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HomeMy WebLinkAbout03-21-01 (11) 3,zl ,ol Amy J. Mendelsofln, Esquire Attorney No. 81084 RHOADS & SINON LLP One South Market Street P.O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 ' Attorneys for John M. Sullivan, M.D. IN RE: APPOINTMENT OF A : IN THE COURT OF COMMON PLEAS OF GUARDIAN OF THE ESTATE OF : CUMBERLAND COUNTY, MILDRED J. GERBER, AN : PENNSYLVANIA ALLEGED INCAPACITATED : ORPHANS' COURT DIVISION PERSON : No. 21-01-92 MOTION TO QUASH SUBPOENA AND/OR MOTION FOR PROTECTIVE ORDER NOW COMES John M. Sullivan, M.D., by and through his attorneys, Rhoads & Sinon LLP, and files the within Motion to Quash Subpoena and/or Motion for Protective Order, as follows: 1. On March 20, 2001, without prior notice or consultation, John M. Sullivan, M.D. was served with Marilyn Gerber's Subpoena to Attend and Testify via hand delivery by Marilyn Gerber to Dr. Sullivan's office in Camp Hill, Pennsylvania. The Subpoena is dated March 19, 2001. A copy of the Subpoena is attached hereto as Exhibit "A". 2. The Subpoena commands Dr. Sullivan to appear tomorrow, March 22, 2001, at 11:30 a.m. before this Court. The Subpoena also commands that Dr. Sullivan produce "all notes [and] medical records" on Mildred Gerber, the alleged incapacitated person, who is a former patient of Dr. Sullivan. 3. Immediately upon receipt of the Subpoena, Dr. Sullivan's office notified Dr. Sullivan's attorneys, Rhoads & Sinon LLP, of the Subpoena. 3815751 4. Because the Subpoena does not contain the caption of the case, Rhoads & Sinon LLP undertook an investigation of the nature of the proceeding by, inter alia, telephoning the Clerk of the Orphans' Court Division of the Court of Common Pleas of Cumberland County, the Chambers of The Honorable Edgar B. Bayley and the offices of Richard Rupp, Esquire, attorney for Petitioner, Frederick E. Gerber, III. 5. This Subpoena should be quashed and a Protective Order should be granted because Dr. Sullivan received insufficient notice of the hearing making his appearance unreasonably burdensome; and Sullivan has already turned over all of Mildred Gerber's medical records to Marilyn Gerber, and Dr. Sullivan's testimony would not be add any additional information beyond the information in the medical records. 6. Pa. R.C.P. No. 234.4 provides that "After a hearing, the court may make an order to protect a party, witness or other person from unreasonable annoyance, embarrassment, oppression, burden or expense." 7. The Subpoena, which Dr. Sullivan received on Tuesday, March 20, gives Dr. Sullivan insufficient time and notice to cancel and reschedule his full day appointments with patients on March 22, 2001 so that he can appear in Court. Dr. Sullivan is the sole physician in a busy internal medicine practice. On Thursday, March 22, 2001, Dr. Sullivan has a full day of appointments, which are scheduled, from 8 a.m. to 5 p.m. with twenty-three patients. Because Dr. Sullivan is the only physician in his practice, he cannot have another doctor cover his appointments on March 22. Requiring Dr. Sullivan to cancel and reschedule all of his appointments on this very short notice would be unreasonable and overly burdensome. -2- 8. Dr. Sullivan has already complied with the Subpoena's request for the medical records of Mildred Gerber, the alleged incapacitated person. Dr. Sullivan released to Marilyn Gerber and Mildred Gerber all records in his possession relating to Mildred Gerber on November 11, 2000. Dr. Sullivan has no records in addition to those already supplied to Marilyn Gerber. 9. Dr. Sullivan's testimony would not add any information about Mildred Gerber beyond the information contained in her medical records. Mildred Gerber is no longer a patient of Dr. Sullivan. Dr. Sullivan treated Mildred Gerber until November 13, 2000, on which date the doctor-patient relationship was terminated. 10. For the reasons stated above, the Subpoena should be quashed and/or a Protective Order should be granted. WHEREFORE, for all of the foregoing reasons, John M. Sullivan, M.D., by and through his attorneys, Rhoads & Sinon LLP, respectfully requests that this Honorable Court quash Marilyn Gerber's Subpoena and/or enter a Protective Order. Respectfully Submitted, RHOADS & SINON LLP Arfly-~. Mendelsohn, Esquire One South Market Square P. O. Box 1146 Harrisburg, PA 17108-1146 (717) 233-5731 Attorneys for John M. Sullivan, Date: ~-~/ St / 01 M.D. -3- 03/21/2001 11:45 7179200929 DR SULLIVAN PAGE B2 SUBPOENA Cumberland County, SS: GREETING: We command you and each of you, that, setting aside all manner of business and excuses, you be and. appear in your proper person before our Judges at Carlisle, at our County Court of Common Pleas, Orphans' Court Division, there to be held .in the County of Cumberland, On the ~'~~' day of ~~ ~/ at // : ~_M. [prevailing time] of that day, to testify all and singular those things which you shall know in a certain information for Fai~uure to appear may result in thc initiation of contempt of court proceedings against you and/or issuance of a ~bench warrant to Secure WITNESS the Honorable George E. Hoffer~ President Judge, at Carlisle, the day of ."~_~ A.D. Exhibit '~A" CERTIFICATE OF SERVICE I hereby certify that on this ~2-[~>¥ day of March, 2001, a tree and correct copy of the foregoing "Motion to Quash Subpoena and/or Motion for Protective Order" was served by means of facsimile upon the following: Marilyn Gerber 42 Drexel Place New Cumberland, PA 17070 Richard C. Rupp, Esquire Rupp & Meikle The Wagner Building 355 N. 21st Street Camp Hill, PA 17011 Jacqueline M. Verney, Esquire 44 South Hanover Street Carlisle, PA 17013 S{ephm'file H.-Peck ' VERIFICATION ~Iolm M. Sullivan, M.D., (klX)aoa and ~ays, gubjoot to the p~tmlfi~ of 18 Pa. C.S. § 4904 xdafing to unswom falsification to au~hodfies, that th~ facts ~t forth in ~h© foregoing Mot/on to Qua~ Sublmana and/or Motion for Protective Order a~ m~ and oott~c~ to th~ best of hi~ knowledge, info~/aat/on and be. licE