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Gibbs v. Ernst

Supreme Court of Pennsylvania

April 5, 1994, ARGUED ; September 13, 1994, DECIDED

No. 26 Eastern District Appeal Docket 1993, No. 61 Eastern District Appeal Docket 1993

Opinion

 [**884]   [*197]  OPINION

MR. JUSTICE MONTEMURO

This is an appeal by Concern Professional Services Children and Youth; Concern's Director, Paul Ernst; Concern Adoption Specialist, Marsha S. Hiester (hereinafter collectively  [*198]  Concern); and Northampton County Children and Youth; its Executive Director, R. Nancy Haley; and its Caseworker, Brenda Messa (hereinafter collectively Children and Youth) from an Order of the Commonwealth Court reversing the trial court's grant of demurrers to counts of Wrongful Adoption and Negligent Placement of Adoptive Child in the complaint filed by appellees Frank A. and Jayne Gibbs, and Michael J. Gibbs.

Appellees initiated this action in the Court of Common Pleas of Bucks County against Concern and Children and Youth arising out of the adoption of Michael J. Gibbs on October 21, 1985. Children [***3]  and Youth is an agency of the Commonwealth of Pennsylvania and, pursuant to law, is responsible for placing children who are wards of the Commonwealth with agencies for the purposes of adoption. Concern is a private child placement agency, licensed by the Commonwealth.

The sole issue presented before this Court is whether the law of the Commonwealth recognizes as causes of action Wrongful Adoption and Negligent Placement of Adoptive Child. For the reasons set forth below, we affirm in part the decision of the Commonwealth Court and hold that traditional common law causes of action sounding in fraud and negligence apply in the adoption context.

The Complaint alleges the following facts: in early 1983, appellees Jayne and Frank Gibbs, who were already foster parents, inquired of Concern about the availability of a healthy Caucasian infant for adoption, (Complaint at P 10) and were informed that there was a two year waiting list for healthy Caucasian infants. Appellees were actively encouraged by agency representatives to apply for the adoption of an older child, (Complaint at P 11) and were told that it would be easier to adopt a "hard to adopt due to age" child, and that if the child [***4]  had been physically or sexually abused, Concern would disclose fully the history of these occurrences. (Complaint at P 12). Appellees were invited to look through a book containing photographs of older children available for adoption, along with brief positive descriptions of the children. (Complaint at P 13).

 [*199]  In May of 1983, appellees submitted a dual application for adoption of a healthy Caucasian infant and a "hard to adopt due to age" child. (Complaint at P 14). After a home-study by Marsha Hiester, Concern's adoption specialist, appellees reviewed the book of waiting children approximately twice a month at Concern's offices. On each occasion they completed a form for the child they wanted to adopt, and on each occasion they specifically requested a child who was "hard to place due to age," but who had no history of sexual or physical abuse or any mental or emotional problems. (Complaint at P 17).

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538 Pa. 193 *; 647 A.2d 882 **; 1994 Pa. LEXIS 418 ***

FRANK A. GIBBS, JAYNE C. GIBBS and MICHAEL GIBBS, a Minor v. PAUL ERNST, MARSHA A. HIESTER, CONCERN PROFESSIONAL SERVICES FOR CHILDREN and R. NANCY HALEY, BRENDA MESSA, NORTHAMPTON COUNTY CHILDREN AND YOUTH DIVISION, APPEAL OF: CONCERN PROFESSIONAL SERVICES FOR CHILDREN AND YOUTH, PAUL ERNST AND MARSHA S. HIESTER, AT NO. 26 EASTERN DISTRICT APPEAL DOCKET 1993; FRANK A. GIBBS, JAYNE C. GIBBS AND MICHAEL J. GIBBS, A Minor v. PAUL ERNST, MARSHA A. HIESTER, CONCERN PROFESSIONAL SERVICES FOR CHILDREN AND YOUTH AND R. NANCY HALEY, BRENDA MESSA, NORTHAMPTON COUNTY CHILDREN & YOUTH DIVISION, APPEAL OF: NORTHAMPTON COUNTY CHILDREN AND YOUTH, R. NANCY HALEY AND BRENDA MESSA, AT NO. 61 EASTERN DISTRICT APPEAL DOCKET 1993

Prior History:  [***1]  Appeal from the Order of Commonwealth Court entered on August 20, 1992 at Nos 1363, 1364, 1365 & 1366 C.D. 1991 reversing and affirming in part the Order of January 7 and January 8, 1991 in the Court of Common Pleas, Civil Division Bucks County, No. 90-03066-19-2. 150 Pa. Commw. 154, 615 A.2d 851 (1992).

JUDGE(S) BELOW: Hon. Susan Scott Devlin (C.C.P); Craig, PJ., Doyle, Colins, Palladino, McGinley, Smith & Kelley, JJ. (Cmwlth.)

JUDGE(S) BELOW: Hon. Susan Devlin Scott (C.C.P.); Craig, PJ., Doyle, Colins, Palladino, McGinley, Smith & Kelley, JJ. (Cmwlth.)

CORE TERMS

adoption agency, intermediaries, adoptive parent, cause of action, medical history, placement, negligent misrepresentation, intentional misrepresentation, disclose, child adoption, common law, agencies, foster, prospective parent, duty to disclose, confidence, common pleas, adoptee, common law cause, Adoption Act, misrepresentation, sexual, duty to investigate, adoption process, proceed to trial, non-disclosure, foreseeable, adoptions, disclose information, undue burden

Civil Procedure, Appeals, Standards of Review, General Overview, Criminal Law & Procedure, Preliminary Proceedings, Entry of Pleas, Family Law, Adoption, Adoption Procedures, Torts, Negligence, Business Torts, Fraud & Misrepresentation, Disclosures, Adoption Agencies, Negligent Misrepresentation, Elements, Duty, Affirmative Duty to Act, Failure to Act, Elements