE RH LABORATORY, INC., with the permission and consent of the
Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests.
54. The Defendant, THE BALTIMORE RH LABORATORY, INC., is vicariously
liable for the damages caused by the negligent conduct of the staff and employees as more
particularly described herein.
WHEREFORE, Plaintiffs, SUE ANN HINTON and JEREMY L. CHUBB
respectfully requests this Honorable Court to enterjudgement in her favor and against the
Defendant, BALTIMORE RH TYPING LABORATORY, for damages in an amount
exceeding $35,000.00, for damages past, present and future; medical expenses, pain and suffering,
psychological stress and trauma; and for such further and additional relief as this Honorable Court
deems just and proper under the circumstances.
COUNT III.
NEGLIGENCE BY DEFENDANT,
ROBERT E. WENK M.D.
55. Paragraphs I through 54 of this Complaint are hereby incorporated by reference.
56. The Defendant ROBERT E. WENK, M.D. held himself out to the public and to
his employer, the Defendant, THE BALTIMORE RH TYPING LABORATORY,
INC., as an individual with the knowledge, skill and experience necessary to
perform those special blood tests needed to accurately determine the biological
parents of children and to supervise and assume responsibility for those individuals
who are employees of the Defendant, THE BALTIMORE RH TYPING
-12-
LABORATORY, INC., who might perform those special blood tests..
57. When offering the service, stated in paragraph 56, to the public and to the
Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., the
Defendant, ROBERT E. WENK, M.D., accepted great and significant
responsibility. When the Defendant, ROBERT E. WENK, M.D., assumed the
responsibility of performing these tests and of supervising other employees to
perform these tests to determine the biological parents of a child, the Defendant
knew or should have known that these test results would affect every aspect of the
lives of the parent and child.
58. The outcome of the tests which the Defendant, ROBERT E. WENK, M.D.,
performs and the supervision of the tests performed by other employees, affect the
parent and child's life psychologically, physically, financially and socially.
59. The Defendant, ROBERT E. WENK, M.D., accepted the responsibility to
determine and provide a written report to the Cumberland County Court of
Common Pleas to answer the question of whether James R. Chubb was the
biological father of the Plaintiff Son.
60. The Defendant, ROBERT E. WENK, M.D., performed and/or supervised the
performance of various tests, including Red Cell and HLA, upon the blood samples
of the Plaintiff Mother, Plaintiff Son and James R. Chubb.
61. The Defendant, ROBERT E. WENK, M.D., the results of the tests to the
Cumberland County Court of Common Pleas as a "true and accurate
13-
representation of phenotypes determined for the individuals named herein".
62. Despite Plaintiff Mother's repeated efforts to question the test results submitted by
the Defendant, ROBERT E. WENK, M.D., to the Cumberland County Court of
Common Pleas, the Defendant, ROBERT E. WENK, M.D., never took any action
to review or question the test results he had signed and submitted to the court.
63. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to take any
action to review or question the test results he signed and submitted to the
Cumberland County Court of Common Pleas.
64. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to meet the
duty which he had undertaken to the Plaintiff Mother and Plaintiff Son to correctly
and accurately determine whether James R. Chubb was the biological father of the
Plaintiff Son.
65. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to meet the
duty which he had to take all necessary actions and precautions in the performance
of these tests to insure the test results were accurately reported.
66. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to take any
action in response to the Plaintiff Mother's repeated statements that the test results
which the Defendant reported were incorrect and her requests that the tests be
reevaluated.
67. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered the social label of an unwed mother with
-14-
a child of an unknown father.
68. As a direct and proximate result of negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered great embarrassment and humiliation from
friends and relatives because of the implications of the test results that she had
been sexually involved with another man, in addition to James R. Chubb.
69. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered substantial financial difficulties, because of
the loss of the biological father's additional financial support in raising Plaintiff
Son.
70. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered substantial psychological stress as she had
to cope alone with the tasks of parenting a son and in addition to that, a son who
was diagnosed with a serious chronic disease.
71. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother had to endure the frustration and anger as she
fought the legal system to prove that James R. Chubb was in fact the biological
father of Plaintiff Son.
72. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Son suffered the social embarrassment and humiliation of
not having a father present in his life.
73. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
-15-
WENK, M.D., Plaintiff Son suffered the social embarrassment and humiliation of
not even knowing the identity of his father.
74. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Son suffered the psychological trauma and depravation
which occurred from the absence of any known father figure in the Plaintiff Son's
life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enter judgement in their favor against the Defendant, ROBERT
E. WENK, M.D., individually, for damages in an amount exceeding $35,000.00, for damages
past, present and future; medical expenses, pain and suffering, psychological stress and trauma;
and for such further and additional relief as this Honorable Court deems just and proper under the
circumstances.
COUNT IV
NEGLIGENCE BY DEFENDANTS
MARGARET BROOKS and TERRY HOUTZ
75. Paragraphs 1 through 74 of this Complaint are hereby incorporated by reference.
76. Defendants MARGARET BROOKS and TERRY HOUTZ held themselves out to
the public and to their employer, the Defendant, THE BALTIMORE RH TYPING
LABORATORY, INC., as individuals with the knowledge, skill and experience
necessary to pe,'orm and to evaluate those special blood tests needed to accurately
determine the biological parents of children.
16-
77. When offering the service, stated in paragraph 76, to the public and to the
Defendant Employer, THE BALTIMORE RH TYPING LABORATORY, INC.,
the Defendants, MARGARET BROOKS and TERRY HOUTZ, accepted great
and significant responsibility. When the Defendants took on the responsibility of
performing the tests to determine the biological parents of a child, the test results
affect every aspect of the lives of the parent and child lives.
78. The outcome of the tests which the Defendants, MARGARET BROOKS and
TERRY HOUTZ, performed affect the lives of the parent and child
psychologically, physically, financially and socially.
79. The Defendants, MARGARET BROOKS and TERRY HOUTZ, accepted the
responsibility to perform certain tests accurately to determine whether James R.
Chubb was the biological father of the Plaintiff Son.
80. The Defendants, MARGARET BROOKS and TERRY HOUTZ, performed
various tests, including Red Cell and HLA, upon the blood samples of the Plaintiff
Mother, Plaintiff Son and James R. Chubb.
81. The Defendants, MARGARET BROOKS and TERRY HOUTZ, signed the
document sent to the Cumberland County Court of Common Pleas stating they
had reviewed and were verifying the results of the various blood tests which
indicated James R. Chubb was not the father of the Plaintiff son.
82. Despite Plaintiff Mother's repeated contacts with the Defendant, THE
BALTIMORE RH LABORATORY, INC., the Defendants MARGARET
-17-
BROOKS and TERRY HOUTZ, never took any action to review or reevaluate
their test results for accuracy.
83. The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to meet the duty which they had undertaken to the Plaintiff Mother and
Plaintiff Son to correctly and accurately perform the necessary and appropriate
blood tests to determine whether James R. Chubb was the biological father of the
Plaintiff Son.
84. The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to meet their duty to take all necessary actions and precautions in the
performance of these blood tests to insure the test results were reported
accurately.
85. The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to take any action in response to the Plaintiff Mother's repeated statements
that the test results were incorrect.
86. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered the social
label of an unwed mother with a child of an unknown father.
87. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered great
embarrassment and humiliation from friends and relatives as a result of the test
results indicating she had been sexually involved with another man, in addition to,
18-
James R. Chubb.
88. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered
substantial financial difficulties, as a result of the loss of the biological father's
additional financial support in raising Plaintiff Son.
89. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered
substantial psychological stress as she had to cope alone with the tasks of
parenting a son and in addition to that a son who was diagnosed with a serious
chronic disease.
90. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother had to endure the
frustration and anger as she fought the legal system to prove that James R. Chubb
was the biological father of Plaintiff Son.
91. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the social
embarrassment and humiliation of not having a father present in his life.
92. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the social
embarrassment and humiliation of not knowing the identity of his father.
93. As a direct and proximate result of the negligence of the Defendants,
-19-
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the
psychological trauma and depravation which occurred from the absence of any
known father figure in the Plaintiff Son's life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enter judgement in their favor against the Defendants,
MARGARET BROOKS, individually and TERRY HOUTZ, individually, for damages in an
amount exceeding $35,000.00, for damages past, present and future; medical expenses, pain and
suffering, psychological stress and trauma; and for such further and additional relief as this
Honorable Court deems just and proper under the circumstances.
Respectfully submitted.
GATES & ASSOCIATES, P.C.
usndi I squire
Counsel for Plain ' s
PA I.D. # 64998
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
Dated: October, 1999
-20-
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SUE ANN HINTON, individually and : IN THE COURT OF COMMON PLEAS
JEREMY L. CHUBB, a minor, : CUMBERLAND COUNTY,
by SUE ANN HINTON, his guardian, : PENNSYLVANIA
Plaintiff's
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
Defendants
: CIVH, ACTION -LAW
NO. ct_,soa3
NOTICE
: JURY TRIAL DEMANDED
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the complaint or for any other claim or relief requested by
the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
SUE ANN HINTON, individually, and
JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian,
Plaintiffs
VS.
: IN THE COURT OF COMMON PLEAS
: CUMBERLAND COUNTY,
: PENNSYLVANIA
CIVIL ACTION -LAW
THE BALTIMORE RH TYPING
LABORATORY, INC., NO.
ROBERT E. WENK, M.D., individually, :
MARGARET BROOKS, individually, .
and TERRY HOUTZ, individually,
Defendants
`- - 5OQ3 C?,wQ?e?m
COMPLAINT
AND NOW, comes the Plaintiffs, SUE ANN I3INTON, individually and JEREMY L.
CHUBB, a minor, by SUE ANN HINTON, his guardian, by and through their attorneys, Gates &
Associates, P.C., and respectfully represents as follows:
1. Plaintiff SUE ANN HINTON (hereinafter referred to as "Plaintiff Mother"), is an
adult individual residing at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
2. Plaintiff, JEREMY L. CHUBB (hereinafter referred to as "Plaintiff Son'), is a minor
child residing with Plaintiff Mother at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
3. Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., hereinafter
referred to as ("Defendant"), is a Maryland Corporation, registered and doing
business in the state of Maryland, at 400-402 West Franklin Street, Baltimore,
Maryland, 21201.
4. Defendant's resident agent and business address for the resident agent is, PIIILLIP
J. GOLDSTEIN, resident agent, 400 West Franklin Street, Baltimore, Maryland,
21201.
5. On or about April 26, 1988, Judge Harold E. Sheely, of Cumberland County Court
of Common Pleas, appointed the Defendant to perform Red Cell and HLA Blood
Grouping Tests on the Plaintiff Mother, Plaintiff Son and James R. Chubb.
6. On or about July 12 , 1988, the Defendant performed these various blood tests of
which Red Cell and HLA tests were two (2) of several tests performed.
7. The Defendant performed these various blood tests upon samples of blood from the
Plaintiff Mother, Plaintiff Son and the father of Plaintiff Son, James R. Chubb.
8. On or about July 12, 1988, the Defendant produced a written report of the results of
the various blood tests, as stated in paragraph 6 above, which the Defendant
performed upon the blood samples of the parties, as stated in paragraph 7 above.
9. The written report stated various specific tests results and then summarized the test
results by stating:
"On the basis of these tests, (Chubb, James R.) can be excluded
as the father of (Chubb, Jeremy L.) for the following reasons:
1. The child has a genetic marker (A33) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father.
2. The child has a genetic marker (B 14) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father."
10. As a direct result of the written report provided to Judge Sheely, by the Defendant,
Judge Sheely issued an order on July 19, 1988, dismissing the Plaintiff Mother's
complaint for support based upon the Defendant's statements and their test results
which excluded James R. Chubb as the possible father of Plaintiff Son.
11. Plaintiff Mother telephoned the Defendant on several occasions, stating with
conviction, she knew James R. Chubb was the father of her son and asking whether
the Defendant might have made an error in their tests.
12. The Defendant stated the same answer to the Plaintiff Mother each time she
telephoned the Defendant, "The tests results are correct, they never make
mistakes".
13. On or about 1996, Plaintiff Son was diagnosed with a serious neurological disorder,
Tourette Syndrome.
14. Plaintiff Mother never stopped believing the Defendant had made an error in their
tests, but Plaintiff Mother had no objective proof, nor the ability to obtain such proof
until Plaintiff Son developed Tourette Syndrome, which empowered PlaintiffMother
with the additional support needed to resume the legal action to identify the biological
father of Plaintiff Son.
15. The physicians and therapists of the Plaintiff Son needed the medical history of the
Plaintiff Son's father to aid them in the necessary and proper treatment ofthe Plaintiff
Son.
16. Plaintiff Son also wanted a formal adjudication and determination of the identify of
his father to obtain the emotional fulfillment and psychological satisfaction to fill the
void which had been caused by not knowing the true identify of his father.
17. March 2, 1998, Plaintiff Mother filed a second support action against James R.
Chubb, but this support action was denied based upon the Defendant's report of the
test results which were performed by the Defendant and reported to Judge Sheely on
July 12, 1988.
18. March 31, 1998, upon a filing of a Motion for Reconsideration ofthe March 2, 1998
decision, a Rule to Show Cause was issued upon James R. Chubb, to submit to
additional tests to determine the paternity of Plaintiff Son.
18. December 8, 1998, PlaintiffMother, PlaintiffSon and James R. Chubb provided blood
samples to be utilized in further tests to be done by, Micro Diagnostics, A Lifecodes
Company.
19. Micro Diagnostics performed DNA testing upon each of the individuals identified in
paragraph 18, the results ofthe tests indicated James R. Chubb could not be excluded
as the Plaintiff Son's biological father.
20. Micro Diagnostics performed the HLAtesting, which had been previously performed
upon the Plaintiff Mother and James R. Chubb, by the Defendant in 1988.
21. The HLA test results which Micro Diagnostics performed upon the Plaintiff Mother
were the same as the Defendant had obtained when doing these tests in 1988.
22. The BLA test results which Micro Diagnostics performed upon James R. Chubb were
totally different.
23. The HLA test results which Micro Diagnostics performed could not exclude James
R. Chubb as the biological father of the Plaintiff Son.
24. Micro Diagnostics test results indicate a 99.99% probability of paternity of Plaintiff
Son by James R. Chubb.
25. Plaintiffs now file this civil complaint to begin this lawsuit in Cumberland
County, Pennsylvania.
COUNT I
NEGLIGENCE BY DEFENDANT. BALTIMORE RR
TYPING LABORATORY. INC.
26. Paragraphs 1 through 25 of this Complaint are hereby incorporated by reference,
27. The Defendant holds itself out to the public as a laboratory with the knowledge,
skill and experience necessary to perform those special blood tests needed to
accurately determine the biological parents of children.
28. When offering the service, stated in paragraph 27, to the public the Defendant
accepts great and significant responsibility. When the Defendant agrees to
perform tests to determine the biological parents of a child, the test results affect
every aspect of the parent and child's lives.
