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HomeMy WebLinkAbout01-6261IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CARON FOUNDATION : : V. : THE HONORABLE THOMAS A. PLACEY, : DISTRICT JUSTICE : Docket No. O/-g~6 ! O_x~g NOTICE TO DEFEND 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 your 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 or (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CARON FOUNDATION : : v. : Docket No. THE HONORABLE THOMAS A. PLACEY, : DISTRICT JUSTICE : ORDER AND NOW, this day of November, 2001, upon consideration of the Plaintiffs Petition for a Special and Preliminary Injunction, it is hereby ORDERED that the Petition is GRANTED. The Defendant is hereby specially enjoined from enforcing the subpoenas, issued sua sponte to the Caron Foundation, in the matter In Re: Commonwealth of Pennsylvania v. Richard Craig Shover, Docket No. CR-0000287-01, until this Court has issued its final order on the Plaintiffs Complaint for Declaratory Relief. A hearing on the continuation of this special injunction will be held at the Cumberland County Court of Common Pleas, in courtroom , on November ,2001, at __ __m. ,J. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CARON FOUNDATION : : v. : DocketNo. OI- : THE HONORABLE THOMAS A. PLACEY, : DISTRICT JUSTICE : COMPLAINT FOR DECLARATORY RELIEF AND PETITION FOR SPECIAL AND PRELIMINARY INJUNCTION AND NOW, comes Caron Foundation by its counsel, Wolf, Block, Schorr and Solis- Cohen LLP, who respectfully files this Complaint for Declaratory Relief, pursuant to 42 Pa. C.S. §§ 7531 et seq., and Petition for Special and Preliminary Injunction, pursuant to Pa. R.C.P. No. 1531. Caron Foundation requests that this Honorable Court review the issuance of subpoenas directed to Caron Foundation in the matter In Re: Commonwealth of Pennsylvania v. Richard Craig Shover, Docket No. CR-0000287-01, and issue a declaration that, absent patient consent or appropriate order by a court of competent jurisdiction, the Caron Foundation may neither release patient drug and alcohol records nor confirm or deny the fact of treatment for a current or former drug and alcohol patient. Further, because Caron Foundation is prohibited by state and federal law, under threat of penalty, from confirming or releasing the information sought by the subpoenas, Caron Foundation seeks a special and preliminary injunction to enjoin the Defendant from enforcing the subpoenas or sanctioning Caron Foundation for non-compliance or contempt. In support of this Complaint, Petitioner represents the following: 1. Petitioner is Caron Foundation, an inpatient, non-hospital drag free facility licensed by the Pennsylvania Depaxhnent of Health, Office of Drug and Alcohol Programs. Caron Foundation has a principal place of business located at Galen Hall Road, Box A, Wemersville, PA 19565. DSH:29667.1/CAR126-095198 2. The Defendant is the Honorable District Justice Thomas A. Placey, whose District Justice Office is located at 104 S. Sporting Hill Road, Mechanicsburg, PA 17050. 3. On or about October 11, 2001, in the matter In Re: Commonwealth of Pennsylvania v. Richard Craig Shover; Docket No. CR-0000287-01, District Justice Thomas A. Placey, sua sponte issued a subpoena to Greg Kessler/Caron Foundation directing Mr. Kessler's attendance at a bail hearing and a preliminary hearing on November 2, 2001. A copy of said subpoena is attached hereto and incorporated by reference herein as Exhibit A. 4. On or about October 12, 2001, in the above-captioned matter, District Justice Thomas A. Placey sua sponte issued a subpoena duces tecum to Caron Foundation Records Custodian directing the production of "records of Richard Craig Shover, including but not limited to records of release, recommendation of discharge for inspection by the court" at a bail hearing and preliminary hearing scheduled for October 16, 2001, which proceedings were continued to November 2, 2001. A copy of said subpoena and continuance are attached hereto and incorporated by reference herein as Exhibit B. 5. Each of the subpoenas at issue in this matter recite the following "WARNING: Failure to comply with this subpoena may result in a finding of CRIMINAL CONTEMPT pursuant to 42 Pa.C.S. § 4137. This offense is punishable by a fine and/or imprisonment." 