No. 80-1-63, Appeal from the Decree of the Court of Common Pleas of Allegheny County, Orphans' Court Division at No. 1924 of 1977, entered March 7, 1980.
James H. McLean, County Sol., James A. Esler, Asst. County Sol., Pittsburgh, for appellant.
Frank E. Coho, Pittsburgh, for Thomas J. Purcell.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Roberts, J., files an opinion in support of reversal in which Nix and Kauffman, JJ., join.
The Court being equally divided, the decree is affirmed. Each party pay own costs.
Opinion IN SUPPORT OF REVERSAL
I would reverse the decree which requires the County of Allegheny rather than the estate of Anna Engel to pay counsel fees incurred not only in the defense of Engel against County-instituted equitable proceedings but also in guardianship proceedings initiated on her behalf.
On March 29, 1977, the County filed a complaint in equity in the Court of Common Pleas of Allegheny County seeking to compel Engel to vacate what the County determined to be an uninhabitable and unsafe residence. The court of common pleas granted the County's request for a preliminary injunction and fixed a hearing date of April 4. At the scheduled hearing, however, Engel refused to retain an attorney. Acting on the belief that Engel was incompetent, the court appointed Thomas Purcell, Esq., to defend Engel in connection with the County's equitable proceedings.
After Purcell was appointed, he not only appeared on Engel's behalf to defend against the County's efforts to remove her but also later instituted proceedings in the Orphans' Court Division to declare Engel incompetent and appoint a guardian of her estate. The orphans' court granted the requested relief, naming the Keystone Bank as guardian. Purcell then submitted a bill of over $4400 to the County for all his services, including institution of the incompetency proceedings. The County refused payment, advising Purcell to obtain compensation from Engel's estate. Purcell nonetheless petitioned the orphans' court to direct the County to make the requested payment. Despite its continuing supervision of Engel's estate and Engel's guardian, the orphans' court approved Purcell's petition and directed the County, rather than the estate, to pay ...