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  Process Error Dooms Action against Church

By John Flynn Rooney
Chicago Daily Law Bulletin
January 22, 2003

A woman who bore a child fathered by a local Catholic priest lost her attempt Wednesday to hold church officials liable for alleged sexual misconduct by the priest.

The 1st District Appellate Court said the plaintiff waived review of the merits of her appeal because she filed an amended complaint before perfecting her appeal. The appeals court panel upheld a trial court's ruling dismissing Lucyna Zawadzka's claims against the Catholic bishop of Chicago and Five Holy Martyrs Catholic Church.

"The underlying issue — whether a priest's employer is liable under the doctrine of respondeat superior for the sexual assault of a parishioner by the priest — is an interesting and sensitive issue, particularly given the recent, heightened attention to sexual misconduct by members of the clergy," Justice Warren D. Wolfson wrote for the three-judge panel. "Because Zawadzka waived our review of the merits of her appeal, we believe the posture of this case does not allow us to properly answer the questions posed by the trial court's dismissal."

Zawadzka filed the lawsuit in the Cook County Circuit Court during October 2001 against Rev. Walter Strus, a Polish citizen, and the other defendants.

Strus' answer contends that the sexual relationship between Strus and Zawadzka was consensual and denies that a sexual assault occurred. Strus is represented by Patricia C. Bobb.

The complaint asserted that sometime prior to Oct. 15, 1999, Strus, who was assigned at the time to Five Holy Martyrs, convinced Zawadzka to move from her family home in Poland to the United States. The priest arranged for Zawadzka's housing and employment when she arrived here.

Zawadzka became a parishioner at Five Holy Martyrs and sought Strus' advice about problems or concerns.

On Oct. 15, 1999, Strus visited Zawadzka at her home and forced her to have sex, according to the lawsuit. Zawadzka became pregnant, and when she told Strus about the pregnancy, he said he would arrange for an adoption through Catholic Charities.

When Zawadzka became unable to work because of her pregnancy, Strus provided her with living arrangements and money for living expenses, the decision said.

The child was born in July 2000, and at that time Zawadzka opted not to proceed with the adoption. In about October, Zawadzka sought assistance from the archdiocese and informed officials there about Strus' role.

When church officials confronted Strus about the allegations, he denied paternity and suggested that Zawadzka was involved romantically with another priest with the parish.

Strus submitted to DNA testing, the results of which confirmed that he is the child's father, the decision said.

Strus remains suspended from public ministry pending the outcome of the matter involving Zawadzka, said James C. Geoly, a lawyer representing the bishop and Five Holy Martyrs.

Zawadzka's lawsuit alleged negligence, intentional infliction of emotional distress, battery, invasion of privacy/false light, defamation per se and defamation per quod. She also maintained that the Catholic bishop and Five Holy Martyrs were directly negligent.

The allegations that were not resolved as part of the appeal decided Wednesday remain pending in the Circuit Court, said lawyers in the case.

The bishop and parish then moved to dismiss Zawadzka's claims against them under section 2-615 of the Code of Civil Procedure.

Late last April, Zawadzka's direct negligence claim against those two defendants was stricken with leave to amend. Her claims of vicarious liability based upon respondeat superior were dismissed with prejudice by Circuit Judge Philip L. Bronstein.

In early May, Zawadzka filed an amended complaint asserting that the bishop and parish engaged in direct negligence, but didn't raise mention of the claims based on respondeat superior. Later that month, Zawadzka filed her notice of appeal.

The panel noted that Zawadzka filed the amended complaint before she filed a notice of appeal. The opinion cited Foxcroft Townhome Owners Association v. Hoffman Rosner Corp., 96 Ill.2d 150 (1983), and Tabora v. Gottlieb Memorial Hospital, 279 Ill.App.3d 108 (1996), in deciding the waiver issue. "We find Zawadzka waived (forfeited) our review of the merits of her appeal," the panel said.

Justices Thomas E. Hoffman and Shelvin Louise Hall joined in the 10-page opinion. Lucyna Zawadzka v. The Catholic Bishop of Chicago, et al., No. 1-02-1600.

Geoly, a partner with Burke, Warren, MacKay & Serritella P.C., said the appeals court made the right call.

Zawadzka's attorney, John F. Winters Jr., a principal of Winters, Enright, Salzetta & O'Brien LLC, could not be reached for comment early Wednesday afternoon.

"At all times, we have tried address this entire matter in a concerned, pastoral way with all the parties involved and will continue to do so," said Jim Dwyer, a spokesman for the Archdiocese of Chicago.

 
 

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