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HomeMy WebLinkAbout02-1407 CivilROSHANAK SHEIKH-SHARIF, Plaintiff VS. KUROSH SHARIF-ZADEH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1407 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR COURT ORDER PURSUANT TO PA.R.C.P. 3117 IN AID OF EXECUTION OF JUDGMENT BEFORE HESS. J. OPINION AND ORDER The plaintiff, Roshanak Sheikh-Sharif, and the defendant, Kurosh Sharif-Zadeh, were divorced on October 30, 2001. (Plaintiff's Motion for Court Order, para. 3.) An amended judgment in divorce for spousal support, child support and equitable distribution was issued by the Superior Court of New Jersey, Chancery Division, Somerset County. (Plaintiff' s Motion for Court Order, para. 3.) On March 22, 2002, a judgment in the amount of $620, 007. t 8 was entered against the defendant pursuant to a duly filed praecipe. (Plaintiff' s Motion for Court Order, para. 4.) To date, this judgment has not been satisfied. (Plaintiff's Motion for Court Order, para. 5.) The plaintiff alleges that the defendant, a doctor, has hidden assets. This is based on her review of a 1099 issued to the defendant in 1998. (Plaintiff's Motion for Court Order, para. t0.) The 1099 indicates that the defendant was paid substantial sums for rendering medical services to CMS Centers for Medicare and Medicaid Services. CMS is located in Camp Hill, Cumberland County, Pennsylvania. (N.T. at t0.) CMS is a Medicare intermediary and a 02-1407 CIVIL subcontractor to the United States government. The plaintiff believes that the defendant deposited checks from CMS into a bank account and she wishes to review the front and back of the checks paid to the defendant by CMS to determine where the checks were deposited. (N.T. at 18.) The plaintiff served the defendant with Notice of Intent to Serve a Subpoena on CMS and the defendant made no objection. (Plaintiff's Motion for Court Order, paras. 7 and 8.) The plaintiff then served a subpoena on CMS, who forwarded the subpoena request to the regional office of the United States Department of Health and Human Services. Alvina M. Ossman, FOIA Coordinator, replied by letter to plaintiff' s counsel on behalf of the federal agency. Ossman's letter stated that CMS refused to honor the subpoena and that the Privacy Act (5 U.S.C. Section 522a) precluded release of the requested records. Aetna U.S. Healthcare was served with a similar subpoena which they honored. (N.T. at 4.) The plaintiff has sought an order compelling CMS' s compliance with the subpoena in accordance with Pa.R.C.P. 3117. This court issued a rule on CMS to show cause why that relief should not be granted. The Secretary of the Department of Health and Human Services replied on behalf of CMS. The Secretary's position is that this court does not have the power to grant the requested order. The federal Privacy Act states that no agency of the federal government shall disclose any records pertaining to an individual unless that individual files a written request to have the records disclosed. See 5 U.S.C.A. Section 552a(b). However, the statute contains twelve exceptions, one of them being where disclosure is "pursuant to the order of a court of competent jurisdiction." 5 U.S.C.A. Section 552(b)(11). The U.S. 2 02-1407 CIVIL Department of Health and Human Services, through its counsel, has argued that in order for a court to be of"competent jurisdiction" it must be a federal court. We disagree. "A court of competent jurisdiction" as that term is used in Section 552a(b)(11), may include a court other than the United States District Court." In Re Tucker, 689 A.2d 1214, 1215 (D.C. 1997.) In Tucker, the Office of Bar Counsel moved for an order directing the Federal Bureau of Investigation (FBI) to produce materials relevant to an attorney disciplinary hearing. Tucker, 689 A.2d at 1214. Counsel for the FBI advised Bar Counsel that it could not lawfully make the records available without the order of a court of competent jurisdiction. Id. The defendant contended that the District of Columbia Court of Appeals was not a court of competent jurisdiction because it was not a United States District Court. Id. In determining that the court was, in fact, a court of competent jurisdiction the Tucker court noted that other provisions in both the Privacy Act and the Freedom of Information Act specifically required that the order come from a federal court. 