6. By letter to District Justice Placey dated October 22, 2001, Caron Foundation requested that the subpoenas described in paragraphs 2 and 3 be rescinded because applicable provisions of federal and state law and regulation governing confidentiality of patient records prohibit drug and alcohol programs such as Caron Foundation and its personnel from releasing records and confidential patient information, absent proper consent from the patient or an order issued by a Court of Common Pleas after hearing in accordance with Pennsylvania law. A copy DSH:29667.1/CARI26-095198 - 2 - of said letter is attached hereto as Exhibit C and incorporated by reference as if fully set forth herein. 7. The subpoenas identified herein relate to a Richard Craig Shover who has not consented to the release of recorcls or information by Caron Foundation. 8. By Order of District Justice Placey dated October 26, 2001, Caron Foundation's letter of October 22, 2001 was treated as a Motion to Quash the subpoenas issued to Caron Foundation and Greg Kessler and denied. A copy of said Order is attached as Exhibit D. 9. Caron Foundation is subject to the requirements of the Pennsylvania Drug and Alcohol Abuse Control Act which provides, in relevant part that: (b) All patient records (including all records relating to any commitment proceeding) prepared or obtained pursuant to this act, and all information contained therein, shall remain confidential, and may be disclosed only with the patient's consent and only (i) to medical personnel exclusively for purposes of diagnosis and treatment of the patient or (ii) to government or other officials exclusively for the purpose of obtaining benefits due the patient as a result of his drug or alcohol abuse or drug or alcohol dependence except that in emergency medical situations where the patient's life is in immediate jeopardy, patient records may be released without the patient's consent to proper medical authorities solely for the purpose of providing medical treatment to the patient. Disclosure may be made for purposes unrelated to such treatment or benefits only upon an order of a court of common pleas after application showing good cause therefor. In determining whether there is good cause for disclosure, the court shall weigh the need for the information sought to be disclosed against the possible hunn of disclosure to the person to whom such information pertains, the physician-patient relationship, and to the treatment services, and may condition disclosure of the information upon any appropriate safeguards. No such records or information may be used to initiate or substantiate criminal charges against a patient under any .circumstances. 71 P.S. § 1690.108(b). (Emphasis added). 10. Caron Foundation is subject to federal law and regulations governing confidentiality of drug abuse patient records which also prohibit the disclosure of records in DSH:29667.1/CAR126-095198 - 3 - response to a subpoena unless a court of competent jurisdiction enters an authorizing order. See 42 U.S.C. §§ 290dd-3 and 42 C.F.R. Ch. 1 §§ 2.1 et seq. 11. Any person who violates the confidentiality provisions under applicable federal law is subject to criminal penalties for violations. See 42 C.F.R. Ch. 1, Part 2 at § 2.4. 12. Absent a declaration of Caron Foundation's duties at law to protect the confidentiality of patient records, Caron Foundation is at risk of sanction in the instant matter for refusal to comply with the subject subpoenas. Indeed, absent relief by this Court, Caron Foundation is faced with the Hobson's choice of violating applicable state and federal confidentiality laws or risking criminal contempt. 13. Based on the Pennsylvania Drug and Alcohol Abuse Control Act and the cited federal law and regulations Caron Foundation's right to relief is clear. 