29. The outcome of the tests which the Defendant performs affect the parent and
child's life psychologically, physically, financially and socially.
30. The Defendant accepted the responsibility to determine whether James R. Chubb
was the biological father of the Plaintiff Son.
31. The Defendant performed various tests, including Red Cell and HI..A, upon the
blood samples of the Plaintiff Mother, Plaintiff Son and James R. Chubb.
32. The Defendant provided results of these tests to the Cumberland County Court of
Common Pleas, with the unstated, but underlying implication these tests were
correct and reliable.
33. Despite Plaintiff Mother's repeated efforts to question Defendant's test results, the
Defendant never took any action to review or question their own test results.
34. Only after Plaintiff Son developed a serious medical condition which made it
critical for the medical history of Plaintiff Son's father to be discovered and
Plaintiff Mother's personal knowledge of the identity of the biological father
coupled with her stubborn perseverance within the legal system, were additional
tests performed which revealed the false results from the tests which the Defendant
performed..
35. The Defendant was negligent in failing to meet the duty which it had undertaken to
the Plaintiff Mother and Plaintiff Son to correctly and accurately determine
whether James R. Chubb was the biological father of the Plaintiff Son.
36. The Defendant was negligent in failing to meet the duty which it had to take all
necessary actions and precautions in the performance of these tests to insure the
test results were reported accurately.
37. The Defendant was negligent in failing to take any action in response to the
Plaintiff Mother's repeated statements that the test results which the Defendant
reported were incorrect.
3 9. As a direct and proximate result of the Defendant's negligence, Plaintiff Mother
suffered the social label of an unwed mother with a child of an unknown father.
39. As a direct and proximate result of Defendant's negligence, Plaintiff Mother
suffered great embarrassment and humiliation from friends and relatives as a result
of the test results indicating she had been sexually involved with another man, in
addition to, James R. Chubb.
40. As a direct and proximate result of the Defendant's negligence, Plaintiff Mother
suffered substantial financial difficulties, as a result of the loss of the biological
father's additional financial support in raising Plaintiff Son.
41. As a direct and proximate result of the Defendant's negligence, Plaintiff' Mother
suffered substantial psychological stress as she had to cope alone with the tasks of
parenting a son and in addition to that a son who was diagnosed with a serious
chronic disease.
42. As a direct and proximate result of the Defendant's negligence, Plaintiff Mother
had to endure the frustration and anger as she fought the legal system to prove that
James R. Chubb was the biological father of Plaintiff Son.
43. As a direct and proximate result of the Defendant's negligence, Plaintiff Son
suffered the social embarrassment and humiliation of not having a father present in
his life.
44. As a direct and proximate result of the Defendant's negligence, Plaintiff Son
suffered the social embarrassment and humiliation of not even knowing the
identity of his father.
45. As a direct and proximate result of the Defendant's negligence, Plaintiff Sun
suffered the psychological trauma and depravation which occurred from the
absence of any known father figure in the Plaintiff Son's life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enter judgement in their favor against the Defendants,
BALTIMORE RH TYPING LABORATORY, ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually and TERRY HOUTZ, individually, for damages in an
amount exceeding $35,000.00, for damages past, present and future; medical expenses, pain and
suffering, psychological stress and trauma; attorneys' fees and costs; and for such further and
additional relief as this Honorable Court deems just and proper under the circumstances.
COUNT H: ACTION AGAINST
BALTIMORE RH TYPING LABORATORY
FOR VICARIOUS LIABILITY FOR ACTS AND
OMISSIONS OF STAFF AND EMPLOYEES
46. The averments of the foregoing paragraphs 1 through 45 are incorporated herein
by reference.
47. At all times relevant hereto, the staff and the employees were the agents, ostensible
agents and/or agents by estoppel of the Defendant.
48. At all times relevant hereto, the staff and employees were acting within the scope
of their employment and/or agency with the Defendant, with the permission and consent of the
Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests.
49. The Defendant is vicariously liable for the damages caused by the negligent
conduct of the staff and employees as more particularly described herein.
WHEREFORE, Plaintiffs, SUE ANN HINTON and JEREMY L. CHUBB
respectfully requests this Honorable Court to enter judgement in her favor and against the
Defendant, BALTIMORE RH TYPING LABORATORY, ROBERT E. WENK, M.D.,
individually, MARGARET BROOKS, individually and TERRY HOUTZ, individually, for
damages in an amount exceeding $35,000.00, for damages past, present and future; medical
expenses, pain and suffering, psychological stress and trauma; attorneys' fees and costs; and for
such further and additional relief as this Honorable Court deems just and proper under the
circumstances.
Respectfully submitted,
Gates & Associates, P.C.
DATE: August / r 1999
C" usan Kay Can cello Esquire
Counsel for P1 ind s
Supreme Court o. 64998
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(717) 731-9600
VERIFICATION
The foregoing document is based upon information which has
been gathered by my counsel in preparation of the lawsuit. The
language of the document is that of counsel and is not my own. I
have read the document and to the extent that it is based upon
information which I have given to my counsel, it is true and
correct to the best of my knowledge, information and belief. To
the extent that the content of the document is that of counsel, I
have relied upon counsel in making this verification. This
statement and verification are made subject to the penalties of 18
Pa.C.S. §4904 relating to unsworn falsification to authorities,
which provides that if I make knowingly false averments, I may be
subject to criminal penalties.
DATE: 1999 'v
SUE ANN INTON, as guardian
ad litem for JEREMY L. CHUBB
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Randall G. Gale, Esquire
Attorney No. 26149
Thomas, Thomas & Hafer, LLP
P.O. Box 999
Harrisburg, PA 17106-0999
(717) 255.7646
SUE ANN HINTON, individually
and JEREMY L. CHUBB,
a minor, by SUE ANN HINTON,
his guardian,
Plaintiffs,
V.
THE BALTIMORE RH TYPING
LABORATORY, INC., ROBERT
E. WENK, M.D., individually,
MARGARET BROOKS,
individually, and TERRY HOUTZ,
individually,
Defendants
IN THE COURT OF COMMON PLEAS
OF
CUMBERLAND COUNTY,
PENNSYLVANIA
NO. 99-5023-Civil Term
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF
DEFENDANTS THE BALTIMORE Rh TYPING
LABORATORY, INC., MARGARET
BROOKS AND TERRY HOUTZ TO
PLAINTIFFS' AMENDED COMPLAINT
AND NOW, come the Defendants The Baltimore Rh Typing Laboratory, Inc., Margaret
Brooks, Individually and Terry Houtz, Individually and file these Preliminary Objections to the
Amended Complaint of Plaintiffs Sue Ann Hinton, individually and Jeremy L. Chubb, a minor,
and Sue Ann Hinton, his guardian.
DEMURRER
This is an action in which the Plaintiffs have sued the Defendants The
Baltimore Rh Typing Laboratory, Inc., Margaret Brooks individually, and Terry Houtz
individually, for providing allegedly incorrect paternity testing results pursuant to Court ordered
testing.
2. Plaintiffs allege that they lost their paternity action in Cumberland County Court
based upon the allegedly negligently performed Court ordered paternity testing.
3. The substance of the suit is that communication of false information in a
judicial proceeding resulted in Plaintiffs losing their paternity case resulting in financial harm
and menta) distress.
4. The law recognizes an absolute testimonial privilege or judicial privilege from
suit for the supplying of false information in the context of a Court case.
Absolute testimonial privilege or judicial privilege precludes this medical
malpractice action: Clodgo v. Bowman, 601 A.2d 342 (Pa. Super. 1992); also see, Clodgo v.
Bowman, Dauphin County Civil No. 2606 S 1985, Opinion and Order of August 20, 1990 per
Judge Natale. (copies attached).
WHEREFORE, the Plaintiffs' Amended Complaint should be dismissed for failure to
state a claim.
THOMAS, THOMAS & HAFER, LLP
By
R I G. Gale, Esquire
Attorney ID # 26149
305 North Front Street, 6'h Floor
P.O. Box 999
Harrisburg, PA 1 7 1 08-0 999
74679.1 (717) 255-7648
342 Pa. 601 ATLANTIC REPORTER, 2d SERIES
creation of the security interest Instead,
they pertain to the agreement of We be-
tween appellants and Chrysler made prior
to the mortgage. As a result, the trial
court did not abuse its discretion in striking
this counterclaim.
[31 Appellants' second counterclaim al
leges unjust enrichment Appellants as
sect that Chrysler waited to foreclose on
the appellants' property until after appel-
lants had substantially rehabilitated the
premises, and hence, until after the value
of the property was increased. As a result,
appellants contend that Chrysler would be
unjustly enriched by the forec!osum. This
counterclaim is also not part of or incident
to the creation of the mortgage because
the alleged facts giving rise to this counter-
claim occurred alter the parties were in
default of the mortgage. Such a counter.
claim cannot be asserted in a mortgage
forerlosare aeon. See Mellon Bank j V-4.
v. Joseph, sit-
[41 Finally, aopeflaats' third coante•-
claim asserts a claim for punitive damages.
Specifiafly, appellants allege that because
of the misrepresentations made mod the
fart that Chrysler waited to foreclose, ap-
pellants suffered financial setbacks result-
ing in their filing for banl¢untc7. There-
fore, due to this willful disregard far appel-
lants' rights and interests, appe0aats con-
tend that punitive damages are in orde.
However, the punitive damages sought by
aocellanu are the result of the Let al-
leged in the two prerodmg counterchvns,
which we find are not part of or Incident to
the ceaooa of the mortgage. Thai, the
cour- did not abuse its distredon in .rFring
Cris couaterclnim as well.
In addicon to sz:idag apceilanta' coua-
terclyCs, the cat cour. itruc.k appe!hnts'
u'_•r &e defenses of fraudulent misrep-
resentation, estop ei. Lad inches based on
the requirements of Rule 1148. We agree
with aon !L=3 that Rule 1148 does not
govern the pieading of new matter. How-
ever, it is soca--ent from the record that the
trial court found appellans' of*u dye de-
fenses to be nothing more Clan rntate-
menm or continuations tai their counter.
csima. We agree. To allow appelanu to
bring such defenses would circumvent the
purpose of Rule 1148. Accordingly, we.
affirm the trial court's striking of appe> ,
!ants' counterclaims and affirmative de._.
fences.
Affirmed.
O SII//YYn 14/M1!!F
T
Dustin CLODGO by his Mother and Nab
ural Guardian, Jill CLODGO and Jill
Clodgo in her own right, appellant;,
Herbert S. BOW]L1.Y, M.D.; Harrisburi
Hospital; Harrisburg Hospital Labors;.
tones: Harrisburg Hospital Hematolo
g7 Center, and Harrisburg Hospital Dr{
partment of Pathology.
Superior Court of Pennsylvania.
Argued June 11, 1991.
Fled Jan. 9. 1992. i?.a
]Locher, both in her individual apa
and her moadry as natural gvaraian
child instituted medical malpractice ac!
against physician, hospital, and labor.
r'es to recover for child suppor, she I
due to negligent performance of court
dered blood test conducted during paten
proceeding. The Cour, of Common Pie
Dauphin Counq, Civil Division, No. 2601
1985, Natale, J., granted defendants' p
liminary obieccons in micure of demur
to complaint, and moC:er appealed. 7
Superior Cour, No. 528 Ha=isburg 19
Hester, J., he!d that defendants were p
tested by absolute testimonial pri•rilege i
communications made in conreecon w
judicial proceedings.
A P5=ed.
1. Judges 1-36
Absolute testimonial privilege for p
Ucipanu in judicial proceedings, which
)laid circumvent the
Accordingly, we
striking of appela
nd affirmative de:
'.r111M
s Mother and Nat-
CLODGO and Jill
right, Appellants,
. Sf.D.: Harrisburg
:g Hospital Laborer!,
Hospital Hematolo!
risburg Hospital De=
ally. -
Pennsylvania.
Li, 1991.
a 1992. .. d
individual capacity?
natural guardian of
al malpractice action
spiral, and laboratuo-J
:iid sunoort she lost
ormance of court-or:',
cted during paternity-,-
of Common Pleas'
Division, No. 2606 S;4
..ad defendants' pre-
nature of demurer:'
caer appealed. The`.
-S Ha.:sburg 1990,;
?:endans were pro-
ionial privilege for..
in connec_on with.
.:al privilege for par
r eeedings, which is )
CLODGO BY CLODGO v. BOWMAN Pa. 343
a.. 01 A_rd Scar (hS - 1")
applicable to communications relevant and last due to negligent performance of a
pertinent to those proceedings, insulates court-ordered blood test conducted during a
court-appointed expert witness from liabili- paternity proceeding by appellees, Robert
ty premised upon medical malpractice. S. Bowman, M.D., Harrisburg Hospital,
Harrisburg Hospital Laboatories, Harris.
'!. Judges 4-36 burg Hospital Hematology Center, and
Witness in judicial proceeding is abso- Harrisburg Hospital Department of Pathol-
lucely prottvted against any civil action ogy. Since we conclude that the grant the
that is premised upon communications that demurrer properly rested upon the applica-
are pertinent and relevant and made in lion of the immunity afforded witnesses in
course of judicial proceeding', such privi- judicial proceedings, we affirm.
le, is not limited to defamation and relac-
ed actions.
3. Judges 4-36
Absolute testimonial privilege for com-
mtmimtions made in connection with judi-
tnal proceedings precluded mother from
bringing medial malpractice action against
physicians, hospital, and laboratories to re-
cover for child support she lost due to
negligent performance of counordered
blood test coaduc•.ed during Patesnicr pro-
ceeding.
Donald L. Jones, Middletown, for aooel-
lams.
Randall G. Gale, Harrisburg, for appel-
lees.
Before TA.111LLA. POPOVICH and
=ER, JJ.
HESTER, Judge
Jill Clocigo, both in her individual apac:
ty and in her capacity as natural guardian
and mother of Dustin Clodgo, appeals from
the August 20, 1990 order granting prelimi-
nary obiecttow in the aacare of a demur: -r
to her complaint Appellant instituted this
action to recover for child support Lhat she
1. Appeilees Pn."cmd the teas for the tour.
pursuant to the L'ssiform AV. on Blood Tests to
De:e:^ine Patemry, a! Pa.C5. §§ 6131, el seq.
Seedan 6133 of that Aa provide
§ 6133. AuL4arty for Tat
In sty many. subicct w this subchsptcc in
winch Ym-T''rv• paa'n'a c or ide.JuN of a
chid is a rdcrant fact. the court upon iu own
iNtianve or upon sugaestion a'.ade by or on
beh? of catty prsoo whose blood is involved
may, ... order the maths. a'uld and alleged
(silts to submit to blood tats....
smtan 613+ of that acs provides in rclevant
par, that the -Ir•. shall be nude by expo..^.s
On April 13, 1982, appellant filed a com-
plaint for support of her minor son, Dustin,
in the Court of Common Pleas of Dauphin
County against Gregory Johnson On No-
vember 1, 1982, the court ordered HL.A
Blood Tissue Typing Tests for appellant,
Dustin, and Mr. Johnson at the Harrisburg
Hospital Blood Bank.t On November 19,
1982, appe.Uee Herbert S. Bowman, in a
letter to the court, stated that be had con-
ducted the tests and determined that Mr.
