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JOHN P. GORDEN AND KATHLEEN GORDEN v. ANDREW CUTLER AND CATHERINE DAY CUTLER (09/07/83)

argued: September 7, 1983.

JOHN P. GORDEN AND KATHLEEN GORDEN, APPELLANTS,
v.
ANDREW CUTLER AND CATHERINE DAY CUTLER



No. 871 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Philadelphia County at No. 81-17427.

COUNSEL

Edward J. Gilson, Philadelphia, for appellants.

Andrew Cutler, Philadelphia, appellee, in propria persona.

Rowley, Popovich and Montgomery, JJ.

Author: Popovich

[ 324 Pa. Super. Page 37]

This is an appeal from an Order of the Court of Common Pleas of Philadelphia County (per Judge Samuel H. Rosenberg) "dismiss[ing]" appellants' (John and Kathleen Gorden's) "Petition For Reimbursement of Lying-In Expenses."

[ 324 Pa. Super. Page 38]

We reverse and note at the outset that this is a case of first impression.

The facts are as follows: In November of 1980, appellants retained counsel to assist them in a prospective adoption. Counsel was given the name of a doctor who, upon inquiry, asked him to contact a Miss Day. Counsel did so and was told by Miss Day that she was pregnant, that she was primarily interested in seeing that her child be adopted by Roman Catholics "and also someone to pay the lying-in expenses." (N.T. 4)

Counsel, after securing the necessary information as to cost and the consent of his clients, phoned Miss Day that appellants "would pay the bills." Id. This was confirmed in a letter to Miss Day dated January 8, 1981, which estimated the doctor's, hospital's and pediatrician's bill to total approximately $2,850.

The natural father (Andrew Cutler) and mother were informed on numerous occasions by counsel "that if [Miss Day] wanted to change her mind she could do it; but that if [appellants] paid the expenses [they] wanted [Andrew Cutler and Miss Day] to sign a contract to adopt." (N.T. 6-7) In other words, the appellants were willing to pay the medical expenses "on the condition" that the natural parents executed a consent to adopt agreement. After the natural parents acknowledged that they understood the terms (payment of medical expenses and raising the child a Catholic) an adoption agreement was signed "and then [counsel] paid the bill[s.]" (N.T. 7)

After the child was turned over to the appellants, but before the adoption papers could be filed, a Petition For Writ of Habeas Corpus was filed by the natural parents seeking the return of their baby boy. A hearing was held pursuant to the Writ and the less-than-4-month-old infant was returned to the natural parents. However, no provisions were made in regard to the payment of the bills. Thereafter, the Petition under consideration here was filed by the appellants, wherein they alleged:

[ 324 Pa. Super. Page 3910]

. That relying upon the[] properly executed Consents by the natural parents, the petitioners herein, John P. Gorden and Kathleen F. Gorden, paid all the medical expenses arising from the birth of Baby Boy Day, and that these expenses then totaled $2,625.00. On May 20, 1981, the intermediary, Edward J. Gilson, Esquire, delivered the child Baby Boy Day to the petitioners herein. That on June 10, 1981, subsequent to the birth of Baby Boy Day an additional bill was received by his natural mother, which was sent to petitioners' attorney and also paid by the petitioners. This was in the amount of $151.84.

11. That pursuant to this agreement, the Petitioners paid the following bills associated with the natural mother's pregnancy, delivery, and care of the child after placement:

Frankford Hospital $1,700.00

Frankford Hospital 151.84

Charles I. Hoffmeier, M.D. 925.00

Dr. Malkin, Pediatrician 64.00

Prescription, child's ear 5.00

Frankford Hospital, Outpatient blood work 180.00

$3,025.00 [sic]

A copy of these bills is attached hereto, made part hereof, and marked Exhibit "C".

12. . . .

13. That six weeks after the birth of Baby Boy Day, the natural parents advised that they had changed their minds and on July 20, 1981, a Petition for Writ of Habeas Corpus on behalf of the natural parents was filed and a Writ of Habeas Corpus issued and was served on petitioners' attorney on September 1, 1981. A Hearing was held on September 17, 1981, and a Decree was issued awarding custody to the natural parents, now known in marriage as Andrew Cutler and Catherine Day Cutler, his wife, per Rosenberg, J.

14. That pursuant to said Decree, the child Baby Boy Day was returned to the custody of his natural parents on September 22, 1981, by the petitioners' attorney.

[ 324 Pa. Super. Page 4015]

. That no provision for reimbursement of the moneys paid by the petitioners was made at the Hearing of the Writ of Habeas Corpus despite the objections of petitioners' counsel and the filing of a Petition for Involuntary Termination which also requested reimbursement as special relief. That counsel requested that these matters be consolidated, but the Court refused.

16. That to date petitioners have expended over $3,000.00, relying upon the Consents and Agreements of Catherine Day Cutler and Andrew Cutler. That although the said Cutlers have changed their minds, they have made no offer to reimburse petitioners' request. Accordingly, petitioners filed this Petition.

WHEREFORE, your petitioners pray this Honorable Court enter a Decree directing Respondents Andrew Cutler and Catherine Day Cutler, his wife, to reimburse petitioners, John P. Gorden and Kathleen F. Gorden, his wife, for the medical expenses of ...


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