14. Caron Foundation is facing the irreparable harm of being held in criminal contempt and sanctioned by the Defendant for non-compliance with subpoenas, issued sua sponte, with which it is prohibited by law from complying. The irreparable harm is imminent as the date contained in the subpoenas for compliance therewith is November 2, 2001. 15. The violation of the Pennsylvania Drug and Alcohol Abuse Control Act, as well as federal law, also constitutes per se irreparable harm. Commonwealth v. Coward, 414 A.2d 91, 98 (Pa. 1980); Pennsylvania Public Utility Commission v. Israel, 52 A.2d 317, 321 (Pa. 1947). 16. Greater harm will befall the Plaintiff if injunctive relief is not granted as a lawful, statutory means for obtaining the desired information exists. Further, this Court should preserve the status quo by enjoining the Defendant's ability to enforce the subpoenas until the Court can declare Caron Foundation's legal rights and responsibilities. DSH:29667.1/CAR126-095198 - 4 - 17. Special and preliminary injunctive relief is in the public interest. The Legislature has already declared the public interest by enacting the Pennsylvania Drug and Alcohol Abuse Control Act. 18. As the date upon which the Plaintiff may be subject to irreparable harm is November 2, 2001, this Court should grant the Caron Foundation's request for a special, exparte injunction under Pa. R.C.P. No. 1531. WHEREFORE, the Caron Foundation respectfully requests that this Court issue an order declaring that absent consent by Richard Stover or an order of the Court of Common Pleas authorizing disclosure of patient records, if any, pertaining to Richard Shover, Caron Foundation may not properly comply with the subpoenas issued in this matter. Further, the Caron Foundation requests that this Court grant a special and preliminary injunction, enjoining the Defendant from sanctioning or holding the Plaintiffin criminal contempt for its non-compliance with the subject subpoenas. Respectfully submitted // ~ules S. Henshell, Esquire [_/Mark S. Stewart, Esquire WOLF, BLOCK, SCHORR and SOLIS-COHEN LLP 212 Locust Street, Suite 300 Harrisburg, PA 17101 (717) 237-7160 Counsel for the Caron Foundation Date: November 1, 2001 DSH:29667.1/CARI26-095198 - 5 - VERIFICATION I, Jules S. Henshell, state that my rum, Wolf, Block, Schorr and Solis-Cohen LLP is counsel to Caron Foundation with respect to the foregoing Complaint and that I am authorized to and do make this Verification for Caron Foundation; and that the facts set forth above are tree and correct to the best of my knowledge, information, and belief and I expect the said Caron Foundation to be able to prove the same at any hearing hereof. This statement is made subject to the penalties of 18 Pa. C.S. Section 4904 relating to unswom falsification to authorities. les S. Henshell, Esquire Dated: November 2, 2001 DSH:29667,1/CAR126-095198 COMMONWEAL'IH OF PENNSYLVANIA SUBPOENA CRIMINAL/SUMMARY CASE COMMONWSALTH OF P£NNSYLVANIA VS. 1.5 N. 24'tX STnwwT ~...,p~p ~Zr-T., PA 17011 L,. Data Filed. 9/04/01 [OTN: Il 31'[309- 5 1. YOU are ordered by the coutl to come Io: Pta~s:DlB~~"l~; 3 L 04 11/03/01 ~Oa~e: ~lc~a, P~ 19050 T,me; 10~30 ~ · · in aha above casa. ar~ Co remain until excused, il you ere ~lla~le~ and require isele%lnCe, please contac[ the M~lllerlll District ofllcc l! the eddrese alcove. ..J 2 And bring with you the fo/lowing: (complele if applicable) COMPLETE THE FOLLOWING IF APPLICABLE: This subpoena ~8 issued UpQn Application O1: Attorney'! addcass end phone number: ~,~a.,.~. ~:-il-,., t,~ ~.mnl'., wl,h ,l~s~:to-~;~'~a¥ ~e~ng of CRIMINAL CONTEMPT pursuant to My commission expires llrsl MonOay et January. SEAL AC~ AS06- ~4 SUBPOENA CRIMINAL/SUMMARY CASE COMMONWEALTH OF ff~;NNSYLVANIA VS. 15 N. 2~TB OTIt~ET 1, You are ordered by the CC~ ~o ~ tc: 'r~;~ ~' ....... ~=~-~'- ~'~'~- "~="~' .... / 1~15 ~ , Il ~.~ ......... ;~ ,,~=~- ............ 2. And bring wi[h you the I~lue. lng: {compiu[u Tn;s su~=ra s csu.~ upon ~p:i(:ation a,: '. ....................................... A~terney'S addCe3s ~d ~hone ~m~er: ....... ' ...................... ( ) ......... + .... ~ .... ~/~ /..~ ..... .~-.7 42 Pa.C.$. ! 4 ~ 37. ~,~ ofi~n~e Is punilh~ie by a tlne at~or ~np~onrn~nL ' AOFC A~.'