Johnson could be excluded as Dustin's fa-
ther. On November 24, 1982, the court
dismissed the paternity suit against Mr.
Johnson.
Appellant filed a second complaint for
support in the same coast agamst Michael
Durbin on Febraar 24, 19P3. Once again,
the coon ordered mother, cnHd, and the
alleged father to undergo an H1A Blood
Test at Harrisburg P.ospmL Dr. Bowman
conducted the tests and reported that Mr.
Durbin could be excluded as Dustin's fa-
ther. That support att»o was dismissed
by the court on October 15, 1984.
After the second suit Tay dismissed, ap-
pellxm4 who is a registered nurse, com-
pared the results of the two blood tests
pe?ormad by Dr. Bowman and noticed that
qualified as aattiera of blood rlpa. who shall
be appointed by the mar The opera shall be
olld by the corrt as vii a to testify to
their findings and shall be subject to cross,
eumimuon by the panin" Section 6136 of
the An govc.-as the fife,, of the less resulu and
provides thst "ac conditdoos of all the capers
as disclosed by the edA--• based upon the
1. are that the alleged father is not the father
of the child, the quesnan of paternity, parcnuge
ac identity of a child shall be resolved accord.
ingly. If the experts di=pee in their findings
or conclusions. the question shall be submitted
upon all the evidance.'
3.14 Pa. 601 ATLANTIC REPORTER, 2d SERIES
the information in the two tests conflicted.
When she brought the discrepancy to the
attention of Dr. Bowman• he sent a clarifi-
cation letter to the court Dr. Bowman
reported that he had improperly recorded
the blood test results in the tsse of Mr.
Johnson and erroneously excluded him as
the father.
Appellant instituted a second patetmir:
suit against Mr. Johnson on January Id,
1985. On February 21, 1985, the coo
dismissed the suit without giving any ex.
pbnadpn for its decision, although the ac-
tion aooarendy was based on the applica.
Con of the doctrine of res judicaln
On August 6, 1985, appellant instituted
the present civil action against appellees.
The complaint states a ause of action for
medial malpractice and requests as dam.
ages support for Dustin. .Appellees filed
prelimina.7 objections to the complaint
claiming that appellant had failed to state a
claim a; i . n"t appellees by not exnau sing
her remedies against SG. Johnson. On
July 29, 1986, the cal cour. granted appel-
lant fifteen days leave to peddou the court
to open the initial support action against
Mr. Johnson. This action was stayed peed.
ing outcome of that action.
Appellant cued the peddon to open judg-
ment, which was granted by the cal court
on Febraarr 19, 1987. Mr. Johnson appeal-
ed that decision, and on December Il, 1987,
we reversed the decision, concluding that
the pateraity judgment could not be re-
opened due aopeilanes failure to thneiv rue
the petticn to open judgment. Appellant's
petition for ailawance of appeal with the
Suprere Court of Pennsylvania was denied
on Dece_ ber 15. 1988.
11-11 The c•_..^nt ci•r.7 sui: resumed bey
tween Cie two pa=es. The _ al tour: -:en
g?atr: apoe!!e?' pre!i.•n:carv ooiection.s in
the narue of a demurer based on aooiiea.
con of &.e absolute tes::marW privilege
for cor..aunia=ens mace in conne_con
with judicial proceedmg-. This appeal fol-
lowed. The isea e presented is whether the
absolute testimonial prviiege for pa.^c:
pane in Judicial proeeed .141 for commum-
atium relevant and per_?aent to those pre
eeedings insulates 2 coup appointed expen
witness from Icbility premised upon melt
al malpractim We are constrained to
conclude that current aeaw compels the
conclusion that a witness in a judicial pro.
ceeding is absolutely protected against any
civil action that is premised upon commune
cations that are pertinent and relevant and
made in the course of a judicial praceeding
and that the ®munity protects aooellees in
this action.
r. The parameters of the judicial privilege
were outlined by the Supreme court in part
o. Mendel, 510 Pa. 213, 220, 507 A.2d 35j,
355 (1986), quoting Greenberg V. Aetna
Insurunce Ca, 427 Pa. 511, 514, 235 A2d
576, 577 (1%7k "When alleged libelousoi
defamatory maae.n, or statements, or ally
gtions and a*e-meats in pleadings or m'
the trial or argument of a case are perk.'
nent, relevant and material to any issue m,
a cinl suit, there a no a' i lflity tor;
making any of theca" (Emphasis addedJ,`
The privilege applies to rommutaiatiom
which "are issued in the regular course td
judicial proccamgs and which are pesti-j
vent and material to the redress or tehef
sought" /d, 510 Pa. at 221, 50i A.2d it
355 (empbass omired). If the commQ;
lion falls within that category, "no actiaa
will lie" for the commur!mdon. /d at 218,
507 A -2d at Sal. Appellant, not Dr. Bov.1
man, discovered Dr. Bowman's uaforgivr.
ble e.=r, the ear that triggered this her
its of tragic rscumstaaces.
In the present use, there is no doabf
that the commaniation of the a-oneo'is
information exc:ding Mr. Johnson as the
father was made in the course of a judic?l
proceeding. It was made dir-,Jv to the
cour and lidgancs and pursuant to°i
tour's order. Farther, it was material and
re!eva.:t to the paterair, question at issue
in the action. Thus, we must deride whet 1,
er the privilege does not apply solely due tn?
the fact that this action is far media) mal- p`
p mctice instead of a libei or defamation
action.
While the immunity issue has been
dressed most often in the context of d
amation and related aeons, our review
the relevant authority compels us to c
elude that the form of the action is iris
ised upon medi•
constrained to
law compels the
It a judicial pro.
tied against any
upon communi-
.nd relevant and
licial proceeding
ects appellees in
udicial privilege
me court in Post
q, 507, A.2d 351,
•1berg v. Aetna
:. 514. 235 A.2d
aged libelous or
:ements, or all,
pleadings or in
case are perd-
to any issue in
:^l liability for
mphasis added).
communications
,p lar course of ;i
vhich are perti- .'
.etfress or relief
21, 507 A2d at -'
the communia-
:orv, "no action
:ion. a at 218, ..1
t, not Dr. How- '?'
tan's unforgiva-
,.ered this set-in,
.e is no doubt
the erroneous
Johnson as the .
rte of a judicial
directly to the
pursuant to a
as material and l
.cation at issue
;t decide whetn-
;Iv solely due to
or medial mal-
or defamation
CLODCO BY CLODCO Y. BOWMa4Y pa 345
M-401 Aid W tr?svre. Myra
vast to its application. Broom v. Delaware judicial proceedings and was material and
Valley Transplant Program 372 Pa.Su - relevant to it, the privilege applies. Thus,
per. 629. 539 A .2d 1372 (1988), is instruc - while we agree with appellases premise
five. There, a gunshot victim was discover . that this action is not premised upon def.
ed and transported to a hospitaL The vic - notation but is a medial malpractice action.
tim, who had no identification, was de- this does not alter the conclusion that the
c!ared brain dead, and the hospital sought privilege applies.
court permission to use his organs for We recognize that this ease presents a
transplants. The defendant at issue in compelling situation. The doctor has ac-
grown, was the attorney who prepared the knowledged his incorrect recording of the
documents needed for court approval for relevant data, and his error was at least
the organ extractiaq which was subse• Partially the reason that Dustin lost his
quently performed by hospital personnel.
' child support action against Mr. Johnson.'
s fami1v sued for mutibtion of a
The victim However, the maxim is that hard cases
corpse, intentional infliction of emotional make bad law, and as that maxim applies
distress, civil conspiracy, malicious use of herein, we cannot allow an exception in this
process, assault and ba ttry, and negligent case to application of the immunit
infliction of emotional distress. We upheld
' y.
Our review of authority in other states
s dismissal of the aeonev
the trial court reveals that medial malprarie actions
from the action which was premised upon
appliation of the doc.^:ne of judicial immu• have been instituted on the basis of expert
opinions offered in judicial proceedings. If
may. we carve out an exception to the judicial
We stated that the issue was wbetret immunity for medial malprudce actions,
the privh7ege should be limited to prorecton dangerous precedent would resalt E.x•
from liability solely for publication of dr pe; s are cadled upon to offer medial opin-
famatory material We concluded that, lops in a variety of situations in comiecton
'The immunity ban actions jar tortious with judicial proceedings. An example is
behavior ..., so long as it was a communi- the psychiatrist asked to give an opinion of
nation pertinent to any stage of a judicial
- parental competency in a msiody action.
2 PaSuper. at 633-34.
proceeding.,. Id., X If we allow mediml maloracee actions to
549 A.20d at IM (emphasis added); see survive application of the privilege, we
also Noses it McWilliams. 379 Pa-Super. open those experts to potential medial
150, 164, 549 A.2d 950, 951 (1988), wherein malpractice actions premised upon alleg•
we collected cases and obserrtd, "W:hile it edly incorrect assessments of a parent's
is true that immunity from civil liabwry in mental moacirr to are for the children.
judicial proceedings has been anolied most gee, eg., Gootee v. Lfgittrrer, ?04 Cal.
frequently in defamation actions, many App.3d UT r{ CaLRotr
697 (4 Dist1990)
courts, including those in Pennsylvania. .
.
SimiLvly, a doctor who reader an opudon
have extetded the immunity from 670 lia- m to another dwxr's medial malpractice
basin to other alleged tors when they oc- in a civil ae_bn insthated by a patient
car in connection with judicial proceed- would be open to claims of malpractice
rags.,. based upon that exte.R's opinion in the civil
Our precedent is clear. The foram a: the ac=on. This simply cannot be allowed as
arse of acton is not relevant to aooiia- the privilege is necessary to prevent a wit-
ton of the prvxlege. .pegard!ess of the nesses from refusing to testify based on a
tor- contained in the rmplaint if the cam- fear of potential civil GabtLn. The ratio-
muniaton was made in cannecton with a tale for the immuniy applies just as
a has been ad- fiow.evc. we cony?;< t:>,t appciiant was rrulac Frhe:-tore, from our prior decision.
?ontext of def. - , not prcc!uded hom p.:ry n; he :ion ayatnst it appears that appe!lanrs isubiGry to pursue
. our review of Str. ]pinion apathy due to .he test reuitt she Se: support anion againv Sir. Johnson rats at
?e!s us to con. free to orde he own teung, and the 1= paraily an her Luc} of due diligence in
suture, n Doted in footnote one, s+., 2 Ira seciing to reopen the support anion once she
1r, t'On i9 irrele- vide for eosseumitunon 11 to the blood tat raliud the tat molts were isprreca
346 Pa 601 ATLANTIC REPORTER, 2d SERIES
strongly to medical malpmctice actions as
to any other type of civil action. Accord-
ingly we cannot allow an exception to the
doctrine of judicial immunity where the
cause of action contained in the complaint
is medical malpractice.
.accordingly, the order is affuvned.
dvity may be afoot U.S.C.A• Coast
Amend. 4.
2. Arrest ?6.1.5(3)
Here presence near a high crime arei?
or in the vicinity of a recently reported
crime, is not enough to warrant a Terry`
stop. U.S.C... Const.Amend. a.
3. Arrct X63.5(4)
0 3nr.w?r rnn• ':
r Off-leer must observe irregular behav
for before he initiates an investigatory stogy
and, concurrently to his Observation, hg
most hold a belief that criminal activity':
afoot. U.S.C.A. ConstAmend. 4.
1
)
COHMONWEALTII of Pennsylvania
Y.
Robert EEARNEY, Appellant
Superior Court of Pennsvivania.
Argued Nov. 21, 1991.
Fued Jan. 13, 199•-2
Defendant was convicted before the
Court of Common Pleas of Phtilade!ohin
Counrv, Cr!nin,l Division, at 1657, 1650,
1660 October Term, 1989, Jackson, J., of
aggravated assault, possessing an inscru.
menc of came, and carrying a firea.-m on a
public sheet without a Grease, and he ao,
pealed The Superior Comm No. 32,' 1 Phil.
adelphia 199, Hoffman, J., held that (1)
inves::gatom stop of defendant was suo-
pored by reasonable suspicion that he was
involved in selling drugs, and l2) police had
probable cause to arrest defendant when
he Pointed revolver at officer who was no-
proaching defendant to cake invesagawr:
stao.
??_ _Xmei
Pocovieb. J., anent-,TM in resu!L
1. Arrct d?i:aiJ)
In limited cit.-rstances, irdn• duai
may be stooped acid brely detained: in
order for such a Stan to be reasonable
under the Fourth Amendment, police must
have a easonabie Suspicion, based on Sce-
ctic and articSlable facts, that criminal ac
4. .Arrest 6-63.5(5)
Reasonable suspicion existed to jus
investigatory stop of defendant, where t
cer responding to complaint of drug d
ings in block observed defendant stand
net to another person at comer, and
three dir.'erent occasions people
Preached defendant's comcardon, hand
cash to him and then taldttg object that
retrieved from his packed after tfi
tansaction occurred, of::cer observed',
fenciant and other man leave corm
U.S.C-k Coast amend. 4. •
i Arrest 4-63.4(15)
Police had probable cause to at
defendant when afftcer who had put
jacket and baseball cap identifying him;
M a police officer sarced toward defend
to efiec an investigator. stop, and ai
approached defendant, defendant Pointe
revolver at him US-C_?. Const4mend
6. Criminal Law e-1063(4)
Defendant waived contencon an app
that ;.here was insufficient evidence to st
car verdict where he did not raise gene
sui5cdenci of evidence contention in pot
L^Z! mOL01's.
Jay Heyem. Phi!adeiphia. `or so[
Hacne Stodand, .?sL DISL Atty.,
Mphia, for Com., appellee.
Before CAV.ANAUGH, POPOVICH
BOFFNIAN, JJ.
DUSTIN CLODGO, by his mother and IN THE COURT OF COMMON PLEAS
natural guardian, JILL CLODGO, and DAUPHIN COUNTY, PENNSYLVANIA
JILL CLODGO, in her own right
Plaintiffs
vs. NO. 2606 S 1985
HERBERT S. BOWMAN, M.D.;
HARRISBURG HOSPITAL; HARRIS-
BURG HOSPITAL LABORATORIES;
HARRISBURG HOSPITAL
HEMATOLOGY CENTER; and
HARRISBURG HOSPITAL DEPART-
MENT OF PATHOLOGY, Defendants
OPINION
Presently before the Court are defendants' preliminary objections
to plaintiffs' complaint.