552a(b)(11) does not specify that the order must come from a federal court. The Tucker court found no reason to read into the statute a limitation that does not exist in the text. Id. at 1215. The same result was reached in Moore v. United States Postal Service, 609 F.Supp. 681,682 (E.D.N.Y. 1985). The District Court of Eastern New York held that a subpoena issued to the Postal Service from a New York state court constituted an order from a "court of competent jurisdiction. In Tootle v. Seaboard Coast Line Railroad Co._, 468 So.2d 237, 240 (Fla. Dist. Ct. App. 1985) the District Court of Appeals of Florida held that a state trial court's order fit within the 3 02-1407 CIVIL exception to the Federal Privacy Act for disclosures pursuant to the order of a court of competent jurisdiction. In Tootle, the plaintiff in a personal injury case petitioned for a writ of certiorari to quash an order compelling the deposition of a psychologist who examined him for the Social Security Administration. Tootle, 468 So.2d at 238. The Tootle court held that 552a(b)(11) should be strictly construed in favor of disclosure, especially in the type of situation where a state court rules on discovery matters in a civil trial. Id. at 239. The HHS Secretary also argues that the Doctrine of Sovereign Immunity precludes the state court from exercising jurisdiction to compel CMS to produce the records requested by the plaintiff. (Secretary of Health and Human Services' Response to Plaintiff' s Motion, para.4.) The HHS Secretary correctly states that an action against a federal agency or official will be treated as an action against the sovereign when the judgment sought restrains the Government from acting or compels it to act. Portsmouth Redevelopment & Housing Authority v. Pierce, 706 F.2d 471,473 (4th Cir. 1983) (citing Dugan v. Rank, 372 U.S. at 620, 83 S.Ct. at 1006.) While it is true that an order from this court would compel CMS to act, it must be noted that CMS is a private company. CMS is merely a subcontractor to the United States Government. Compelling CMS to comply with the subpoena is not the same as compelling the government to act. Therefore, enforcement of the subpoena will not violate the Doctrine of Sovereign Immunity. The HHS Secretary also argues that enforcement of the subpoena would be a violation of the Supremacy Clause. (Secretary of Health and Human Services' Response to Plaintiff' s Motion, para. 5.) The Secretary contends that CMS is following properly promulgated agency regulations. Properly promulgated agency regulations implementing federal statutes have the force and effect of federal law which state courts are bound to follow. Chrysler Corp. v. Brown, 4 02-1407 CIVIL 441 U.S. 281,295-96, (1997). CMS, however, is not a United States Government Agency. It is a subcontractor to the government. The plaintiff is not attempting to override a government agency's regulations but merely attempting to enforce discovery on a private company. The Privacy Act does not specify the standard by which discovery may be ordered and there has been some disparity among the courts on the appropriate standard. Compare, e.g. Perry_ v. State Farm Fire & Casualty Co., 734 F.2d 1441, 1447 (11th Cir. 1984) (courts must balance need for disclosure against potential harm from disclosure), cert denied, 469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d. 778 (1985); with Laxalt v. McClatchy, 809 F.2d 885, 888 (D.C. Cir. 1987) (standard for court order is the same as usual discovery standard.) It is unnecessary to apply the Perry_ standard because the Third Circuit has assumed the Laxalt standard is to be used in Privacy Act controversies. See Miskiel v Equitable Life Assurance Society of the U.S., 1999 WL 95998 (E.D.P.A. 1999).~ Since the standard to be used in this case is the usual discovery standard, PaR. CP. 3117(a) is the applicable rule. Rule 3117(a) provides in pertinent part: Plaintiff at any time after judgment, before or after the issuance of a writ of execution, may, for the purpose of discovery of assets of the defendant, take the testimony of any person, including a defendant or a garnishee, upon oral examination or written interrogatories as provided by the rules relating to Depositions and Discovery. The prothonotary of the county in which the judgment has been entered or of the county within this Commonwealth where the deposition is to be taken, shall issue a subpoena to testify. Pa.R.C.P. 3117(a), 42 Pa. Cons. Stat. Plaintiffs are not restricted to obtaining discovery from defendants or garnishees, but may seek discovery from any person who may have information ~ Even were we to apply a balancing test, it is clear, in this case, that the need for disclosure far outweighs any potential harm to the defendant or anyone else. 02-1407 CIVIL regarding the location of assets of the judgment debtor. Painewebber, Inc. v. Devin, 658 A.2d 409, 413 (Pa. Super. 