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COMMONWEALTH EX REL. ROMANOWICZ v. ROMANOWICZ (12/11/68)

decided: December 11, 1968.

COMMONWEALTH EX REL. ROMANOWICZ, APPELLANT,
v.
ROMANOWICZ



Appeal from order of County Court of Philadelphia, No. 13255, in case of Commonwealth ex rel. Jacquelynne Romanowicz v. Michael Romanowicz.

COUNSEL

Dante Mattioni, with him John Mattioni, Peter A. Galante, and Mattioni, Mattioni & Mattioni, for appellant.

Edward R. Becker, with him Becker, Becker & Fryman, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 213 Pa. Super. Page 384]

This is an appeal from an Order of the County Court of Philadelphia awarding custody of three children to the father. While both parties have filed lengthy briefs relating to their fitness, we believe it unnecessary to pass on these issues at the present time. In our opinion, this matter must be remanded to the lower court by reason of the lower court's failure to allow the introduction and consideration of certain evidence.

Prior to the hearing in this case the parties had entered into the following stipulation: "And Now, this 17th day of April, A.D. 1967, it is agreed by and between Peter A. Galante, Esquire, attorney for Petitioner and Edward R. Becker, Esquire, attorney for defendant, Michael Romanowicz that the parties hereto submit to a medical and psychiatric examination by the appropriate physician of the Domestic Relations Division of the County Court of Philadelphia." Pursuant to this stipulation, psychiatric examinations were made of each of the parties.

The wife twice served subpoenas upon the Medical Division of the County Court. On each occasion, two subpoenas were served. One was directed to the medical records custodian of the County Court to produce the reports in their files relating to the parties. The second was directed to the physician who actually conducted the examinations for the purpose of having him appear as a witness and subject himself to examination.*fn1

[ 213 Pa. Super. Page 385]

On each occasion, the County Court Medical Division refused to accept the service of the subpoenas and refused to appear in court, except upon special order of the court. Application was made to the lower court to issue such a special order, but the application was refused.

Testimony of the Psychiatrist

In our opinion the court erred in failing to allow the wife to introduce the testimony of the psychiatrist relating to her own examination. This conclusion is not based on the written stipulation entered into by the parties. The court may well have found that the stipulation was not intended to allow the admission of oral testimony.

The Court's action, in this regard, appears to be based upon the physician-patient privilege. A patient, however, always has the right to introduce her own physician's testimony, ...


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