In April, 1982, plaintiffs filed a support petition against a Mr. Gregory
Johnson. Harrisburg Hospital (a defendant in the case at bar) conducted blood
tests several months later and issued a report excluding intr. Johnson as the father.
Relying on this report, this Court entered an Order on November 24, 1982,
dismissing the action. A little over a year later, plaintiffs filed a second support
petition against a Mr. Michael Durbin. Harrisburg Hospital conducted blood tests
several months later and issued a report excluding Mr. Durbin as the father.
Relying on this report, this Court entered an Order on October 15, 1984, dismissing
the support action against him.
On December 10, 1984, Harrisburg Hospital notified the Domestic
Relations Office that the results of the blood tests done on blr. Johnson were
erroneously reported. In actuality, the blood tests done on Mr. Johnson did not
exclude him from being the father of the minor involed. In January, 1985,
plaintiffs filed a second support petition against ,Mr. Johnson which this Court
..?(-`I
denied on February 21, 1985. Six months later, plaintiffs filed the current action
against defendants claiming that child support was denied because of defendants'
negligence in providing an inaccurate blood test report. Defendants responded
by filing preliminary objections in the nature of a demurrer.
This Court, by Order and Opinion dated July 29, 1986, staved the
current action and gave the plaintiff 15 days to petition to open the judgment
in the initial support action (Clodgo v. Johnson, No. 722 DR 1982). Plaintiff filed
her petition to open and it was granted by this Court on February 20, 1987.
That decision was reversed by the Superior Court of Pennsylvania on December
11, 1987. (No. 161 HBG 87) The Superior Court found a lack of due diligence
on the part of the plaintiffs. The plaintiffs herein petitioned the Supreme Court
of Pennsylvania but it was denied on December 15, !988. (5 M.D. Allocatur Docket
198)
Hence a decision must now be rendered on the defendants' preliminary
objections in the case at bar. With regret, the Court finds it must sustain the
demurrer.
THE ISSUE
Do the defendants enjoy an absolute testimonial privilege?
DISCUSSION
Although this case is brought on negligence and medical malpractice
claims, the substance of the suit is that the communication of false information
in a judicial proceeding resulted in plaintiffs' losing their paternity case, resulting
in financial harm and mental distress.
The defendants prepared the blood test report for the Domestic
Relations Office of Dauphin County and the Court of Common Pleas of Dauphin
-2-
County pursuant to the Uniform Act on Bbd Tests to Determine Paternity, 42
Pa.C.S. 46131 et seg. Section 6133 of that Act provides as follows:
46133. Authority for Test.
In any matter subject to the sub-
chapter in which paternity, parentage
or identity of a child is a relevant
fact, the court upon its own kidative
or upon suggestion made by or m behalf
of any person whose blood is mwlved
may, or upon motion of any party to the
action made at a time so as rat to delay
the proceedings unduly, shall order the
mother, child and alleged father to submit
to blood tests. If any party rdmes to
submit to such tests, the court may resolve
the question of paternity, parentage or
identity of a child against such party, or
enforce its order if the rights of otters
and the interests of justice so require.
It is provided in 42 Pa.C.S. 36134 that:
36134. Selection of Experts.
The tests shall be made by experts qualified
as examiners of blood types, ado shall be
appointed by the court The experts shall
be called by the court as witniesses to
testify to their findings and sing be
subject to cross-examination by the parties.
Any party or person at whose suggeston the
the tests have been ordered may demand that
other experts qualified as exatoioe s of blood
types perform independent tests coder order
of court, the results of which may be offered
in evidence. The number and gealifications
of such experts shall be determined by the
court.
It is provided in 42 Pa.C.S. 36136 that:
46136. Effect of Test Results
If the court finds that the conclusions
of all the experts as disclosed by the
evidence based upon the tests ze that the
alleged father is not the father of the
child, the question of paternity, parentage
or identity of a child shall be resolved
accordingly. If the experts disagree in
their findings or conclusions, the question
shall be submitted upon all the evidence.
-3-
The Act makes it clear that experts such as the defendants are
appointed by the CourtI and shall then be called to give evidence as to their
findings. A court's suggestion to a county probation office to arrange the tests
has been held as a court appointment in compliance with this Section. Heller
v. Bush, 13 D&C 3d 506 (blonroe 1980).
The law recognizes an absolute testimonial privilege from suit for
the supplying of false information in the context of a court case. Block v.
Sacramento Clinical Labs, Inc., 131 Cal.App. 3d 386, 182 Cal. Rptr. 438 (1982)
(lab supplying erroneous report to district attorney's office enjoyed absolute
privilege from suit); Triester v. 191 Tenants Association, 272 Pa.Super. 271, 415
A.2d 698 (1979); Binder v. Triangle Publications, Inc., 442 Pa. 319, 275 A2d 53
(1971); Restatement of Torts (Second) 4588.
The Court is aware that the results in this case are very harsh vis
a vis the plaintiffs. However, the law fully protects the defendants. it might
be noted that there is a public policy argument to be made for the plaintiffs-
clearly the best interests and welfare of this minor child would be served by
having a financial source of support. The interests of our society in seeing minor
children supported are obvious to all. Whether this public policy should outweigh
the legal protection afforded these defendants is a decision to be made by our
Supreme Court. This Court is not inclined to rewrite the law.
IQuery whether this appointment might not give rise to an issue of judicial
immunity as well as testimonial privilege.
-4-
The defendants have raised several other preliminary objections which,
in view of this decision, are rendered moot.
For the foregoing reasons, defendants' demurrer to plaintiff's complaint
is granted.
BY THE COURT:
Sebastian Natale, judge
Distribution:
James Pannebaker, Esquire
Randall G. Gale, Esquire
-5-
DUSTIN CLODGO, by his mother and IN THE COURT OF COMMON PLEAS
natural guardian, JILL CLODGO, and DAUPHIN COUNTY, PENNSYLVANIA
JILL CLODGO, in her own right
Plaintiffs
Vs. NO. 2606 S 1985
HERBERT S. BOWMAN, M.D.;
HARRISBURG HOSPITAL; HARRIS-
BURG HOSPITAL LABORATORIES;
HARRISBURG HOSPITAL
HEMATOLOGY CENTER; and
HARRISBURG HOSPITAL DEPART-
MENT OF PATHOLOGY, Defendants
ORDER
h
AND NOW, this L40 day of August, 1990, upon consideration
of defendants' Preliminary Objections to Plaintiffs' Complaint, and in accordance
with the Court's Opinion issued this date, defendants' demurrer to plaintiffs'
complaint is granted. Accordingly, plaintiffs' complaint is dismissed with prejudice.
O- J L'! . .
foregoi .
j);e:?bue and cc:rr?e,. ?a47 1
lea o,lod. ?.
?-1na1
or.e ?.Y_ r.>•.. ?a ?
Distribution:
James Pannebaker, Esquire
Randall G. Gale, Esquire
CERTIFICATE OF SERVICE
I, Randall G. Gale, Esquire, Thomas, Thomas & Hafer, LLP, Attorneys for Defendants
The Baltimore Rh Typing Laboratory, Inc., Margaret Brooks, individually and Terry Houtz,
individually do hereby certify that a copy of the foregoing document was served upon the
following by enclosing a true and correct copy in envelopes addressed as follows, postage
prepaid, and depositing same in the United States Mail at Harrisburg, Pennsylvania, on the
?/ /"' day of 1.% "- , 1999:
Susan Kay Candiello, Esquire
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
Michael M. Badowski, Esquire
Badowski, Banko, Kroll, Kronthal and Baker
P.O. Box 932
Harrisburg, PA 17108-0932
THOMAS, THOMAS & HAFER, LLP
By?-
Rahde l G. Gale, Esquire
3
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SUE ANN HINTON, INDIVIDUALLY, IN THE COURT OF COMMON PLEAS
AND JEREMY L. CHUBB, A MINOR, OF CUMBERLAND COUNTY, PENNA.
BY SUE ANN HINTON, HIS GUARDIAN,: CIVIL ACTION - LAW
PLAINTIFFS,
VS.
DOCKET NO. 99 CIVIL 5023
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS. JURY TRIAL DEMANDED
O R D E R
AND NOW, this of , 1999, in
light of the Preliminary Objections of Defendant, Robert E. Wenk,
M.D., IT IS HEREBY ORDERED that the Complaint is dismissed in its
entirety as to Defendant, Robert E. Wenk, M.D., as absolute
testimonial privilege applies.
BY THE COURT:
MICHAEL M. SADOWSKI, ESQUIRE
Pa. Supreme Court I.D. No. 32646
LAURALEE B. BAKER, ESQUIRE
Pa. Supreme Court I.D. No. 58874
SADOWSKI, BANKO, KROLL, KRONTHAL AND BAKER
A Professional Corporation
101 Pine Street
Poet Office Box 932
Harrisburg, Pennsylvania 17108-0932
Telephone: [717] 236-3200
Fax: [717] 236-6863
E-Mail: bbkkb®epix.net
Direct E-Mail: badowski®epix.net
lbbaker®epix.net
Attorney for Defendant:
ROBERT E. WENK, M.D.
SUE ANN HINTON, INDIVIDUALLY,
AND JEREMY L. CHUBB, A MINOR,
BY SUE ANN HINTON, HIS GUARDIAN,:
PLAINTIFFS,
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY, PENNA.
CIVIL ACTION - LAW
DOCKET NO. 99 CIVIL 5023
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS. JURY TRIAL DEMANDED
PRELIMINARY OBJECTIONS OF DEFENDANT
ROBERT E. WENK. M.D.. TO PLAINTIFFS' AMENDED COMPLAINT
AND NOW, comes Defendant, Robert E. Wenk, M.D.
(hereinafter "Dr. Wenk"), by and through his counsel, Sadowski,
Banko, Kroll, Kronthal and Baker, a Professional Corporation, to
preliminarily object to Plaintiffs' Amended Complaint as follows:
1. PROCEDURAL HISTORY.
1. This is a professional liability action commenced
by Plaintiffs, Sue Ann Hinton, individually and as the guardian
of Jeremy L. Chubb, a minor ("Plaintiffs"), by way of a Complaint
filed on or about August 18, 1999. A copy of Plaintiffs'
Complaint is attached hereto, incorporated herein by reference
and marked as Exhibit "A."
2. On or about September 16, 1999, Dr. Wenk filed
Preliminary objections to Plaintiffs' original Complaint among
which included a demurrer. (A copy of Dr. Wenk's original
Preliminary Objections are attached hereto as Exhibit "B."
3. Thereafter, Plaintiffs filed an Amended Complaint
which did not address Dr. Wenk's demurrer preliminary objection.
A copy of Plaintiffs' Amended Complaint is hereto attached,
incorporated herein by reference and marked as Exhibit "C."
II. PRELIMINARY OBJECTION IN THE NATURE OF A DEMURRER PURSUANT
TO PA. R. CIV. P. 1028(a)(4).
4. As continued to be reflected in Plaintiffs' Amended
Complaint, the asserted basis for the suit against all of the
named Defendants, including Dr. Wenk, is an alleged negligently
incorrect reporting of paternity test results submitted pursuant
to court ordered testing.
5. The underlying substance of Plaintiffs' suit is the
alleged communication of negligently incorrect/false test results
in a judicial paternity proceeding.
- 2 -
6. Under the law in Pennsylvania, all the named
Defendants, including Dr. Wenk, are protected from suit by
absolute testimonial privilege for communications made in
conjunction with judicial proceedings. Clodgo v. Bowman, 601
A.2d 342 (Pa. Super. 1992).
7. As the Court ordered the paternity blood testing at
issue, Dr. Wenk has immunity from any claim for tortious
behavior, including medical malpractice.
8. Dr. Wenk is absolutely immune from liability on the
basis of judicial testimonial privilege and, accordingly, this
action should be dismissed in its entirety as against him.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests that your Honorable Court grant his
preliminary objection demurrer and dismiss Plaintiffs' Amended
Complaint with prejudice.
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
Dated: ?d zS By:
l-
MICHA L M. BADOWSKI
U EE B. BAKER
At orneys for Defendant,
ROBERT E. WENK, M.D.
- 3 -
Exhibit A
09i1V99 FRI 08:20 FAX 1 410 785 .1870 MEDICAL Mt=AL
?P-01-1999 i0: $9 MLT1n-W ;zN TYPING LFa
410 -'M 8938 P. eV12
SUE ANN RNTON, individually and 1 IN THE COURT OF COMMON PLEAS
bMMp4y L C UBM a minor, : CUMBERLAND COUNTY,
by SUE ANN MNTON, his 6ua dlao. PENNgYLVANLA
Plaiodirs
TEM BALM MORB RH TYpING
LABORATORY, INC,
ROBERT E WENK, ALD., indMdualy,
MARGARETBROOKS, individually,
and TERRY aoUZ, indivldua27'
Defendants
Cri]L ACTION - LAW
e xo. '?9_ 5003 CL!,? Term
I JURY TRIAL DEMANDED
N01=
You have been sued in court. If you wish to defend againn the claims set forth in the
following page4 you rmrat take anon within tweary (20) days after this complahit and notice are
served, by enuring a written appearance personally or by aaonuy and filing in writing with the total
Yom def== or objections to the claims set for ib against you. You are warned that ifyou Pail to do
ao the CUP My proceed without you and a judgment may be entered against you bythe court withotu
fimber notice 9tr Say tacaoy claimed in the complaint or for any other claim or relief requested by
the plaintiff You may loos money or property or other rights important to yoa.
YOU SHOULD TAKE THIS PAIM& TO YOURLAVIM AT ONCE, IF yOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FDM OUT WHERE YOU CAN GET LEGAL HE p.
Cumbvland County Bar Association
2 Liberty Aveane
Carlisle, PA 17013
(717) 249-3166
'rRLtc DpY FF.Ohi RECORD
in Testimom/ era sot, 1 fare unto set my hang
and t`e Seat Of WA Coo at Carlfs',e. Pa,
M f0-Lo day „4LL' - 19Qgx -
2002
PmflwnoUry
09/10/99 FRI 08:20 FAI 1 310 785 1870 31EDICAL ULTi'AL Qb003
EV-01-1959 1059 BALTIMORE RN TYPI-!G LAB
410 383 0938 P. M,112
SUE ANN IDMN, individually, and IN THE COURT OF COMMON PLEAS
JEREMY L. CEO B, a minor, s CMU ERLAND COU?TY,
by SUE ANN HIN1' N, yp Swunlian, PLYNSYLVANIA
Plaiatlfi
V
THE BALTIMORE RH TYPING t CIVIL ACTION -LAW
LABORATORY, INC., s NO.
