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Estate of Kelly ex rel Gafni v. Multiethnic Behavioral Health

September 9, 2009


The opinion of the court was delivered by: DuBOIS, J.



This case concerns Danieal N. Kelly ("Danieal"), a minor with cerebral palsy under the supervision of the Philadelphia Department of Human Services, who died from neglect and starvation while in the physical custody of her mother. The circumstances surrounding Danieal's death have garnered significant media and public attention, resulting in a number of criminal prosecutions and reform measures. This lawsuit, by and through the Estate of Danieal N. Kelly ("Estate"), asserts civil claims under state law against those allegedly responsible for Danieal's death. The question to be resolved by the Court at this juncture is whether or not certain interested parties may intervene in the litigation to assert federal claims on behalf of the Estate. Secondary to that question, the Court will consider the merits of any such federal claims.


A. Facts*fn1

Danieal was born on January 3, 1992 with cerebral palsy, a condition which limited her ability to walk and care for herself. Danieal's parents, Andrea Kelly and Daniel Kelly, exchanged custody of Danieal during her childhood, but she lived the last years of her life in Philadelphia with her mother and several of her eleven siblings. In August 2003, the Philadelphia Department of Human Services ("DHS") began receiving reports of neglect and abuse in the Kelly home, and in September 2005, Danieal and her siblings were placed in a DHS program known as Services to Children in their Own Home ("SCOH"). As part of the program, DHS outsourced the task of monitoring Danieal and her siblings to Multi-Ethnic Behavioral Health (MEBH), a company which received several million dollars in city contracts for performing such services. At no point did DHS remove Danieal from her parents' custody.

In the three years following August 2003, DHS received eleven (11) reports of neglect and/or abuse relating to the Kelly children. (Am. Compl. ¶ 56.) DHS assigned a social worker, Dana Poindexter, to investigate these reports. After the Kelly case was given to MEBH in or around September, 2005, DHS assigned Laura Sommerer, another social worker, to oversee the services provided by MEBH and to ensure that the Kelly children were safe. (Am. Compl. ¶ 58.) Aside from contracting with MEBH to monitor the Kelly family, no action was taken by DHS to ensure that Danieal received necessary care and medical attention. (Am. Compl. ¶ 59.)

Under the terms of its contract with DHS, MEBH agreed, inter alia, to monitor the Kelly children's safety and well being and to promptly report any unsafe conditions to DHS. (Am. Compl. ¶¶ 40-41.) As part of the monitoring function, MEBH agreed to have direct contact with the Kelly children at least twice per week, visit the Kelly home at least once per week, and have indirect contact with those people supporting the Kelly children, e.g., teachers and doctors, at least twice per week. (Am. Compl. ¶¶ 42-44.) Monitoring duties were assigned to Julius Murray, a MEBH employee, and Alan Speed, a MEBH student intern.*fn2 Mickal Kamuvaka, a co-founder of MEBH, was responsible for supervising Murray's and Speed's work. MEBH failed to fulfill the terms of the DHS-MEBH agreement with regard to the supervision of the Kelly family. (Am. Compl. ¶¶ 70-73.)

Philadelphia police officers found Danieal dead in her home on August 4, 2006. Fourteen years old at her death, she weighed only forty-two pounds, her body had no subcutaneous fat, and there was no trace of food or liquid in her stomach. Her body was found with multiple bedsores, which were infected and, in one instance, reached the bone.

B. Procedural History

On July 29, 2008, the Register of Wills of Philadelphia County issued Letters of Administration to Andrea Kelly and Daniel Kelly. On August 1, 2008, Brian Mildenberg, Esq., and Eric Zajac, Esq., ("Zajac"), counsel for Daniel Kelly and Andrea Kelly, filed the instant action on behalf of the Estate of Danieal Kelly in the Philadelphia Court of Common Pleas. The original Complaint asserted state law wrongful death and survival act claims against the following defendants: the City of Philadelphia, the Philadelphia Department of Human Services, the Commonwealth of Pennsylvania, the Pennsylvania Department of Public Welfare ("DPW"), Dana Poindexter, Laura Sommerer, Multi-Ethic Behavioral Health, Mickal Kamuvaka, and Julius Murray. The Complaint also alleged federal causes of action against the first six defendants for violations of Danieal's constitutional rights. On August 5, 2008, defendants removed the case to this Court.

