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ADOPTION B.A.B. (12/23/87)

decided: December 23, 1987.

IN RE ADOPTION OF B.A.B., A MINOR CHILD. APPEAL OF MR. AND MRS. P., ADOPTIVE PARENTS


Appeal from Order of Superior Court of Pennsylvania of April 24, 1986 at No. 797 Pittsburgh 12985, reversing the Order of January 3, 1985, of Court of Common Pleas of Allegheny County, Orphans' Court Division, at No. 235 of 1983. Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Hutchinson, Former J., did not participate in the consideration or decision of this case. Larsen and Zappala, JJ., note their dissent.

Author: Flaherty

[ 517 Pa. Page 85]

OPINION OF THE COURT

The question now before us is the propriety of the orphans' court's sua sponte reduction of a fee charged for the performance of intermediary services in furtherance of an adoption. The orphans' court en banc unanimously held that the charges for services in connection with the adoption in this case were excessive, and thus, reduced the fee. A three-judge panel of Superior Court reversed, 352 Pa. Super. 444, 508 A.2d 556.

The pertinent facts are as follows:*fn1 the adoptive parents, who are residents of Allegheny County, learned through relatives of the possibility of adopting an infant to be born in Dauphin County. They secured for themselves the services of an attorney from Lebanon County and agreed to pay him $60 per hour for all services he performed regardless

[ 517 Pa. Page 86]

    of the ultimate success of the intended adoption.*fn2 The attorney performed normal intermediary services, e.g., meeting with the natural mother and her parents, arranging for payment of "lying in" expenses by the adoptive parents, arranging for pre-natal medical tests of the infant, receiving clothing for the infant from the adoptive parents, and physically transferring the infant at the hospital to the adoptive parents. In addition, he drafted the consents of the natural parents to the adoption,*fn3 the notice of hearing and the affidavit of service of notice of hearing to confirm the consents, and, of course, the report of intermediary. He also attended the hearing on the consents.

As the adoptive parents reside in Allegheny County, and the adoption proceeded there, the adoptive parents retained a second attorney from their own locale who prepared the original and amended report of intention to adopt and the petition for adoption, and who represented them at the adoption hearing. This second attorney charged no fee.

The intermediary travelled to Allegheny County from Lebanon County for his testimony at the hearing on the adoption petition. At that hearing it was learned that he had billed the adoptive parents a total of $3,160 for all his services to date. The orphans' court determined that this fee was excessive, and awarded a fee of $1200 for legal services plus reimbursement of out-of-pocket expenses for travel to the adoption hearing to testify as an intermediary.

[ 517 Pa. Page 87]

The disgruntled intermediary challenged the orphans' court's fee award as an abuse of discretion. After noting that an abuse of discretion will not be found "unless the record discloses that the judgment exercised was manifestly unreasonable or the result of partiality, prejudice, bias, or ill-will[,] Commonwealth v. Lane, 492 Pa. 544, 424 A.2d 1325 (1981);" and that "supervision of compensation is peculiarly within the discretion of the Orphans' Court[,] In Page 87} re Reed Estate, 462 Pa. 336, 341 A.2d 108 (1975); Wallis Estate, 421 Pa. 104, 218 A.2d 732 (1966)," Superior Court reversed. The basis for the reversal was Superior Court's determination that a contract to compensate an intermediary at an agreed upon hourly rate should not be disturbed where the time spent by the intermediary is not in dispute.

Superior Court's decision hinges upon its interpretation of the statutory requirement that intermediaries file a report of monies received, as implicitly approving fees for intermediary services. The pertinent statutory provision is as follows:

ยง 2533. Report of intermediary

(a) General rule. -- Within six months after filing the report of intention to adopt, the intermediary who or which arranged the adoption placement of any child under the age of 18 years shall make a written report under oath to the ...


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