ROBERT L WlM M.D., individually,
MARGARET BROOKS, iodividaady, ;
and TERRY H0U17.9 iudviduagy,
Defendants
AND NOW, comes the plaintiffs, SUE -ANN R NTON, individually and MLLMy L
CHUBB, a minor, by SLJE ANN E3NTON, his guArdiar, by and through thcir attorneys, Oasis &
Associates, P.C., and respectgnlly represeats as fo[lowa:
1. Plaintiff SL'E ANN HINTON (hereinafter referred to as "Plaintiff Mother', is an
Adult individual redding at P.O. Box 3708, Harrisburg Daupbin County,
Commwrweahh OfPenasyivania, 171IS.
2. Plaintia JMUW L: CHL'BB (haeina referred to as `Rlaiatiff Son'), is a minor
cMd residing with PlaintdfMother UP-O. Box 3708, Harrisburg, Dauphin COUVI,
Commum realth of peon yiVania, 17115.
3. Def mdant, THE BALTIMORE RH TYPING LABORATORY, INC.. hereinafter
refrrred to as ('Defendants'), i9 a Maryland Corporation, registered and doing
business in the state of Maryland it 400.402 West Franklin Street, BahimoM
.Maryland, 21201.
09/10/99 FRI 08:20 F..AS 1 410 783 16TO MEDICAL MLTCAL (1007
SEP-01-1999 1100 BALTIMXS RH TYPING LF9 410 383 0933 P.04/12
4. Defertdaat's resident agent and business address for the resident agent is, P1dII.> Z
J. GOIMSTEIN, resident agent, 400 west Praeldin Straet, BaitimoM Maryland,
21201,
S. On or about April 26, 1988, Judge Harold E. Shealy, of Cumberiaad Couaty court
of Common Pleas, appointed the Defend= to perform Red Call and WA Blood
Grouping Tests on the PlainffNinther, Plautdff Son and James R Chubb.
6. On or about July 12 , 1988, the Defmdam petfomted these v&hM4 blood testa of
which Red Cell and HL A tests were two (2) of several tam pb*med,
7. The Defends= performed these various blood tests upon samples of blood from the
Plain:ZMother, Plaintiff Son and the fatha ofPlaSots, James IL Chubb.
8. On or about July 12, 1988, the Defendant produced & Written report ofthe results of
the various blood tests, as stated in paragraph 6 above, which the Defendant
Performed upon the blood samples of the patties, 93 stated in Paagrepb 7 above.
9. The written report stated various specar= tests revohs and then summarized the test
results by stating:
"On, the basis of these tests, (Chubb,. James IL) can be a coluded
as the father of (Chubb, Jeremy L) for the fbUowing stmons.
1. The child has a genetic marker (A33) in the MA system
which is absent in the mother and cannot be demonsu ed in the alleged
Wber.
2. The child has a genetic marker (1314) in the IMA syacta
which is absent in the mother and cannot be demonstrated in the alleged
09/10/?b FRI 08.21 FAS 1 110 ;es 1670 BEDICAL UUMAL
Zoos
SE'-0!.-1999 1180 BALTIMORE RH T-PING LAS 410 ;83 0978 P.W/12
6.1er "
10. Asa direct result of the written report provided to judge Shealy, bythe Defendant,
Judge Shealy issued an order on July 19, iggs, diuniaaing the PIUnt ff Nlothes s
complaint for support based upon the Aefendeat's statements and their test results
which o tcluded James R Chubb as the possible father of Plaintiff Son.
11. Plaintiff Mother telephoned tbs Defendant on several occasions, stating wM
conviction, she knew James R Chubb was the father of her son and asidng whether
the Defendant might bave made an ator in their tests.
12. The Defendant statod the same answer to the Plaintiff Mother each time she
telephoned the Defendant, "M tests results are corns, they never make
mistakes".
13. On or about 1996, Plaintiff Son was disgtwsed with a serious neurological disorder,
Tourette Syndrome.
14. PWoraMother never stopped betiwtng the Defendant had made an error in their
tests, but Plaimiff4to.ther had no objective proof; nor the ability to obtain such proof
urd Plaintiff Son developed Toumtte Syndrome, which empowered PWmfffMother
with the additional support needed to resume the legal action to identify the biological
father ofPlaimifFSom
15. The physicians and therapists of the PL*rd ' Son needed the medical history of the
Plaintiff Son's father to aid them in thenecessary andpropertreatmemofthePW=iff
San.
16. Plaintiff Son also wanted a focus! adjudication and deteetiation of the identify of
09/10199 FRI 08:21 FAX 1 410 %5 1870 MEDICAL MCI'CAl.
2006
SER-01-1999 :11130 EFL IMCRE IN TYPING LAB 4113 303 0939 P.&9/12
his father to obtain the emotional AgMmmt and p*V4ologi ad aatisfaeeian to fill the
void wbkh had been caused by not !mowing the trite idmtrfy of his father.
17. Match 2, 1998, Plaintiff Mother Mod a second support action against Item R.
Chubb, but this support action was denied based upon the Ddbcdam'a report afthe
test result which were performed by the Defendant and reported to Judge Shealy on
July 12, 1988.
18. -%Ow&31,1998, upon IAingofaMcdonfbrReccrWderadoaoftheMarr„h2, 1998
decision, a Rulo to Sbaw Cause way issued upon James R. Chubb, to submit to
additional tests to determine the patanhy of pWnt ff Soa.
18. Deeember8,1998, Plaintilfldotber, PlaintiffSonandJames& Chubb provided blood
samples to be utilized in fluthar resit to be done by, N= Diagnostics A l ifewdes
Company.
19. Micro Diagnostics perfbrmedDNA testing upon each ofthe individuals identified in
paragraph 18, the asu is of the tests indicated James R. Chubb could not be excluded
AS the Plaimfff Son's biological father.
20. Nficro Diagnostics performed the EMA tenia& which had been prayiousiyperfmMed
upon the PlaimiffMother and James R Chubb, by the Defendant in 1988.
21. The HLA test results which Mttso Diagnostic performed upon the Plainti ff Mother
were the same as the Defmdaat had obtained when doing these tests in 1988.
22. The H Awstresultswhich..yfiicro Diagnostics; performeduponlamesR. Chubb were
totally differ m.
23. The HI.A test results which Hcro Diagnostics performed could not exclude James
08/10/89 F.:I 09:21 FAX 1 410 M 1670 MEDICAL UU=AL
-e"i-1999 111W BA.T,MOM FN T!PItG LAB
410 2W a= P.07i12
R Chubb u the biological father of the Plafafiff Son.
24. Nero Dlagnosdcs tat rewlta iedieate a 99.99% probability of puemity ofplsindS
Son by James R. Chubb.
2S. PLsiatals now file this civil comPWW to begin this lawndt in Cumberland
County, Fcaa ytveaia.
CO_ M I
UraLlaNCE BY D Fc*PDA[i1' RALTIl?LO "W "A
TYPING LABORATORY, IN
26. Paragraphs 1 through 25 of this Complaint ere hereby incorporated by refaraca
27. The Defendant holds itaeif cut to the public as a laboratory with the lmowledge,
atoll and experience necuary to perf3uta those special blood tests needed to
accurately determine the biological parents of children.
23. When offering the service, stated is puagraph 27, to the public the Defendant
accepts great and agmficam responsibility. When the Defendant agrees to
perfbrm tau to determine the biological parents of a ciald, the test results affect
every upeet of the parent and child's lives.
29. The outcome of the tests which the Defendatn performs affect the parem sad
child's life payohologically, physically, financially and socially.
30. The Defeo accepted the responsibility to determine whether Irian K Chubb
was the biological Saba of the Plaintiff Son
12007
09/10/99 FRI 08:22 FAZ 1 310 785 3070 HEDICAL JIMAL 0008
SEP-01-1999 1101 BALTT:OZRF RH TYPING LAB 410 M3 0938 P.OW12
31. The Defendant performed various tests, including Red Cell and HLA, upon the
blood samples of the PlaintiffMot}ss, ptahmE Son and James It Chobb.
32. he Defeodam provided r=dU ofthese tats to the Cumberlaad County Court of
Common Pleas, with the unstated, but underlying implication these tests were
correct and reliable.
33. Despite Plaintiff Mothet's repeated efforts to question Deftmdem.s test resuhs, the
Defendant never took any action to review or question their own test readta.
34. Only After Plaimi$ Son developed a serious medical condition which made it
critical for the medical history ofPlaiatiff son's fatbm to be discovered and
Plaintiff Mother's personal knowledge of the identity of the biological father
coupled with her stubborn pe seversace within the legal symut, was additional
tesq pechrmcd which revealed the false results from the tests which the Defendant
performed..
35. The Defendant was negligent in fhiling to meet the duty which it had undertaken to
the PlaintiffMother and Plaintiff Son to correctly and accurately determine
whether James P. Chubb was the biological father of the Plaintiff Son.
36. The Defendant was negligent in fa37ing to meet the duty which it bad to take all
necessary actions and precautions in the performance of these tests to insure the
test results were reported accurately.
37. The Defendant was ngEgem in far7mg to take any action in response to the
PldmeMothces repeated statements that the test results which the Defendant
reported were incorrect.
09110/.99 FRI 08:22 FAh 1 410 785 1870 MEDICAL UUMAL
009
SEP-01-1999 11+01 BALTIMORE RH TYPING LAS 410 383
0938 P.09/12
38. As a direct and proximate result of the Deieodaat's aegligeme, plaiOWMather
su$errd the soe"i labd of an unwed mother with a child of an unknown father.
39. As a direct and proximate remit cfl)dkmdaots negugema.
, PlaiatiffMother
suffered great embarrassment and bsasilistioa from friends and relatives as a result
of the test results indicating she had been sexotaily involved with another tam, in
addition to, Jatnes R Chubb.
40. As a direct and prmdmate result of the DefendantCs wegence, plainteMother
stifered substamW 6sandal diffwidties, as a result of the loss of the bioloaieal
fisher's additional financial support in raising Plaintiff Son
41. As a direct and proximate r=jh of the Defendant's negligeoce, plsinta'Mother
suffered substatcw Psychological stress as she had to oopa alone with the tasks of
pang a son and in addition to that a son who was diagnosed with a serious
42. As a direct and proxdmate result of the Defcndaat'a negligence, PlaintiffMotha
had to endure the fntsaad= and anger as she fought the legal syatese to prove that
James It Chubb was the biological thther of Plaintiff goo
43. As a direct and pmxdmste result of the Dekadata's negligence, Plaintiff Son
aitl3sred the social embarrassment and hunuliation of not having a father present in
his life.
44. As a direct and proxdmate result of the Defendant's negligence, Plaintiff Son
suffered the sw.al umbattassramt and ;.V=Uzd= of not even knowing the
identity of his ;other,
09110/99 FRI 06:22 F.U 1 410 765 1670 IIEDIJAL lt.'ICAL
9FP-rtl-1999 11:01 DFlLTIMORE RH TYPING LAS 410 383 0938 P. W12
45. As a direct and prmdmate rmuk oftbo Defendant's negilgeaee Son
setffered the psychological trauma and depnavadon which occurred Sam the
absemca of any (mown father figure in the Plaintiff Son's WC.
WHEREFORE, Plaintiffs SUE ANN MMTON and JEREMY L, CaM reapectfuily
requests tbis Honorable Court to enter judgement in their ihvor against the Defendants,
BALTWORE RE TYPING LABORATORY, ROBERT L WENX MD., individually,
MARGARET BROOKS, individually and TERRY HOUTZ, individually, for damages in an
amount exceeding 535,000.00, for damages pas, present and future medical cgxwes, pain and
ax5ring, psychological stress and trauma; attorneys' fees and coots; and for such bather and
additional reliefas this Honorable Court deems just and proper under the dmtmstaucca,
COUNT II: AC't't01V AG truer
RAL
FOR VILA tntJS to Rut trv rant . n.4
OMYASIONS OF STAFF AuvD El1iFi OYEHcu
46. The averments of the foregoing paragraphs I through 45 are incorporated herein
by reference.
47. At all times relevam herao, the staff and the employees were the agents, Ostetltlble
agents and/or agents by estoppel oftbo Defendant
49. At all times relevant herao, the staff and employees was acting width the scope
of their employment and/or agency with the Defendant, with the permission and consent of the
Defendant, subject to the control of the Defandant, and in frutherance of the Defixdact s imaasm
49. The DdS zdart is vieaiously liable for the damages caused by the negligent
Qo10
conduct of the staff and employees w more particularly described herein,
09/10'99 FRI 08:23 FAX 1 410 785 1870 MEDICAL UUMAL 1101
SEF el-1999 11:01 BALTIMORE FH 1YP?PIG LAB 410 383 0938 P.11/12
W1EREFORE, Plaintiffs SUM ANN EMON and JERMY L. CHUBB
re5peafuIlY requests this Honorable Court to inter ju ftemem in her fiver and against the
DefcadaaL BALTIlMORE R8 TYPING LABORATORY, ROBERT 3L WENK, M.D.,
individually, MARGARET BROOKS, individually and TERRY NO= Individually, for
damages in an amount exceeding $35,000.00, for damages put, present and future; medical
expenses, pain and suifsing, psychological stress and trauma; attorneys' lees and costs; ad for
such 5uther and additional relief as this honorable Court deems just and proper under the
circumstances.
RespectWy submitted,
Gazes A Associates, P.C.
DATE_ August lt? 1999
---Suun Kay Can Fitquire -!v
Corols 1forP 4r
Supreme Ca¢t M. 64998
1013 Mumma Drive, Suite 100
Lemayne, PA 17043
(717) 731.9600
Exhibit 8
MICHAEL M. BADOWSKI, ESQUIRE
Pa. Supreme Coart I.D. No. 32646
LAURALEE B. BAKER, ESQUIRE
Pa. Supreme Court I.D. No. 58874
SADOWSKI, BANKO, KROLL, HRONTHAL AND BAKER
A Professional corporation
101 Pine Street
Post Office Sox 932
Harrisburg, Pennsylvania 17108-0932
Telephone:
Fax:
E-Mail:
Direct E-Mail:
(7171 236-3200
17171 236-6863
bbkkb@epix.net
badowski@epix.net
lbbaker@epix.net
Attorney for Defendant:
ROBERT E. WENK, M.D.
SUE ANN HINTON, INDIVIDUALLY, IN THE COURT OF COMMON PLEAS
AND JEREMY L. CHUBB, A MINOR, OF CUMBERLAND COUNTY, PENNA.
BY SUE ANN HINTON, HIS GUARDIAN,: CIVIL ACTION - LAW
PLAINTIFFS,
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.; ROBERT E.
WENK, M.D., INDIVIDUALLY;
MARGARET BROOKS, INDIVIDUALLY;
AND TERRY HOUTZ, INDIVIDUALLY,
DEFENDANTS.
DOCKET NO. 99 CIVIL 5023
JURY TRIAL DEMANDED
PRELIMTN uY OB QTTON O DEFENDATvT
ROBERT E _ P1EIM M.D., TO PLAINT TFF
nMDT DT
AND NOW, comes Defendant, Robert E. Went„ M.D. ("Dr.
