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Ausec v. Huminskas Anioly Inc.

United States District Court, W.D. Pennsylvania

January 25, 2017

JOHN AUSEC, et al., Plaintiffs,
v.
HUMINSKA'S ANIOLY, INC., et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          ROBERT C. MITCHELL United States Magistrate Judge.

         Plaintiffs, John and Angela Ausec, Patricia Descarage, and Irene and Joseph Trzybinski, bring this action against Defendants, Huminska's Anioly, Inc. (“HA”) and its principal, Mary M. Huminski, alleging claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-68 (RICO), and state law arising out of Defendants' providing adoption services to enable Plaintiffs to adopt children from Poland. Specifically, Plaintiffs allege that Defendants made false representations about the children's health and physical condition and raise claims under Pennsylvania law of wrongful adoption, fraudulent misrepresentation, innocent misrepresentation, intentional infliction of emotional distress (IIED), tortious interference with contract expectancies and negligence, in addition to their two RICO claims.

         Currently pending before the Court is a motion for summary judgment, filed by Defendants. Plaintiff has filed a brief in opposition and Defendant has filed a reply brief. For the reasons that follow, the motion will be granted with respect to Counts I, II, V, VI, VII, VIII and IX, and denied with respect to Counts III and IV. In addition, Defendant Huminska's Anioly, Inc. will be dismissed without prejudice.

         Facts

         Plaintiffs are United States citizens who contacted HA, a Pennsylvania corporation that operated as an international adoption agency that specialized in adoptions from Poland, for assistance in adopting children. (Am. Compl. ¶¶ 1-3, 18.)[1] They allege that Huminski, on behalf of HA, misrepresented-or at least failed to diligently investigate-the health conditions of children she wanted them to adopt and that they later learned that the children had severe disabilities and health problems which Huminski had concealed from them. (Am. Compl. ¶¶ 31-32.)

         The Ausecs

         The Ausecs indicate that they contracted with HA to adopt a Polish child on July 19, 2004, but that they stated (and their home study made it clear) that they could care for only one or two girls with minor correctible health issues. (Am. Compl. ¶¶ 34-38.) In August 2007, they received a referral for a child (“M”), but when they saw that an EEG had been ordered for M, they questioned Huminski, who contended that the EEG was “standard testing in Poland.” She also asserted that, if the doctors in Poland had found any problems with M, they would have noted it in her records. Based upon these assertions, the Ausecs agreed to travel to Poland in November 2007 and again in January 2008 to meet M. Once in Poland, the Ausecs were required by Huminski to use the services of Jozef Jurga, HA's Polish attorney, for translation, travel and legal services. The Ausecs state that Jurga claimed to represent them and to be looking out for their best interests, but that he was in fact an agent of Huminski. (Am. Compl. ¶¶ 43-59.)

         The Ausecs expressed concerns to Jurga about M, who was 26 months old but moved abnormally when walking or running and was unable to walk up or down stairs. Jurga asserted that the problem was “environmental” and that in a better environment M would outgrow these problems. They also allege that Jurga refused their requests to see other children in the orphanage and that, at the time they were visiting, Jurga actually had M's medical file in his possession but did not let them see it. The medical file revealed that M had been diagnosed with mental retardation and had been hospitalized on more than one occasion with neurological disorders. M would later be diagnosed by a United States doctor with cerebral palsy. Indeed, the Ausecs took M to the University of Michigan and the Cleveland Clinic, and neurologists at both institutions concluded that M had basic signs of cerebral palsy since birth and that, if she had been treated by Polish doctors, it would have been diagnosed. When the Ausecs informed HA of these problems, Huminski responded in an email message dated October 31, 2008 that it was their fault for “failing to get to know M” while in Poland. They paid $46, 396 in fees related to this wrongful adoption. (Am. Compl. ¶¶ 62-94.)

         The Trzybinskis

         Like the Ausecs, the Trzybinskis informed HA that they were interested in adopting up to two children, but that they could not adequately care for special needs children. (Am. Compl. ¶¶ 95-98.) They allege that, over a period of seven months in 2007, HA tried repeatedly to stray from their requirements and referred a variety of children who had special medical and emotional needs that placed them outside their approved criteria. The Trzybinskis paid a total of $2, 700 in adoption fees to Huminski herself, in addition to other money spent on dossiers completion, translation, etc. (Am. Compl. ¶¶ 101-04.)

         In October 2007, Huminski referred the Trzybinskis two children, PN and PK. The Trzybinskis expressed concern that they would not be able to care for the children if they came from an unstable background that resulted in psychological and emotional effects, and Huminski responded that most native Poles want very young children and that is why older ones, such as PK and PN, are passed over, thereby implying that they had no health or emotional issues. (Am. Compl. ¶¶ 105-08.)