1995). It is obvious that CMS may have information regarding the location of assets of the defendant. Thus under PaR. C.P. 3117(a), the plaintiff is entitled to the requested discovery. ORDER AND NOW, this day of July, 2003, upon consideration of plaintiff, Roshanak Sheikh-Sharif' s Motion for Court Order pursuant to Pa.R.C.P. 3117 to Aid in the Execution of a Judgment, and any response thereto, it is hereby ordered and decreed that said motion is granted. Within thirty (30) days of the date of this order, the CMS Centers for Medicare and Medicaid Services, must comply with the provisions of the subpoena that was duly served upon it on August 14, 2002, by producing the following documents or things at the law offices of Lee M. Herman, Esquire, P.C., 200 East State Street, Suite 306, Media, PA 19063, at a mutually convenient time: All Documents and all Reports in your possession Regarding: a. Legible copies of the front and back sides of all checks paid to Dr. Kurosh Sharif-Zadeh from 1997 to the present; OMB No. 1545-0115; Control No. 222241854; Tax ID No. 22-2241854. b. Records of any and all payments made by you to Dr. Kurosh Sharif-Zadeh from 1997 to the present; OMB No. 1545-0115; Control No. 222241854; Tax ID No. 22-2241854. Or, in the alternative, CMS Centers for Medicare and Medicaid Services may deliver or mail legible copies of the documents or things requested by this subpoena, 6 02-1407 CIVIL together with the certificate of compliance, to the party making this request at the address listed above. Nothing herein shall prevent CMS from imposing a reasonable charge upon the plaintiff for the copying of the aforementioned documents. BY THE COURT, Lee M. Herman, Esquire For the Plaintiff Kurosh Sharif-Zadeh Defendant Lynda R. Dennis, Esquire Assistant Regional Counsel U. S. Department of Health and Human Services Office of General Counsel, Region III Public Ledger Building, Suite 418 150 S. Independence Mall West Philadelphia, PA 19106-3499 :rlm Kevin A. Hess, J. 7 ROSHANAK SHEIKH-SHARIF, Plaintiff VS. KUROSH SHARIF-ZADEH, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 02-1407 CIVIL CIVIL ACTION - LAW IN RE: MOTION FOR COURT ORDER PURSUANT TO PA.R.C.P. 3117 IN AID OF EXECUTION OF JUDGMENT BEFORE HESS. J. ORDER AND NOW, this 16th day of July, 2003, upon consideration of plaintiff, Roshanak Sheikh-Sharif' s Motion for Court Order pursuant to Pa.R.C.P. 3117 to Aid in the Execution of a Judgment, and any response thereto, it is hereby ordered and decreed that said motion is granted. Within thirty (30) days of the date of this order, the CMS Centers for Medicare and Medicaid Services, must comply with the provisions of the subpoena that was duly served upon it on August 14, 2002, by producing the following documents or things at the law offices of Lee M. Herman, Esquire, P.C., 200 East State Street, Suite 306, Media, PA 19063, at a mutually convenient time: All Documents and all Reports in your possession Regarding: a. Legible copies of the front and back sides of all checks paid to Dr. Kurosh Sharif-Zadeh from 1997 to the present; OMB No. 1545-0115; Control No. 222241854; Tax ID No. 22-2241854. b. Records of any and all payments made by you to Dr. Kurosh Sharif-Zadeh from 1997 to the present; OMB No. 1545-0115; Control No. 222241854; Tax ID No. 22-2241854. Or, in the alternative, CMS Centers for Medicare and Medicaid Services may deliver or mail legible copies of the documents or things requested by this subpoena, together with the certificate of compliance, to the party making this request at the address listed above. Nothing herein shall prevent CMS from imposing a reasonable charge upon the plaintiff for the copying of the aforementioned documents. BY THE COURT, Lee M. Herman, Esquire For the Plaintiff Kurosh Sharif-Zadeh Defendant Lynda R. Dennis, Esquire Assistant Regional Counsel U. S. Department of Health and Human Services Office of General Counsel, Region III Public Ledger Building, Suite 418 150 S. Independence Mall West Philadelphia, PA 19106-3499 Kevin A. Hess, J. :rlm