Wenk"), by and through his counsel, Sadowski, Banko, Kroll,
Kronthal and Baker, a Professional Corporation, and preliminarily
objects to Plaintiffs' Complaint and assigns the following
reasons therefor:
1. This is a professional liability action commenced
by Plaintiffs, Sue Ann Hinton, individually and as the guardian
of Jeremy L. Chubb, a minor ("Plaintiffs"), by way of Complaint
filed on or about August 18, 1999. A copy of Plaintiffs'
Complaint is attached hereto, incorporated herein by reference
and marked as Exhibit "A."
2. In their Complaint, Plaintiffs generally allege
that The Baltimore RH Typing Laboratory, Inc. ("the Laboratory)
was negligent in its interpretation of blood testing to determine
paternity, thereby causing financial and emotional distress for a
ten year period.
I. PR •TMT2v* ay OBJECTION IN THE NATURE
TO PA. R_ Tv P. 1028(.)(4) (COURT r m.
IS INSIILATED FROM LIARTLTTy PREMIC n groN ____
MALPRA TT .),
3. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
4. In their Complaint, Plaintiffs plead that on or
about April 26, 1998, Judge Harold E. Sheely, of Cumberland
County Court of Common Pleas, appointed the Defendant to perform
the paternity testing at issue. See paragraph 5 of Plaintiffs'
Complaint.
5. In following paragraphs, Plaintiffs contend that it
was this court ordered blood test that eventually led to the
improper analysis of the blood samples resulting in the negligent
behavior.
6. As a result of the alleged negligent interpretation
of the court ordered blood tests, Plaintiffs seek damages for,
intez alia, financial support lost due to the negligent
performance of the court ordered blood tests.
2 -
7. Defendants ordered by the court to perform such
studies as a court ordered blood test are protected by absolute
testimonial privilege for communications made in connection with
judicial proceedings. Clodgo v. Bowman, Pa. Super. __ 601
A.2d 342 (1992).
8. As the court ordered the paternity blood testing at
issue, Dr. Wenk has immunity for any claim for tortious behavior,
including medical malpractice.
9. As Dr. Wenk is immune from liability in any court
ordered proceeding, this action should be dismissed in its
entirety against him.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court to dismiss the Complaint in its
entirety as to Defendant Wenk as he is immune from any liability
based on the facts as pled in Plaintiffs' Complaint.
II. PRELIMINARY nA.TVrrmrnwr r..
ACTION AGATNST DR WEN )
10. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
11. In the caption of Plaintiffs' Complaint,
Plaintiffs name Dr. Wenk as a defendant in this matter.
12. Despite the foregoing, Plaintiffs' Complaint is
dev-id of any facts which set forth a basis for a claim of
negligence against Dr. Wenk. In fact, Plaintiffs' Complaint
- 3
mentions Dr. Wenk only in the caption and the claim for relief
portions of the Complaint.
13. Moreover, in paragraph 3, Plaintiffs' Complaint
defines the Laboratory as "the Defendant." There is no other
defined defendant in the Complaint.
14. As a result, Plaintiffs' Complaint fails to state
a claim upon which relief may be granted against Dr. Wenk.
15. Pursuant to Pa. R. Civ. P. 1028(a)(4), the
Complaint against Dr. Wenk must be dismissed in its entirety for
legal insufficiency.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this court to dismiss the Complaint in its
entirety as to Defendant Wenk.
III . Ar T rFr OBJECTION rN T8F NATIIRF OF A mnmyO2
TO STRRIKE IKE/MOITO ION FOR M MORE SPECTPTC PLEnnr?*r pIIRSII NT Tn y
R. CIV. P. 1028(a) (3) (FArr URE TO SprrTrTrxTTy
AGENCY R ATTONRUTP) ---
16. The foregoing paragraphs are incorporated herein
by reference as though set forth fully at length.
17. In Count II of their Complaint, Plaintiffs contend
that the "staff and the employees,, of the Laboratory "were the
agents, ostensible agents and/or agents by estoppel of the
Defendant."
18. Count II further indicates that the staff and
employees were acting within the scope of their employment with
the Defendant.
- 4
19. Plaintiffs, Complaint does not specifically allege
which agents, servants, employees or workmen were allegedly
negligent.
20. It has been held that a complaint must not only
give the defendant notice of what the plaintiffs claim is and the
grounds upon which it rests, but also must formulate the
issues by summarizing those facts essential to support the claim.
Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974).
21. At the very least, plaintiff must allege facts
which:
(1) Identify the agent by name or
appropriate description;
(2) Set forth the agent's authority and
how the tortious acts of that agent fall
within the scope of that authority.
Alumni Association, et al. v. Sullivan, 369 Pa. Super. 596, 535
A.2d 1095 91987).
22. Without further facts to substantiate the identity
of the "staff and the employees, agents and/or agents by
estoppel" referred to in Count II of Plaintiffs' Complaint, the
Laboratory is without notice as to what Plaintiffs' claim is and
the grounds upon which it is based.
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court to strike Count II of
Plaintiffs' Complaint or, alternatively, uirect the Plaintiffs to
file a more specific pleading addressing the identity and acts of
5 -
the "staff, employees, agents, ostensible agents and/or agents by
estoppel" so as to adequately inform Dr. Wenk of the factual-
issues and theories of liability he must be prepared to meet in
his defense at trial.
IV. PRELIMMAI)v ___--
A7.TERNATIVE CLAIMS 7Iy* A SFVnAnms nmr -
23. The foregoing paragraphs are incorporated herein by
reference as though set forth fully at length.
24. In paragraph 41, 42 and the ad damnum clauses of
Plaintiffs' Complaint, Plaintiffs claim that the Plaintiff-Mother
sustained damages arising out of psychological stress and trauma.
25. Likewise, in paragraph 43, 44, 45 and the ad
damnum clauses of Plaintiffs' Complaint, Plaintiffs contend that
the Plaintiff-Son sustained damages arising out of psychological
stress and trauma.
26. Contrary to Pennsylvania Rule of Civil Procedure
1020(a), Plaintiffs have failed to set forth the cause of action
for psychological trauma "in a separate count containing a demand
for relief."
WHEREFORE, Defendant, Robert E. Wenk, M.D.,
respectfully requests this Court dismiss paragraphs 41 through 45
of Plaintiffs' Complaint as well as the references to
psychological damages in the ad damnum clause of Plaintiffs
6 -
Complaint for failure to comply with Pennsylvania Rule of Civil
Procedure 1020(a).
V. PMELIMINARv
27. The averments contained in the foregoing
paragraphs are incorporated herein by reference as though set
forth fully at length.
28. In the ad damnum clauses of Plaintiffs'
Complaint, Plaintiffs seek damages of "attorneys' fees and
costs."
29. Attorneys' fees are not permitted as an element of
damages absent an expressed statutory authorization, clear
agreement given among the parties, or some other established
exception.
30. Nowhere in Plaintiffs, Complaint is there any
fact alleged establishing that Plaintiffs are entitled to
attorneys' fees pursuant to any statutory authorization, clear
agreement among the parties, or some other established exception.
31. Accordingly, Plaintiffs' claim for attorneys'
fees must be stricken in its entirety.
WHEREFORE, Defendant, Robert E. Wenk, M.D., requests
the striking of any claim for attorneys' fees contained in the ad
- 7 -
damnum clauses of Plaintiffs, Complaint pursuant to Pa. R. Civ.
P. 1028(a)(2) and/or (4).
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
Dated:./7 /999 BY;
li? ? &/t4'
MICHAEL M. BADOWSKI
'-LAURALEE B. BAKER
Attorneys for Defendant,
ROBERT E. WENK, M.D.
- 8
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Harrisburg, Pennsylvania, first-class
postage prepaid, on the 19A day of
? ` - , 1999, and
addressed as follows:
Susan A. Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Counsel for Plaintiffs)
Randall G. Gale, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(Counsel for Defendant, The Baltimore
RH Typing Laboratory, Inc.)
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
By'G ? 7!
Se re•ary
Exhibit C
SUE ANN HINTON, individually and
JEREMY L. CHUBB, a minor,
by SUE ANN HINTON, his guardian,
Plaintiffs
VS.
THE BALTIMORE RH TYPING
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually,
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
Defendants
: IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION -LAW
NO. 99-5023 CML TERM
JURY TRiAi, DEMA NDF
COPY
NOTICE
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the court
your defenses or objections to the claims set forth against you. You are warned that if you fail to do
so the case may proceed without you and a judgment may be entered against you by the court without
further notice for any money claimed in the complaint or for any other claim or relief requested by
the plaintiff. You may lose money or property or other rights important to you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT
HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO. OR TELEPHONE THE OFFICE SET
FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP.
Cumberland County Bar Association
2 Liberty Avenue
Carlisle, PA 17013
(717) 249-3166
-1-
SUE ANN HINTON, individually and : IN THE COURT OF COMMON PLEAS
JEREMY L. CHUBB, a minor, : CUMBERLAND COUNTY, PENNSYLVANIA
by SUE ANN HINTON, his guardian,
Plaintiffs CIVIL ACTION -LAW
VS.
NO. 99-5023 CIVIL TERM
THE BALTIMORE RH TYPING : JURY TRIAL DEMANDED
LABORATORY, INC.,
ROBERT E. WENK, M.D., individually, :
MARGARET BROOKS, individually,
and TERRY HOUTZ, individually,
Defendants
FIRST AMENDED COMPLAINT
AND NOW, come the Plaintiffs, SUE ANN HINTON, individually, and JEREMY L.
CHUBB, a minor, by SUE ANN HINTON, his guardian, by and through their attorneys, Gates &
Associates, P.C., and respectfully represent as follows:
Plaintiff, SUE ANN HINTON (hereinafter referred to as "Plaintiff Mother"), is an
adult individual residing at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
2. Plaintiff, JEREMY L. CHUBB (hereinafter feferred to as "Plaintiff Sod'), is a minor
child residing with Plaintiff Mother at P.O. Box 3708, Harrisburg, Dauphin County,
Commonwealth of Pennsylvania, 17115.
3. Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., hereinafter
referred to as ("Defendant"), is a Maryland Corporation, registered and doing
business in the State of Maryland, at 400-402 West Franklin Street, Baltimore,
-2-
Maryland, 2120 1.
4. ROBERT E. WENK, M.D., was the medical director of THE BALTIMORE RH
TYPING LABORATORY, INC., at the time of the alleged incident at bar.
5. MARGARET BROOKS and TERRY HOUTZ were supervisors employed with THE
BALTIMORE RH TYPING LABORATORY, INC., at the time of the alleged
incident at bar.
6. The Defendant THE BALTIMORE RH TYPING LABORATORY, INC.'s resident
agent and business address for the resident agent is, PHILLIP J. GOLDSTEIN,
resident agent, 400 West Franklin Street, Baltimore, Maryland, 21201.
7. On or about April 26, 1988, Judge Harold E. Sheely ofthe Cumberland County Court
of Common Pleas, appointed and directed the Defendant, THE BALTIMORE RH
TYPING LABORATORY, INC., to perform Red Cell and HLA Blood Grouping
Tests on the Plaintiff Mother, Plaintiff Son and the alleged father, James R. Chubb.
8. On or about July 12, 1988, the Defendant THE BALTIMORE RH TYPING
LABORATORY, INC., through its' employees and agents, the Defendants ROBERT
E. WENK, M.D. , MARGARET BROOKS and TERRY HOUTZ, performed
various blood tests, of which Red Cell and HLA tests were two (2) of several tests
performed.
9. The Defendants, ROBERT E. WENK, M.D., MARGARET BROOKS and TERRY
HOUTZ performed the various blood tests upon samples of blood from the Plaintiff
Mother, Plaintiff Son and the alleged father of Plaintiff Son, James R. Chubb.
-3-
10. On orabout July 12, 1988, the Defendants ROBERT E. WENK, M.D, MARGARET
BROOKS and TERRY HOUTZ, together produced a written report of the results of
the various blood tests, identified in paragraph 8 above, which the Defendants
performed upon the blood samples of the parties, as stated in paragraph 9 above.
IL The written report dated July 12, 1998, stated the various specific tests results and
then summarized the test results by stating:
"On the basis of these tests, (Chubb, James R.) can be excluded
as the father of (Chubb, Jeremy L.) for the following reasons:
1. The child has a genetic marker (A33) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father.
2. The child has a genetic marker (B 14) in the HLA system
which is absent in the mother and cannot be demonstrated in the alleged
father."
12. The written report, identified in paragraph I 1 above, was submitted and signed by the
Defendant, ROBERT E. WENK, M.D., as the medical director, employee and agent
for the Defendant THE BALTIMORE RH TYPING LABORATORY, INC.
13. The written report, identified in paragraph I 1 above, was reviewed and verified as a
"true and accurate representation of phenotypes determined for the individuals named
her::n" by the Defendants MARGARET BROOKS, and TERRY HOUTZ, as
supervisors, employees and agents for the Defendant THE BALTIMORE RH
-4-
TYPING LABORATORY INC.
14. As a direct result of the written report provided to Judge Sheely by the Defendants,
Judge Sheely issued an order on July 19, 1988, dismissing the Plaintiff Mother's
complaint for support based upon the Defendant's statements and their test results
which excluded James R. Chubb as the possible father of Plaintiff Son.
15. Plaintiff Mother telephoned the Defendant THE BALTIMORE RH TYPING
LABORATORY, INC., on several occasions, stating with conviction, she knew
James R. Chubb was the father of her son and asking whether the Defendant might
have made an error in their tests and could redo or check their testing procedure.
16. In response to each telephone call the Plaintiff Mother was informed by an employee
of The Defendant THE BALTIMORE RH TYPING LABORATORY INC., "The
tests results are correct, they never make mistakes."
17. On or about 1996, Plaintiff Son was diagnosed with a serious neurological disorder,
Tourette Syndrome.
18. Plaintiff Mother never stopped believing the Defendant THE BALTIMORE RH
TYPING LABORATORY INC., through it's agents and employees, the Defendants,
ROBERT E. WENK, M.D., MARGARET BROOKS, and TERRY HOUTZ,
supervisors, had made an error in their tests, but, Plaintiff Mother had no objective
proof, nor the ability to obtain such proof until Plaintiff Son developed Tourette
Syndrome, this medical diagnosis empowered Plaintiff Mother with the additional
5-
support needed to resume the legal action to identify the biological father ofPlaintiff
Son.
19. The physicians and therapists of the Plaintiff Son needed the medical history of the
Plaintiff Son's father to aid them in the necessary and proper treatment ofthe Plaintiff
Son's diagnosis of Tourette Syndrome.
20. Plaintiff Son also wanted a formal adjudication and determination of the identity of
his father to obtain the emotional and psychological satisfaction to fill the void which
had been caused by not knowing the true identify of his father.
