N.W.M. v. Langenbach, P.

J-A17002-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
N.W.M. AND E.M., MINORS, : IN THE SUPERIOR COURT OF
THROUGH THEIR PARENTS AND : PENNSYLVANIA
NATURAL GUARDIANS, J.M., N.M., :
AND J.A.M. :
:
Appellant :
:
:
v. : No. 1532 EDA 2020
:
:
PATRICE LANGENBACH AND :
DEFENDER ASSOCIATION OF :
PHILADELPHIA :
Appeal from the Order Entered July 8, 2020
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 200300399
BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*
CONCURRING/DISSENTING MEMORANDUM BY PELLEGRINI, J.:
FILED FEBRUARY 1, 2022
I agree with the majority’s affirmance of the trial court’s dismissal of the
action filed by N.W.M. and E.M., both minors, through their mother, J.L.M.,
their father, N.M., and their grandmother, J.A.M., for legal malpractice, as well
as parents’ and grandmother’s claim for intentional infliction of emotional
distress against Patrice Lagenbach while acting as N.W.M.’s and E.M.’s
guardian ad litem. However, I would also affirm the trial court’s main holding
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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that Ms. Langenbach, as a guardian ad litem, is immune from suit under the
doctrine of judicial immunity.
The Latin phrase “ad litem” means “for the purposes of the legal action
only, which suggests that a person appointed to serve as a guardian ad litem
is appointed to perform a very specific task in a very specific context.” Ad
Litem, BLACK’S LAW DICTIONARY (6th ed. 1990). Ms. Langenbach was
appointed pursuant to 42 Pa.C.S. § 6311 which requires the mandatory
appointment of a guardian ad litem to “represent the legal interests and the
best interests of the child” in all dependency matters. The Rules of Juvenile
Court Procedure also provide for the appointment of a guardian ad litem in
dependency proceedings. Pa.R.J.C.P. 1151. Under those provisions, unlike
the guardian of the person or an attorney appointed to represent the child,
the guardian ad litem does not have the authority to act for the child nor does
he or she have other tasks outside the context of the proceeding; the guardian
ad litem is tasked to make his or her own decisions about the best interests
of the child and to report those conclusions to the court who makes the
ultimate determination as to what is in the best interests of the child and to
aid the court in making a decision. In this case, it was the juvenile court judge
who was ultimately responsible for determining what was in the best interests
of the children that was the direct cause of the purported harms for which the
plaintiffs are seeking damages against Ms. Langenbach, the guardian ad litem.
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The majority does not address whether the guardian ad litem is entitled
to judicial immunity because it finds that as an “error correcting” court, it is
not within our ken to address this issue presumably because the Supreme
Court has to decide that issue in the first instance. I disagree with the
majority’s position, because while we may be an error-correcting court, we
are not a potted plant. When questions are raised that are central to the
resolution of an appeal, including whether a principle applied in other cases
should be applied or extended to the case before us, it is our duty to decide
the question before us even when Supreme Court has not squarely addressed
the issue. Ultimately, if we “error-correct” too much or too little or just
enough, our Supreme Court will take the appeal, correct our ways if need be,
and make the final policy decision on that issue. See, e.g., Durham v.
McElynn, 772 A.2d 68, 70 (Pa. 2001) (affirming our decision that extended
official immunity to assistant district attorneys).
Further illustrative of that point is that this court and the Commonwealth
Court have addressed many times in the first instance whether judicial
immunity and quasi-judicial immunity (administrative agency immunity) apply
to certain individual officials carrying out or performing judicial or quasi-
judicial functions. For example, in Feingold v Hill, 521 A.2d 33 (Pa. Super.
1987), we held that even though there was no Pennsylvania case law
addressing whether a law clerk receives the benefit of his or her judge’s
judicial immunity, he or she was entitled to immunity. See also Clodgo by
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Clodgo v. Bowman, 601 A.2d 342 (Pa. Super. 1992) (judicial immunity
insulated a court-appointed medical expert witness from liability premised
upon malpractice); Panitz v. Behrend, 632 A.2d 562 (Pa. Super. 1993)
(applying testimonial immunity to expert witnesses); Logan v. Lillie, 728
A.2d 995, 998 (Pa. Cmwlth. 1999) (immunity applied to a child custody
conference officer who, pursuant to the Pennsylvania Rules of Civil
Procedures, conducted a child custody settlement conference and made
recommendations to a judge on whether to suspend a father’s custody over a
child); Reuben v. O'Brien, 496 A.2d 913 (Pa. Cmwlth. 1985) (judicial
immunity extended to township constable whose actions were taken at
direction of district judge); Myers v. Dept. of Labor and Indus., 458 A.2d
235 (Pa. Super. 1983) (holding that a workers’ compensation referee was
acting as a quasi-judicial officer and was absolutely immune from liability for
his statutorily-assigned tasks); Urbano v. Meneses, 431 A.2d 308 (Pa.
Super. 1981) (holding that zoning board members, when ruling on an
individual application for a zoning permit, were acting in a quasi-judicial
capacity and were entitled to quasi-judicial immunity); Doe v. Wyoming
Valley Health Care Sys., Inc., 987 A.2d 758 (Pa. Super. 2009) (concluding
that judicial immunity applied to a witness who testified at a National Labor
Relations Board employment hearing).
As to whether a guardian ad litem is entitled to judicial immunity, for
the reasons set forth in the thorough and well-reasoned opinion of Honorable
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Abbe Fletman of the Court of Common Pleas of Philadelphia County, I would
hold that a guardian ad litem is immune from suit under the doctrine of judicial
immunity.
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