The City of Philadelphia and DHS ("City Defendants") filed a motion to dismiss on August 8, 2008. The Commonwealth of Pennsylvania and DPW ("Commonwealth Defendants") filed a separate motion to dismiss on August 11, 2008. Before filing responses to these motions, plaintiff filed a motion to stay the case pending a determination by the Philadelphia Orphan's Court on a petition for the appointment of Abraham Gafni, a retired Philadelphia Court of Common Pleas Judge, as trustee ad litem for the Estate. This Court granted plaintiff's motion on August 25, 2008, staying the instant case.*fn3

The Philadelphia Orphan's Court, the Honorable Joseph D. O'Keefe presiding, ruled on December 18, 2008. Instead of appointing a trustee ad litem, the Orphan's Court removed Andrea Kelly and Daniel Kelly from their offices as Administrators of the Estate and ordered the issuance of Letters of Administration D.B.N. to Abraham Gafni. The Orphan's Court further instructed Gafni to take the necessary steps to substitute himself as the successor plaintiff in this action. On February 12, 2009, the Register of Wills of Philadelphia County issued Letters of Administration D.B.N. to Abraham Gafni, and on February 20, 2009, Abraham Gafni, by and through his attorney, Roy DeCaro, Esq., ("DeCaro") moved for his substitution as a party plaintiff in this action.

On February 17, this Court removed the case from civil suspense, but before taking any action with regard to the motion for substitution learned that Brian Mildenberg, counsel for the Estate when it was administered by Danieal's parents, filed a petition with the Orphan's Court, also on February 17, 2009, seeking the disqualification and removal of Abraham Gafni based on an alleged conflict of interest. In light of the ongoing dispute concerning the administration of the Estate, this Court reinstated the stay in this case on February 26, 2009. The Orphan's Court denied Brian Mildenberg's petition on April 29, 2009.

The Orphan's Court ruling was first brought to this Court's attention during a telephone conference with counsel for all represented parties and with all available unrepresented parties on June 22, 2009.*fn4 Brian Mildenberg and Zajac, former counsel for the Estate, ("former counsel") participated in the conference by virtue of their recorded appearance on behalf of the Estate and as counsel for plaintiffs in related litigation. DeCaro, current counsel for the Estate, ("current counsel") participated in the conference on behalf of Abraham Gafni. Collectively, counsel apprised the Court of a difference of opinion between current and former counsel concerning the viability of plaintiff's federal causes of action. It is this dispute which precipitated the instant objections and motion to intervene.

During the conference, current counsel expressed his opinion that plaintiff's civil rights claims against the City and Commonwealth defendants were "definitively foreclosed by the United States Supreme Court in DeShaney v. Winnebago County, 489 U.S. 189 (1989), and Castle Rock v. Gonzales, 545 U.S. 748 (2005), and by the Third Circuit in Bennett v. City of Philadelphia, 499 F.3d 281 (3d Cir. 2007)." (Pl. Resp. 2.) Accordingly, current counsel stated that he could not, in good faith, litigate those claims and intended to remove them by amending the Complaint. Former counsel defended the civil rights claims as bona fide claims supported by existing case law. Further, former counsel took the position that potential beneficiaries of the Estate have a right to intervene in the action and assert the federal claims if plaintiff remains unwilling to do so.

Following the conference, by Order dated June 22, 2009, the Court vacated the stay in this case for the limited purpose of allowing plaintiff, through current counsel, to file an amended complaint. The Court also granted defendants "and any other parties with standing" leave to file motions and/or objections relating to the amended complaint. The Amended Complaint, filed on July 1, 2009, asserts claims under the Pennsylvania Survival and Wrongful Death Acts against MEBH, Mickal Kamuvaka, Julius Murray, Dana Poindexter, and Laura Sommerer as well as new defendants Andrea Kelly and Daniel Kelly. The Amended Complaint does not include the original Complaint's civil rights claims against the City and Commonwealth Defendants or any other claims against those defendants.

On July 23, 2009, Zajac, on behalf of Troy Washington, Danieal's brother, filed a Motion to Intervene and to Object to the Withdrawal of Causes of Action for Civil Rights Violations and for Violations of Constitutional Protections Enjoyed by and/or Owed to his Sister, Danieal Kelly. On August 3, 2009, Mildenberg, on behalf of Daniel Kelly, filed Objections to Plaintiff's Proposed Amended Complaint. For purposes of this Memorandum, the Court will refer to Troy Washington and Daniel Kelly collectively as the "Objectors" and to their filings as the "Objections."

The Court conducted another case management conference on August 6, 2009 following the filing of the Objections. The conference was attended by the same represented parties and pro se defendants who participated in the June 22, 2009 conference. During the August 6, 2009 conference, the City and Commonwealth Defendants requested and were granted leave to file responses to the Objections filed by Troy Washington and Daniel ...

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