21. On March 2, 1998, Plaintiff Mother filed a second support action against James R.
Chubb, however, this support action was again denied based upon the Defendant's
report of the test results which were performed by the Defendants and reported to
Judge Sheely on July 12, 1988.
22. March 31, 1998, upon the filing of a Motion for Reconsideration of the March 2,
1998 decision, a Rule to Show Cause was issued upon James R. Chubb to submit to
additional tests to determine the paternity of Plaintiff Son.
23. December 8, 1998, Plaintiff Mother, Plaintiff Son and James R. Chubb provided blood
samples to be utilized in further tests to be performed by Micro Diagnostics, A
Lifecodes Company.
24. Micro Diagnostics performed DNA testing upon each of the individuals identified in
paragraph 23, the results ofthe tests indicated James R. Chubb could not be excluded
as the Plaintiff Son's biological father.
6-
25. Micro Diagnostics performed the HLA testing, which had been previously performed
upon the Plaintiff Mother and James R. Chubb, by the Defendants in 1988.
26. The HLA test which Micro Diagnostics performed upon the PlaintiffMother were the
same tests as the Defendants performed in 1988.
27. The HLA test results which Micro Diagnostics achieved were totally different than
those of the Defendants.
28. The HLA test results which Micro Diagnostics performed could not exclude James
R. Chubb as the biological father of the Plaintiff Son.
29. Micro Diagnostics test results indicate a 99.99% probability that James R. Chubb was
the father of Plaintiff Son.
30. Plaintiffs now file the within action to begin this lawsuit in Cumberland
County, Pennsylvania.
COUNTI
NEGLIGENCE BY DEFENDANT BALTIMORE RH
TYPING LABORATORY INC.
31. Paragraphs I through 30 of this Complaint are hereby incorporated by reference.
32. The Defendant BALTIMORE RH TYPING LABORATORY, INC. holds itself
out to the public as a laboratory with the knowledge, skill and experience
necessary to perform those special blood tests needed to accurately determine the
biological parents of children.
33. :'hen offering the service, stated in paragraph 32, to the public, the Defendant
THE BALTIMORE RH TYPING LABORATORY, INC., accepts great and
-7-
significant responsibility. When the Defendant agrees to perform tests to
determine the biological parents of a child, the test results affect every aspect of
the lives of the parent and child.
34. The outcome of the tests performed by the Defendant, THE BALTIMORE RH
TYPING LABORATORY, INC., affect the lives of the parent and child
psychologically, physically, financially and socially.
35. The Defendant THE BALTIMORE RH TYPING LABORATORY INC
accepted the responsibility to determine whether James R. Chubb was the
biological father of the Plaintiff Son.
36. The Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., caused
certain employees of the Defendant to perform various tests, including Red Cell
and HLA, upon the blood samples of the Plaintiff Mother, Plaintiff Son and James
R. Chubb.
37. The Defendant, THE BALTIMORE RH TYPING LABORATORY, INC.,
provided the results of these tests to the Cumberland County Court of Common
Pleas as being a "true and accurate representation of phenotypes determined for
the individuals named herein".
38. Despite Plaintiff Mother's repeated efforts to question the Defendant, THE
BALTIMORE RA TYPING LABORATORY, INC., concerning the accuracy of
the test results the Defendant provided to the Court of Common Pleas, the
Defendant never took any action to review or question their own test results.
-8-
39. Only after Plaintiff Son developed a serious medical condition which made it
critical for the medical history of Plaintiff Son's father to be discovered and
Plaintiff Mother's personal knowledge of the identity of the biological father,
coupled with her stubborn perseverance within the legal system, were additional
tests performed which revealed the false results from the tests which the
Defendant, THE BALTIMORE RH LABORATORY, INC., performed.
40. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to meet the duty which it had undertaken to the Plaintiff Mother and
Plaintiff Son to correctly and accurately determine whether James R. Chubb was
the biological father of the Plaintiff Son.
41. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to meet the duty it had to take all necessary actions and precautions in the
performance of these tests to insure the test results were reported accurately.
42. The Defendant, THE BALTIMORE RH LABORATORY, INC., was negligent in
failing to take any action in response to the Plaintiff Mother's repeated statements
that the test results which the Defendant reported were incorrect.
43. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered the social
label of an unwed mother with a child of an unknown father.
44. As a direct and proximate result of negligence of the uefandant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered great
-9-
embarrassment and humiliation from friends and relatives because of the
implications of the test results that she had been sexually involved with another
man in addition to James R. Chubb.
45. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered substantial
financial difficulties because of the loss of the biological father's additional
financial support in raising Plaintiff Son.
46. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother suffered substantial
psychological stress as she had to cope alone with the tasks of parenting a son and
in addition to that, a son who was diagnosed with a serious chronic disease.
47. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Mother had to endure the
frustration and anger as she fought the legal system to prove that James R. Chubb
was the biological father of Plaintiff Son.
48. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the social
embarrassment and humiliation of not having a father present in his life.
49. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the social
embarrassment and humiliation of not even knowing the identity of his father.
10-
50. As a direct and proximate result of the negligence of the Defendant, THE
BALTIMORE RH LABORATORY, INC., Plaintiff Son suffered the psychological
trauma and depravation which resulting from the absence of any known father
figure in the Plaintiff Son's life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enterjudgement in their favor against the Defendant, THE
BALTIMORE RH TYPING LABORATORY, for damages in an amount exceeding
$35,000.00, for damages past, present and future; medical expenses, pain and suffering,
psychological stress and trauma; and for such further and additional relief as this Honorable Court
deems just and proper under the circumstances.
COUNT II: ACTION AGAINST
BALTIMORE RH TYPING LABORATORY
FOR VICARIOUS LIABILITY FOR ACTS AND
OMISSIONS OF STAFF AND EMPLOYEES
51. The averments of the foregoing paragraphs I through 50 are incorporated herein
by reference.
52. At all times relevant hereto, the staff, employees and the named Defendants,
ROBERT E. WENK, M.D., MARGARET BROOKS, Supervisor and TERRY HOUTZ,
Supervisor, were the agents, ostensible agents and/or agents by estoppel of the Defendant, THE
BALTIMORE RH LABORATORY, INC.
53. At all times relevant hereto, the staff, employees and named Defendants were
acting within the scope of their employment and/or agency with the Defendant, THE
-11-
BALTIMORE RH LABORATORY, INC., with the permission and consent of the
Defendant, subject to the control of the Defendant, and in furtherance of the Defendant's interests.
54. The Defendant, THE BALTIMORE RH LABORATORY,
INC., is vicariously
liable for the damages caused by the negligent conduct of the staff and employees as more
particularly described herein.
WHEREFORE, Plaintiffs, SUE ANN HINTON and JEREMY L. CHUBB
respectfully requests this Honorable Court to enter judgement in her favor and against the
Defendant, BALTIMORE RH TYPING LABORATORY, for damages in an amount
exceeding $35,000.00, for damages past, present and future; medical expenses, pain and suffering,
psychological stress and trauma; and for such further and additional relief as this Honorable Court
deems just and proper under the circumstances.
COUNT III.
NEGLIGENCE BY DEFENDANT
ROBERT E. WENK M.D.
55. Paragraphs 1 through 54 of this Complaint are hereby incorporated by reference.
56. The Defendant ROBERT E. WENK, M.D.' held himself out to the public and to
his employer, the Defendant, THE BALTIMORE RH TYPING LABORATORY,
INC., as an individual with the knowledge, skill and experience necessary to
perform those sp9cial blood tests needed to accurately determine the biological
parents of children and to supervise and assume responsibility for those individuals
who are employees of the Defendant, THE BALTIMORE RH TYPING
-12-
LABORATORY, INC., who might perform those special blood tests..
57. When offering the service, stated in paragraph 56, to the public and to the
Defendant, THE BALTIMORE RH TYPING LABORATORY, INC., the
Defendant, ROBERT E. WENK, M.D., accepted great and significant
responsibility. When the Defendant, ROBERT E.
WEND M.D., assumed the
responsibility of performing these tests and of supervising other employees to
perform these tests to determine the biological parents of a child, the Defendant
knew or should have known that these test results would affect every aspect of the
lives of the parent and child.
58. The outcome of the tests which the Defendant, ROBERT E. WENK, M.D.,
performs and the supervision of the tests performed by other employees, affect the
parent and child's life psychologically, physically, financially and socially.
59. The Defendant, ROBERT E. WENK, M.D., accepted the responsibility to
determine ar,d provide a written report to the Cumberland County Court of
Common Pleas to answer the question of whether James R. Chubb was the
biological father of the Plaintiff Son.
60. The Defendant, ROBERT E. WENK, M.D., performed and/or supervised the
performance of various tests, including Red Cell and HLA, upon the blood samples
of the Plaintiff Mother, Plaintiff Son and James R. Chubb.
61. The Defendant, ROBERT E. WENK, M.D., the results of the tests to the
Cumberland County Court of Common Pleas as a "true and accurate
-13-
representation of phenotypes determined for the individuals named herein".
62. Despite Plaintiff Mother's repeated efforts to question the test results submitted by
the Defendant, ROBERT E. WENK., M.D., to the Cumberland County Court of
Common Pleas, the Defendant, ROBERT E. WENK, M.D., never took any action
to review or question the test results he had signed and submitted to the court.
63. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to take any
action to review or question the test results he signed and submitted to tut
Cumberland County Court of Common Pleas.
64. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to meet the
duty which he had undertaken to the Plaintiff Mother and Plaintiff Son to correctly
and accurately detennine whether James R. Chubb was the biological father of the
Plaintiff Son.
65. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to meet the
duty which he had to take all necessary actions and precautions in the performance
of these tests to insure the test results were accurately reported.
66. The Defendant, ROBERT E. WENK, M.D., was negligent in failing to take any
action in response to the Plaintiff Mother's repeated statements that the test results
which the Defendant reported were incorrect and her requests that the tests be
reevaluated.
67. As a direct snri proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered the social label of an unwed mother with
14-
a child of an unknown father.
68. As a direct and proximate result of negligence of the Defendant, ROBERT E.
WEW M.D., Plaintiff Mother suffered great embarrassment and humiliation from
friends and relatives because of the implications of the test results that she had
been sexually involved with another man, in addition to James R. Chubb.
69. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered substantial financial difficulties, because of
the loss of the biological father's additional financial support in raising Plaintiff
Son.
70. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother suffered substantial psychological stress as she had
to cope alone with the tasks of parenting a son and in addition to that, a son who
was diagnosed with a serious chronic disease.
71. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Mother had to endure the frustration and anger as she
fought the legal system to prove that James R. Chubb was in fact the biological
father of Plaintiff Son.
72. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Son suffered the social embarrassment and humiliation of
not having a father present in his life.
73. As a direct and proximate result of the negligence of the Defendam, ROBERT E.
-15-
WENK, M.D., Plaintiff Son suffered the social embarrassment and humiliation of
not even knowing the identity of his father.
74. As a direct and proximate result of the negligence of the Defendant, ROBERT E.
WENK, M.D., Plaintiff Son suffered the psychological trauma and depravation
which occurred from the absence of any known father figure in the Plaintiff Son's
life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfully
requests this Honorable Court to enter judgement in their favor against the Defendant, ROBERT
E. WENK, M.D., individually, for damages in an amount exceeding $35,000.00, for damages
past, present and future; medical expenses, pain and suffering, psychological stress and trauma;
and for such further and additional relief as this Honorable Court deems just and proper under the
circumstances.
COUNT IV
NEGLIGENCE BY DEFENDANTS
MARGARET BROOKS and TERRY HOUTZ
75. Paragraphs I through 74 of this Complaint are hereby incorporated by reference.
76. Defendants MARGARET BROOKS and TERRY HOUTZ held themselves out to
the public and to their employer, the Defendant, THE BALTIMORE RH TYPING
LABORATORY, INC., as individuals with the knowledge, skill and experience
necessary to perform and to evaluate those special blood tests needed to accurately
determine the biological parents of children.
-16-
77• When offering the service, stated in paragraph 76, to the public and to the
Defendant Employer, THE BALTIMORE RH TYPING LABORATORY, INC.,
the Defendants, MARGARET BROOKS and TERRY HOUTZ, accepted great
and significant responsibility. When the Defendants took on the responsibility of
performing the tests to determine the biological parents of a child, the test results
affect every aspect of the lives of the parent and child lives.
78. The outcome of the tests which the Defendants, MARGARET BROOKS and
TERRY HOUTZ, performed affect the lives of the parent and child
psychologically, physically, financially and socially.
79. The Defendants, MARGARET BROOKS and TERRY HOUTZ, accepted the
responsibility to perform certain tests accurately to determine whether James R.
Chubb was the biological father of the Plaintiff Son.
80. The Defendants, MARGARET BROOKS and TERRY HOUTZ, performed
various tests, including Red Cell and HLA, upon the blood samples of the Plaintiff
Mother, Plaintiff Son and James R. Chubb.
81. The Defendants, MARGARET BROOKS and TERRY HOUTZ, signed the
document sent to the Cumberland County Court of Common Pleas stating they
had reviewed and were verifying the results of the various blood tests which
indicated James 1 . Chubb was not the father of the Plaintiff son.
82. Despite Plaintiff Mother's repeated contacts with the Defendant, THE
BALTIMORE RH LABORATORY, INC., the Defendants MARGARET
-17.
BROOKS and TERRY HOUTZ, never took any action to review or reevaluate
their test results for accuracy.
83• The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to meet the duty which they had undertaken to the Plaintiff Mother and
Plaintiff Son to correctly and accurately perform the necessary and appropriate
blood tests to determine whether James R. Chubb was the biological father of the
Plaintiff Son.
84. The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to meet their duty to take all necessary actions and precautions in the
performance of these blood tests to insure the test results were reported
accurately.
85. The Defendants, MARGARET BROOKS and TERRY HOUTZ, were negligent in
failing to take any action in response to the Plaintiff Mother's repeated statements
that the test results were incorrect.
86. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered the social
label of an unwed mother with a child of an unknown father.
87. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered great
embarrassment and humiliation f iron. friends and relatives as a result of the test
results indicating she had been sexually involved with another man, in addition to,
18-
James R. Chubb.
gg. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered
substantial financial difficulties, as a result of the loss of the biological father's
additional financial support in raising Plaintiff Son.
89. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother suffered
substantial psychological stress as she had to cope alone with the tasks of
parenting a son and in addition to that a son who was diagnosed with a serious
chronic disease.
90. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Mother had to endure the
frustration and anger as she fought the legal system to prove that James R. Chubb
was the biological father of Plaintiff Son.
91. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the social
embarrassment and humiliation of not having a father present in his life.
92. As a direct and proximate result of the negligence of the Defendants,
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the social
embarrassment and humiliation of not !mowing the identity of his father.
