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May 3, 1993

JAMES EDWARD YOUNG and JOAN YOUNG, Individually, as Husband and Wife, and as Administrators of the Estate of Allan Schreffler a/k/a James Edward Young, Plaintiffs,

The opinion of the court was delivered by: LOWELL A. REED, JR.

 Reed, J. May 3, 1993


 This case stems from the tragic sudden death of Allan Schreffler ("Schreffler" or "the child"), a foster child awaiting adoption by the plaintiffs. Plaintiffs assert various constitutional and supplemental state claims against Children and Youth Services of Delaware County ("CYS"), the office which oversaw Schreffler's intended adoption, and several of its agents.


 The unhappy tale from which this lawsuit arose, taken from the complaint, is as follows. Plaintiffs James Edward Young and Joan Young (collectively "plaintiffs") are residents of Drexel Hill, Pennsylvania. They were married in June 1976 and were allegedly unable to conceive a child during the course of their marriage.

 In 1989, plaintiffs claim that they filed an application for adoption with CYS through its foster parent and adoption program. *fn1" In July 1990, plaintiffs purportedly received a telephone call from a CYS employee, who advised plaintiffs that a child was available for adoption. The child, Schreffler, was placed into the custody of plaintiffs by CYS on September 27, 1990. The parental rights of Schreffler's biological parents were allegedly terminated in December 1990 and January 1991 in Delaware County, Pennsylvania. Plaintiffs assert that they filed a Report of Intention to Adopt Schreffler on February 11, 1991.

 Over the course of 1990 and 1991, plaintiffs contend that they had numerous conversations with the defendants concerning the social background of Schreffler, the adoption process, and the medical condition of the child. During this process, plaintiffs claim that CYS investigated plaintiffs and found them to be fit and appropriate parents to adopt a child through their agency.

 Plaintiffs assert that while learning about Schreffler, they were told by defendants that a "left-sided weakness" had been identified in him, and that he would be re-tested. On several subsequent occasions, plaintiffs allege that defendants informed them that the child had been tested again and that the neurological test results were normal. Plaintiffs claim, however, that defendant CYS, through defendant Dr. Albert Lemicke ("Lemicke"), ordered additional neurological testing of Schreffler. They contend that these additional tests were conducted by Dr. Charles B. Brill ("Brill"), Clinical Professor of Pediatrics and Neurology at Jefferson Medical College in Philadelphia, who issued a report to Lemicke on August 9, 1990. Plaintiffs set forth the following excerpt from the report in the complaint: *fn2"

Allan Schraffler [sic] has mild bi-lateral long tract signs, left more marked than the right. In addition, he has a suggestion of a left homonymous hemianopia . . . [and] prospective adopting parents should be told of the neurologic abnormalities and be made aware of the fact that the child's future neuro-developmental prognosis is guarded.

 (Emphasis in complaint.)

 Plaintiffs further allege that on August 17, 1990, a test known as an EEG was performed on the child at the request of Brill and Lemicke. The EEG report purportedly stated that the results of this test were "probably normal; however, it is technically limited and should be repeated at no charge to the patient." Plaintiffs claim that defendants knew or should have known that the results of the EEG and Brill's report suggested that Schreffler suffered from neurologic abnormalities. Plaintiffs assert that after August 1990, defendants told them only that tests of the child produced normal results and that "everything was okay." They contend they were never informed that an additional EEG was recommended by the electroencephalographer who performed the first EEG test.

 Plaintiffs further claim that upon receiving the assurances from defendants that the child's health was sound, they accepted custody of him on September 27, 1990 with the intention of adopting him. On April 1, 1991, plaintiffs allege that they found Schreffler not breathing in his crib. They assert that in response, they rushed Schreffler to the Fitzgerald Mercy Catholic Medical Center in Darby, Pennsylvania. The child was allegedly then transported by Sky Flight Care to Thomas Jefferson University Hospital in Philadelphia, where he was pronounced dead on April 2, 1991. Plaintiffs do not describe the cause of death in the complaint or in the papers they have submitted in response to the pending motion. Defendants, however, state in their supporting memorandum of law that Schreffler died from Sudden Infant Death Syndrome ("SIDS"), commonly referred to as "crib death." Plaintiffs were appointed administrators of Schreffler's estate in March 1992.

 After Schreffler's death, plaintiffs claim that they requested and received his medical records, which revealed to the plaintiffs for the first time that a second EEG test had been recommended, that neurological abnormalities existed, and that the child's prognosis concerning his future neurological development remained guarded. Plaintiffs assert that at no time prior to Schreffler's death did CYS, Lemicke, or any other agent or employee of CYS disclose to them the neurological information described above, notwithstanding numerous requests plaintiffs allegedly made for this information.


 A. The Rule 12(b)(1) Standard of Review

 Defendants have moved to dismiss the complaint pursuant to Rule 12(b)(1), claiming that this Court lacks subject matter jurisdiction. I recently explained the unique procedural filter through which a complaint is reviewed under Rule 12(b)(1) in Marlee Electronics Corp. v. Eclectic Technologies, et al., No. 90-5536, 1993 U.S. Dist. LEXIS 1123 (E.D. Pa. Feb. 4, 1993).

 A Rule 12(b)(1) motion to dismiss can take two forms: It can attack a complaint on its face, what the cases call a "facial attack," or it can attack the existence of subject matter jurisdiction in fact, an approach commonly described as a "factual attack." Marlee Electronics Corp., 1993 U.S. Dist. LEXIS 1123, at *16 (citing Mortensen v. First Fed. Sav. and Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)). In reviewing a facial attack, a court must consider the allegations of the complaint as true. Id. at *17 (citing Mortensen, 549 F.2d at 891). In a factual attack, however,

the trial court may proceed as it never could under Rule 12(b)(6) or Fed. R. Civ. P. 56. Because at issue in a factual 12(b)(1) motion is the trial court's jurisdiction -- its very power to hear the case -- there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case. In short, no presumptive truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not preclude the court from evaluating for itself the merits of jurisdictional claims.

 Id. (citing Mortensen, 549 F.2d at 891). The factual evaluation under Rule 12(b)(1) may occur at any stage of the case, "from the time the answer has been served until after the trial has been ...

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