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VIRGINIA BROWN v. DELAWARE VALLEY TRANSPLANT PROGRAM (04/13/88)

filed: April 13, 1988.

VIRGINIA BROWN, AS ADMINISTRATRIX OF THE ESTATE OF LAWRENCE BROWN AND INDIVIDUALLY, JOAN BROWN SPINA, JOHN BROWN, THOMAS R. BROWN, APPELLANTS,
v.
THE DELAWARE VALLEY TRANSPLANT PROGRAM, ARTHUR HARRELL, INDIVIDUALLY AND IN HIS CAPACITY AS TRANSPLANT COORDINATOR OF THE PROGRAM, HOWARD NATHAN, INDIVIDUALLY AND IN HIS CAPACITY AS EXECUTIVE DIRECTOR OF THE PROGRAM, BRANDYWINE HOSPITAL, NORMAN LEDWIN, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF BRANDYWINE HOSPITAL, JAMES ARGIRES, M.D., INDIVIDUALLY AND IN HIS CAPACITY AS A STAFF MEMBER OF BRANDYWINE HOSPITAL PHILIPPE OUELLETTE, INDIVIDUALLY AND IN HIS CAPACITY AS VICE PRESIDENT OF BRANDYWINE HOSPITAL, CHARLES R. WAGNER, M.D., ST. CHRISTOPHER'S HOSPITAL FOR CHILDREN, SAMUEL HEED, ESQ.



Appeal from the Order Entered on January 16, 1987, in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 3152 Aug. 1986.

COUNSEL

Joseph F. Lawless, Jr., Philadelphia, for appellants.

George E. Rahn, Jr., Philadelphia, for Brandywine Hosp. and Ledwin, appellees.

Roberta D. Liebenberg, Philadelphia, for Heed, appellee.

Cavanaugh, Beck and Hester, JJ.

Author: Hester

[ 372 Pa. Super. Page 631]

This is a companion to the appeal filed at Nos. 584 and 586 Philadelphia, 1987. The trial court dismissed all claims against Attorney Samuel Heed, one of nine defendants, primarily on the basis of the immunity accorded an attorney for action taken in representation of a client. The sole issue is the propriety of the dismissal of the claims against the attorney. We hold that dismissal was proper, and affirm.

On October 30, 1984, Lawrence Brown was discovered lying on a roadside in Chester County with a gunshot wound in his head. He was transported to Brandywine Hospital in Chester County, where he was placed on life support systems. Hospital personnel determined that he had suffered brain death, and decided to seek permission to use Brown's heart and kidneys for transplantation.

The hospital directed its counsel, Samuel Heed, to prepare a petition requesting a court order granting consent to the extraction of Brown's organs for transplantation. Heed presented the petition to the Chester County Court of Common Pleas, alleging that the identity of Lawrence Brown, identified as "John Doe," was unknown and that the hospital was unable to contact his next-of-kin to obtain consent. Following a hearing, the court granted the petition. With court approval, Brown's heart and kidneys were removed under the auspices of the Delaware Valley Transplant Program.

Representatives of the decedent filed a multi-count complaint against the Delaware Valley Transplant Program and some of its officers, Brandywine Hospital and various officers and staff physicians, and Mr. Heed, counsel for the hospital. The complaint alleged that although the defendants knew the identity of Lawrence Brown, they conspired to obtain court authorization for the removal of his organs in violation of the law, rather than seeking the authorization of his next-of-kin, resulting in extreme emotional distress.

[ 372 Pa. Super. Page 632]

The complaint contained six counts: mutilation of a corpse, intentional infliction of emotional distress, civil conspiracy, malicious use of process, assault and battery, and negligent infliction of emotional distress. The court sustained Attorney Heed's demurrer to the complaint and dismissed all six counts as to Heed with prejudice. The court held that the second, third, and sixth counts were based on action taken by Heed in the course of providing legal representation to his client, Brandywine Hospital, and were thus absolutely privileged under Thompson v. Sikov, 340 Pa. Super. 382, 490 A.2d 472 (1985). The court also held that appellants failed to allege the requisite elements of an action for malicious use of process under 42 Pa.C.S. ยง 8351, as Heed's petition did not assert claims against appellants or seek any relief from them. The remaining counts, mutilation of a corpse and assault and battery, were dismissed due to lack of well-pleaded allegations that Heed had any physical contact whatsoever with Mr. Brown's body.

Appellants have not argued that dismissal of count two, four, or six was erroneous. Brief for appellants at 1-34. They have abandoned any challenge they may have had to the dismissal of those counts of the complaint. Commonwealth v. Balch, 328 Pa. Super. 71, 76, 476 A.2d 458, 461 (1984); Trustees of First Presbyterian Church of ...


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