~4 COMMONWEALTH OF PENNSYLVANIA COUNTY O~ c13~/~I~'[~ 09-3-0& THOHAS A. PhACEY '~':~ 104 S. SPORTING HIr.L RD. MECHANICS BD'RG, PA WITNESS FOK COMMONI~_JtLTH : CARON FOUNDATION-R~.COI~DS CUSTODIAN GALEN HA~L RD. BOX A NOTICE OF CONTINUANCE COMMONWEALTH OF PENNSYLVANIA VS. ~HO~, R~CHARD CRAIG 15 N. 24TH S?REST C$~IP HILL, PA 17011 Please r~ote that the hearing in tho above ~aptioned case, which was schedule~ [o occur on_ 10/16/01 has been continued you have any questions, please cortLaCl :hie oltice immedialely Continuance requosteo by: PRE[D, ESQ., DA'v'~ you ara disabled and require assistance, please contacl ~he Magisterial O~strl¢~ o,15ce al. the address abe e. lO/11/010ale ~ ,~.~ My commission expires rff~st Monday 01 January, 200~ . / _, Dlslrict J~.LStiCe SEAL October 2?., 2001 E,.~-ella~ce [~ A~kiicri~ Tn:~=',t Honora~31e Thomas A. Placey 104 S. Sporting Hill Road Mechanicsburg, PA 17050 Re: Common~vealth vs Shover Docket No. CR-0000287-01 Dear Justice Placey: I am in ~'ecelpt of your subpoenas directed to the Record~'CusLOdian and Grog Kessler aL the Ceron Foundation. The Caron Founclation is licensed by the Pennsylvania Department of Health - office of Drug and Alcohol Programs as an mpatienl non- hospital drug free facility. As such, it is subject to the {3revisions of federal confiderqiality laws and regulations (42 USC §290dd-2, 42 C.F,R, part 2) and the provisions of the Pennsylvania Orug ar'd Alcohol Abuse control Act (71 PS §1690 et seq,). These statutes and regulatio'~s prohibit this program and its personnel from complying wtth your request or even acknowledging whether or not Mr. Shover ~s or ever was a patient Jn our program unless ne*executes a prol3e' consent form or an order is issued after a hearing by the Cumberland County Court of Common Pleas in accordance with the Pennsylvania Act. Since Caron Fcundalion has not received a proper writte~ consent form and there has no[ been a good cause hearing In t~e Court of Common PLeas and an order allowing disclosure, we are compelJed by federal and slate Jaw not ;c release any information. This decisions was reached after a thorough review of the state and federal laws and regulations governing the confidentiality of alcohol end drug abuse oatier~t records and is not intended [n any way to impede jus:ice. I wou;d hope that basao on the above information you will resci?d the subpoenas that you have issued. Please contact me ~f you have any further questions Very truly yours, David A. Murdoch Executive Vice President Corporate Counsel PA SUl;reme Court ID #21963 OAM;~',jS Oave Freed, Esq. William J Fu[ton, /_0',4 Commonweal~.h PJchard C. Shover, Defendant DISTRICT COURT 09-3-04 CR-0287-01 AND NOW, this 26~ day ot' October 2001, upon receipt of the attached letl:er that will be treated as a Motion to quash the subpoenas issued to The Caren Foundation and Greg K~ssler. The Motion !s DENIED. The Bail Hearing and the Answer to the Rule to Show Cause shall remain as previously scheduled. Thomb~ Al. Placey ~-~ ASSr. D.A. David Freed William Fulton, Esq. David Nur:toch, Esq. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CARON FOUNDATION V. THE HONORABLE THOMAS A. PLACEY, DISTRICT JUSTICE Docket No. 01-6261 Civil Term PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Kindly, mark the above-referenced complaint withdrawn, discontinued and ended. Dated: November 7, 2001 Respectfully submitted, Mark S. Stewart, Esq., I.D. No. 75958 Wolf, Block, Schorr & Solis-Cohen LLP 212 Locust Street, Suite 300 Harrisburg, PA 17101 (717) 237-7160 DSH:29751.1/CAR126-095198 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY CARON FOUNDATION : : V. : THE HONORABLE THOMAS A. PLACEY, : DISTRICT JUSTICE : Docket No. 01-6261 Civil Term CERTIFICATE OF SERVICE I hereby certify that I am this day serving the foregoing document upon the person(s) and in the manner indicated below, which service satisfies the requirements of Pa. R.C.P. 440: VIA FIRST CLASS MAIL Thomas A. Placey District Justice 104 Sporting Hill Road Mechanicsburg, PA 17050 Date: November 7, 2001 es S. Henshell, Esquire DSH:29751.1/CAR126-095198