93. As a direct and proximate result of the negligence of the Defendants,
-19-
MARGARET BROOKS and TERRY HOUTZ, Plaintiff Son suffered the
psychological trauma and depravation which occurred from the absence of any
known father figure in the Plaintiff Son's life.
WHEREFORE, Plaintiffs SUE ANN HINTON and JEREMY L. CHUBB respectfiilly
requests this Honorable Court to enter judgement in their favor against the Defendants,
MARGARET BROOKS, individually and TERRY HOUTZ, individually, for damages in an
amount exceeding $35,000.00, for damages past, present and future; medical expenses, pain and
suffering, psychological stress and trauma; and for such further and additional relief as this
Honorable Court deems just and proper under the circumstances.
Respectfully submitted.
GATES & ASSOCIATES, P.C.
usan Kay Candi 1 squire
Counsel for Plain ' s
PA I.D. # 64998
1013 Mumma Road, Suite 100
Lemoyne, PA 17043
(717) 731-9600
Dated: October 41 1999
20-
I HEREBY CERTIFY that I served a true and correct copy
of the foregoing on all counsel of record by placing the same in
the United States mail at Camp Hill, Pennsylvania, first-class
postage prepaid, on the _44ikday of 1999, and
addressed as follows:
Susan A. Candiello, Esquire
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Counsel for Plaintiffs)
Randall G. Gale, Esquire
THOMAS, THOMAS & HAFER
305 North Front Street
P.O. Box 999
Harrisburg, PA 17108-0999
(Counsel for Defendant, The Baltimore
RH Typing Laboratory, Inc.)
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
A Professional Corporation
By: Q rt4 `f L l d1_
Sec tary
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SUE ANN HINTON, IN THE COURT OF COMMON PLEAS OF
INDIVIDUALLY, and CUMBERLAND COUNTY, PENNSYLVANIA
JEREMY L. CHUBB,
a minor, by SUE ANN
HINTON, His Guardian,
Plaintiffs
V. CIVIL ACTION - LAW
THE BALTIMORE RH .
TYPING LABORATORY, :
INC.; ROBERT E. WENK,:
M.D., INDIVIDUALLY;
MARGARET BROOKS,
INDIVIDUALLY; and
TERRY HOUTZ,
INDIVIDUALLY,
Defendants NO. 99-5023 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
BEFORE HOFFER, P.J., HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this ( 2j?day of January, 2000, upon consideration of Defendants'
preliminary objections in the nature of demurrers to Plaintiffs' amended complaint, and
for the reasons stated in the accompanying opinion, Defendants' preliminary objections
are sustained and Plaintiffs' amended complaint is dismissed.
BY THE COURT,
u7?I;Ha rll?r? i::)
?. Wesley Oler,V
In
Sue Ann Hinton
P.O. Box 3708
Harrisburg, PA 17115
Plaintiff, Pro Se
Susan A. Candiello, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Courtesy Copy)
Randall G. Gale, Esq.
THOMAS, THOMAS & HAFER, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
and
Andrew H. Briggs, Esq.
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
Attorneys for Defendants The
Baltimore RH Typing Laboratory, Inc.;
Margaret Brooks and Terry Houtz
Michael M. Badowski, Esq.
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
Attorney for Defendant
Robert E. Wenk, M.D.
SUE ANN HINTON,
INDIVIDUALLY, and
JEREMY L. CHUBB,
a minor, by SUE ANN
HINTON, His Guardian,
Plaintiffs
V.
THE BALTIMORE RH .
TYPING LABORATORY, :
INC.; ROBERT E. WENK,:
M.D., INDIVIDUALLY;
MARGARET BROOKS,
INDIVIDUALLY; and
TERRY HOUTZ,
INDIVIDUALLY,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 99-5023 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFF'S AMENDED COMPLAINT
BEFORE HOFFER, P.J., HESS and OLER, JJ.
OPINION and ORDER OF COURT
OLER, J., January 13, 2000.
This case presents the issue of whether the witness immunity doctrine insulates a
court-appointed expert witness from civil liability premised upon medical malpractice.
The question is raised by way of preliminary objections in the nature of demurrers to
Plaintiffs' amended complaint; the complaint seeks damages that allegedly resulted from
Defendants' negligence in connection with a blood test to determine paternity.
For the reasons stated in this opinion, the preliminary objections to the amended
complaint will be sustained. The Pennsylvania Supreme Court, however, has recently
noted that the issue has not been resolved at its level.
STATEMENT OF FACTS
In considering a preliminary objection in the nature of a demurrer to a complaint,
the court will accept "as true all of the complaint's material facts and all reasonable
inferences made therefrom."' Plaintiffs' amended complaint in the present case may be
summarized as follows:
In a 1988 child support action filed in this court by Plaintiff Sue Ann Hinton
against an individual named James R. Chubb, who contested paternity, the Honorable
Harold E. Sheely appointed Defendant Baltimore RH Typing Laboratory to perform red
cell and HLA blood grouping tests on Plaintiff Sue Ann Hinton (mother), Minor Plaintiff
Jeremy L Chubb (child), and James R. Chubb (alleged father) for purposes of
determining the probability of paternity on the part of Mr. Chubb.2 Defendant Baltimore
RE Typing Laboratory, through its employees, Defendants Wenk, Brooks and Houtz,
performed the tests and issued a report to the court excluding Mr. Chubb as the father.3
Based upon the report, the court dismissed the complaint for child support .4
As a consequence of a second child support action commenced in 1998, new blood
tests were performed by a second laboratory on the mother, child and alleged father.'
These tests revealed a 99.99% probability that Mr. Chubb was the father of the child.6
1 Baribault v. Peoples Bank of Oxford, 714 A.2d 1040, 1042 (1998)
2 Plaintiffs' amended complaint, paragraphs 1-3, 7.
3 Plaintiffs' amended complaint, paragraphs 9-11
4 Plaintiffs' amended complaint, paragraph 14.
s Plaintiffs' amended complaint, paragraph 21-23.
6 Plaintiffs' amended complaint, paragraph 29
1)
Negligence on Defendants' part produced the initial erroneous result, and caused
damages of various sorts to Plaintiffs."
The preliminary objections filed by Defendants to Plaintiffs' amended complaint
seek dismissal of Plaintiffs' pleading on the basis of the witness immunity doctrine.
They rely upon the holding of the Pennsylvania Superior Court in Clodgo v. Bowman,
411 Pa. Super. 267,601 A.2d 342, appeal granted, 532 Pa. 640, 614 A.2d 1138 (1992),
appeal dismissed as improvidently granted, 533 Pa. 352,625 A.2d 612 (1993).
Oral argument was held on the matter on December 8, 1999.9
DISCUSSION
A preliminary objection in the nature of a demurrer should be sustained only in
cases that clearly and without doubt fail to state a claim upon which relief can be granted.
County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985); see
Clark v. General Mills, Inc. 48 Cumberland L.J. 124 (1999). In Pennsylvania, the
general rule is clear that the law as established by an intermediate appellate court is
binding precedent upon lower courts unless it has been reversed or overruled by the
Supreme Court. See Sorber v. American Motorists Insurance Co., 451 Pa. Super. 507,
680 A.2d 881 (1996).
In Clodgo v. Bowman, 10 the Pennsylvania Superior Court reviewed an order of a
lower court granting preliminary objections in the nature of a demurrer to a complaint
filed by a mother and her child against a hospital, a laboratory, a hematology center, and
a physician, based upon an erroneous report generated by defendants in response to a
7 Plaintiffs' amended complaint, paragraphs 40-42,63-66, 83-85.
s Plaintiffs' amended complaint, paragraphs 43-50, 67-74, 87-93.
9 Although the adult plaintiff appeared at the argument, no brief was submitted on behalf
of Plaintiffs and Plaintiffs' counsel of record did not appear.
10 411 Pa. Super. 267, 601 A.2d 342, appeal granted 532 Pa. 640, 614 A.2d 1138 (1992),
appeal dismissed as improvidently granted, 533 Pa. 352, 625 A.2d 612 (1993).
3
court appointment for administration of a blood test to determine paternity. The report
incorrectly excluded a certain defendant in a child support action filed by the mother as
the possible father of the child, and resulted in a dismissal of the support action and
alleged damage to the plaintiffs.
In affirming the lower court's dismissal of the complaint in Clodgo, the Superior
Court premised its decision upon the doctrine of witness immunity. The doctrine, which
provides for civil immunity with respect to "communications which are issued in the
regular course of judicial proceedings and which are pertinent and material to the redress
or relief sought," was designed "to prevent witnesses from refusing to testify based on a
fear of potential civil liability," according to the court."
11 Clodgo v. Bowman, 411 Pa. Super. 267, 271, 274, 601 A.2d 342, 344-45, appeal
granted, 532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted,
533 Pa. 352, 625 A.2d 612 (1993).
An eloquent expression of the rationale for the doctrine of witness immunity is
found in the opinion of the United States Supreme Court in Briscoe v. LaHue, 460 U.S.
325, 330-34, 103 S. Ct. 1108, 1112-14, 75 L. Ed. 2d 96, 105-07 (1983) (citations
omitted).
The immunity of parties and witnesses from subsequent damages
liability for their testimony in judicial proceedings was well
established in English common law. Some American decisions
required a showing that the witness' allegedly [tortious] statements
were relevant to the judicial proceeding, but once this threshold
showing had been made, the witness had an absolute privilege. The
plaintiff could not recover even if the witness knew the statements
were false and made them with malice.
In the words of one 19'h century court, in damages suits against
witnesses, "the claims of the individual must yield to the dictates of
public policy, which requires that the paths which lead to the
ascertainment of truth should be left as free and unobstructed as
possible." A witness' apprehension of subsequent damages liability
might induce two forms of self-censorship. First, witnesses might be
reluctant to come forward to testify. And once a witness is on the
stand, his testimony might be distorted by the fear of subsequent
liability. Even within the constraints of the witness' oath there may
4
Rejecting the argument that the doctrine should not be applied in the context of a
medical malpractice action (as opposed, for instance, to its more common context of a
defamation action), the court in Clodgo observed that "the rationale for the immunity
applies just as strongly to medical malpractice actions as to any other type of civil
action .,,12 Thus, the Clodgo court stated,
[o]ur precedent is clear. The form of the cause of action is not
relevant to application of the privilege. Regardless of the tort
contained in the complaint, if the communication was made in
connection with judicial proceedings and was material and relevant to
it, the privilege applies. Thus, while we agree with appellant's
premise that this action is not premised upon defamation but is a
medical malpractice action, this does not alter the conclusion that the
privilege applies.
We recognize that this case presents a compelling situation. The
doctor has acknowledged his incorrect recording of the relevant data,
and his error was at least partially the reason that [the child] lost his
child support action against [the alleged father]. However, the maxim
is that hard cases make bad law, and as that maxim applies herein, we
cannot allow an exception in this case to application of the immunity.
Clodgo v. Bowman, 411 Pa. Super. 267, 273, 601 A.2d 342, 345, appeal granted, 532 Pa.
640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa. 352, 625
A.2d 612 (1993).
be various ways to give an account or to state an opinion. These
alternatives may be more or less detailed and may differ in emphasis
and certainty. A witness who knows that he might be forced to
defend subsequent lawsuit, and perhaps to pay damages, might be
inclined to shade his testimony in favor of the potential plaintiff, to
magnify uncertainties, and thus to deprive the finder of fact of candid,
objective, and undistorted evidence. But the truthfinding process is
better served if the witness' testimony is submitted to "the crucible of
the judicial process so that the factfinder may consider it, after cross-
examination, together with the other evidence in the case to determine
where the truth lies."
In the case at bar, the facts do not appear to be fairly distinguishable from those in
Clodgo. Although the doctrine of witness immunity has recently been held by the
Pennsylvania Supreme Court to be inapplicable to a professional negligence action
brought against an expert witness where (a) "the allegations of negligence are not
premised on the substance of the expert's opinion" and (b) the witness had been retained
by the plaintiff, the court expressly reserved the issue of the application of this limitation
upon the doctrine to cases such as Clodgo, where the expert witness had been court-
appointed. LLMD of Michigan, Inc. v. Jackson-Cross Co., _ Pa. _ n.4, 740
A.2d 186, 188 n.4 (1999) (witness immunity doctrine held not to bar professional
malpractice action against company hired to provide services in federal lawsuit as
plaintiff's expert on issue of lost profits, where allegations of negligence were premised
upon carelessness in performance of mathematical calculations). 13
The case of Clodgo v. Bowman, supra, being binding precedent and on point with
respect to the present case, the following order will be entered:
ORDER OF COURT
AND NOW, this 13a' day of January, 2000, upon consideration of Defendants'
preliminary objections in the nature of demurrers to Plaintiffs' amended complaint, and
for the reasons stated in the accompanying opinion, Defendants' preliminary objections
12 Clodgo v. Bowman, 411 Pa. Super. 267, 274, 601 A.2d 342, 345-46, appeal granted,
532 Pa. 640, 614 A.2d 1138 (1992), appeal dismissed as improvidently granted, 533 Pa.
352, 625 A.2d 612 (1993).
13 "The issue of whether the witness immunity doctrine bars professional malpractice
actions against a court-appointed expert witness was addressed by the Superior Court in
Clodgo v. Bowman, 411 Pa.Super. 267, 601 A.2d 342 (1992), appeal granted, 532 Pa.
640, 614 A.2d 1138 (1992), appeal dismissed as having been improvidently granted, 533
Pa. 352, 625 A.2d 612 (1993), (holding that witness immunity doctrine insulates a court-
appointed expert witness from liability premised upon medical malpractice). The
applicability of the doctrine to a court-appointed expert witness is not squarely before this
Court, and we will leave that question for another day." LLMD of Michigan, Inc. v.
Jackson-Cross Co., _ Pa. _ _ n.4, 740 A.2d 186, 188 n.4 (1999).
6
are sustained and Plaintiffs' amended complaint is dismissed.
BY THE COURT,
/s/ J. Wesley Oler. Jr.
J. Wesley Oler, Jr., J.
Sue Ann Hinton
P.O. Box 3708
Harrisburg, PA 17115
Plaintiff, Pro Se
Susan A. Candiello, Esq.
GATES & ASSOCIATES, P.C.
1013 Mumma Drive, Suite 100
Lemoyne, PA 17043
(Courtesy Copy)
Randall G. Gale, Esq.
THOMAS, THOMAS & HAFER, LLP
P.O. Box 999
Harrisburg, PA 17108-0999
and
Andrew H. Briggs, Esq.
POST & SCHELL, P.C.
240 Grandview Avenue
Camp Hill, PA 17011
Attorneys for Defendants The
Baltimore RH Typing Laboratory, Inc.;
Margaret Brooks and Terry Houtz
Michael M. Badowski, Esq.
BADOWSKI, BANKO, KROLL,
KRONTHAL AND BAKER
101 Pine Street
P.O. Box 932
Harrisburg, PA 17108-0932
Attorney for Defendant
Robert E. Wenk, M.D.