         They allege that Huminski pressed them to adopt PK and PN and sent them medical records, but some of the records were still in Polish and Huminski asserted that they had been developing normally so they did not need any additional psychological testing. On November 11, 2007, the Trzybinskis emailed Huminski a cautious “wish to adopt PK and PN, ” but reserved the right to withdraw if her statements proved to be false. They also told Huminski not to advise the children that they would be adopting them. Jurga and his wife Ania (who acted as a translator) confirmed that the Trzybinskis would be introduced as “Aunt and Uncle.” On November 20, 2007, Huminski sent them two petitions for adoption, a power of attorney naming Jurga and an invoice for $6, 000 payable to Jurga. (Am. Compl. ¶¶ 111-22.)

         After considerable delay, Huminski finally came through with the travel dates on February 4, 2008, and on March 5, 2008, the Trzybinskis traveled to Poland, despite the fact that Joe Trzybinski was feeling “terribly sick.” The Trzybinskis met with PK and PN for the first time on March 9, 2008, and saw that the children demonstrated significant behavioral problems which were indicative of developmental disorders and exposure to abusive environments. In addition and contrary to Huminski's representations, they learned that PN had been abused, which became clear during a judge's questioning of the children's foster parent in open court. (Am. Compl. ¶¶ 130-46.)

         The Trzybinskis expressed their concerns to Huminski, but she discouraged them from contacting friends, family and other professionals and she also pressured them to conclude the adoption. When the Trzybinskis informed Huminski about Joe's health, she sent a Polish doctor to see him, but the doctor merely gave him a prescription for antibiotics for a “sinus infection.” The Trzybinskis also learned that the children had been told that the Trzybinskis would adopt them, contrary to their instructions. (Am. Compl. ¶¶ 148-61.)

         On March 17, 2008, the Trzybinskis told Jurga categorically that they would not adopt the children and Jurga threatened them with being charged with “child abandonment” and an HA employee told them that if they did not attend a court hearing to withdraw their petition to adopt, they would be arrested at the airport. On March 19, 2008, the Trzybinskis left Poland but, contrary to Huminski's and Jurga's threats, they were not arrested at the airport. As soon as the Trzybinskis returned to the United States, Joe was examined and found to have pneumonia and extreme dehydration, and the doctor noted that he should have been treated in Poland. (Am. Compl. ¶¶ 165-84.)

         After they left, Polish psychologist Barbara Lapinska drafted a report on March 19, 2008 blaming the Trzybinskis for the failed adoption and deeming them unfit to adopt any child because of their “selfish” decision not to adopt. The report was communicated to the Polish Central Authority, thereby precluding them for adopting any children from Poland. They spent $25, 000-$28, 000 for an adoption which never occurred and Huminski refused to return the adoption fees. (Am. Compl. ¶¶ 186-98.)

         Patricia Descarage

         In 2005, Descarage and her husband adopted two children from Poland through HA. Huminski had them investigated afterward based upon unsupported allegations. On May 1, 2006, a report finally stated that the allegations against them were unsubstantiated. (Am. Compl. ¶¶ 354-58.)

         According to Poland's adoption rules, siblings of children adopted in foreign adoptions should have all attempts made to have them placed with their adopted siblings. In 2008, Descarage became aware through discussions with orphanage personnel that her children's siblings were becoming available for adoption, and HA was aware of this information. But she alleges that Huminski surreptitiously arranged to separate the children, falsified documents and arranged to have the children adopted by another family. Descarage alleges that Huminski was retaliating against her for Descarage having spoken out about HA's attempts to sabotage her original adoptions. Descarage indicates that she spent thousands of dollars in attempts to adopt the siblings and to correct HA's actions.[2] (Am. Compl. ¶¶ 359-68.)

         Procedural History

         Plaintiff originally filed this action in the United States District Court for the Eastern District of Pennsylvania on November 5, 2010. (ECF No. 1.) On February 10, 2011, an order was entered transferring the action to this Court (ECF No. 9) and the case was opened in this Court on February 14, 2011 (ECF No. 10).

         On May 6, 2011, Plaintiffs filed a First Amended Complaint (ECF No. 26). Count I alleges a claim of wrongful adoption on behalf of the Ausecs. Count II alleges a claim of fraudulent misrepresentation on behalf of the Ausecs and Trzybinskis. Count III alleges claims under RICO section 1962(c) on behalf of the Ausecs and Trzybinskis, and Count IV alleges claims under RICO section 1962(d). Count V alleges a claim of innocent misrepresentation on behalf of the Ausecs and Trzybinskis. Count VI alleges a claim of IIED on behalf of all Plaintiffs. Count VII alleges a claim of tortious interference with contractual expectancies on ...


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