Appeal from the Order of the Commonwealth Court dated 9/18/08 at No. 1937 CD 2007 affirming the order of the State Employees' Retirement Board dated 9/21/07 at No. 2004-21
The opinion of the court was delivered by: Mr. Justice Saylor
CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.
RE-SUBMITTED: November 22, 2010
This appeal involves the statutory immunity afforded to third parties who act on the instructions of an attorney-in-fact. More specifically, we consider the position of the State Employees' Retirement System Board that immunity is conferred even where the power of attorney is void or voidable.
Appellant Teresa Vine worked for the Commonwealth for 29 years and is a member of the State Employees' Retirement System ("SERS"). On January 24, 1998, she was involved in an automobile accident in Virginia and sustained severe injuries resulting in paraplegia. Two days later, on January 26, 1998, Appellant suffered a stroke that left her with right side weakness and global aphasia, a condition that rendered her unable to speak or comprehend. She did not respond to family members who visited her several weeks after the accident, and she has no memory of the time following the accident.*fn1
Four days after her stroke, on January 30, 1998, Appellant purportedly executed a power of attorney (the "POA"), making her then-husband, Robert Vine ("Robert"), her attorney-in-fact and giving him authority to, among other things, engage in retirement-plan transactions on her behalf. Appellant's signature on the POA consisted of an "x" marked on the appropriate line, accompanied by the notation, "her mark." A nurse at the hospital in Virginia signed as a witness, and the document was notarized. According to the testimony of Appellant's physician in Pennsylvania, who reviewed the medical records from her hospitalization in Virginia, at the time Appellant supposedly executed the POA she: was suffering from a traumatic brain injury; was intubated (meaning that a machine was breathing for her); was being treated with sedatives which affected her reasoning and judgment; and was unable to make important life decisions due to her aphasia. Appellant has now recovered mentally, but remains a paraplegic. See In re Account of Theresa M. Vine, SERS No. 2004-21, at 2-3 (Opinion of Hearing Examiner, Sept. 20, 2006) ("Proposed Report").*fn2
Appellant retired from state employment on February 13, 1998.*fn3 On February 23, 1998, Robert met with a SERS retirement counselor. The counselor, who knew that Appellant had been involved in an automobile accident but was unaware of Appellant's particular health condition, reviewed the POA and discussed various retirement options available to Appellant. Robert selected Retirement Option 4, which allowed him to withdraw an amount equal to Appellant's total accumulated deductions, rolling over the taxable contributions and receiving payment of Appellant's non-taxable contributions. Although the terms of the disability retirement option were explained to Robert, he did not select that option on Appellant's behalf. If he had done so, Appellant's monthly payments would have been greater, but her accumulated deductions would not have been available for Robert to withdraw. As to survivor benefits, Robert selected Option 2, which entitled him to receive the same monthly payment as Appellant if she predeceased him.*fn4
In 2003, Robert filed for divorce, at which time Appellant discovered that she had not been retired on disability. She therefore wrote to SERS, asking to change her election to disability retirement based on her permanent physical disability. SERS denied the request, noting that, while Appellant could select another survivor option in view of her divorce, she could not change to disability retirement. Appellant's request ultimately reached the SERS Board (the "Board"), which scheduled an administrative hearing before a hearing examiner. At the hearing, Appellant asserted that she was incapacitated at the time she allegedly placed an 'x' on the POA, thereby rendering the document invalid. In support of her allegation of incapacity, Appellant testified and also presented numerous medical records, a physician's deposition testimony interpreting those records, and testimony from a relative. In opposition, SERS adduced the testimony of three employees who had previously handled Appellant's claim.
The hearing examiner filed his proposed report, see supra note 2, reflecting a finding that Appellant was incapacitated at the time she allegedly signed the POA. He explained, in this regard, that an incapacitated person is "an adult whose ability to receive and evaluate information effectively and communicate decisions in any way is impaired to such a significant extent that he is partially or totally unable to manage his financial resources or to meet essential requirements for his physical health and safety." Proposed Report at 6 (quoting 20 Pa.C.S. §5501). In light of Appellant's incapacity, the examiner concluded that the POA was invalid, thereby rendering ineffective any retirement selection made by Robert. See id. at 7 (citing Wilhelm v. Wilhelm, 441 Pa. Super. 230, 238-40, 657 A.2d 34, 38-39 (1995) (holding that, if a power of attorney is executed when the principal lacks the capacity to sign such a document, in the sense that he cannot understand and appreciate the nature of his actions, it is void and may not be utilized by the purported agent to effectuate financial transactions)). That being the case, the hearing examiner stated that SERS must now return Appellant to the position she occupied prior to Robert's use of the invalid POA, thus allowing her to make her own retirement elections. He elaborated, however, that such relief should be conditioned on Appellant returning all withdrawals taken since her accident, so that SERS would not incur any liability as a result of its reliance on the POA. See id. at 8.
In taking exceptions to the proposed report, SERS did not challenge the hearing examiner's finding that Appellant lacked the capacity to execute a valid POA, or that the POA was, in fact, invalid. Rather, SERS asserted that Section 5608 of the Probate, Estates and Fiduciaries Code (the "Code"),*fn5 see 20 Pa.C.S. §5608, supplied it with immunity for good-faith reliance on a power of attorney.*fn6 SERS argued that it should not be put in a position where it must investigate the facts underlying a facially valid POA. SERS proffered that the imposition of such an investigatory duty would place it in an untenable position, as the undertaking of any inquiry into the circumstances of the POA's execution could cause it to risk incurring liability under Section 5608(a) of the Code, a provision that requires third parties to follow the instructions of an agent designated in a POA. See id. §5608(a). Finally, SERS noted its disagreement with the hearing examiner's suggestion that returning the parties to the status quo ante would not result in SERS suffering any liability, as granting such relief might cause administrative difficulties. See SERS' Brief on Exceptions to the Opinion of the Hearing Examiner at 4.
In a six-to-five decision, the Board declined to accept the proposed report and issued its own opinion instead. See In re Account of Teresa M. Vine, No. 2004-21 (SERS Board Sept. 21, 2007) ("Adjudication"). The Board observed, preliminarily, that retirement applications are contracts with SERS, which are generally binding and irrevocable. The Board noted that SERS was provided with a facially valid POA that designated Robert as Appellant's attorney-in-fact and authorized him to conduct retirement transactions on her behalf. In light of this circumstance, the Board stated:
We conclude that, regardless of the underlying facts, we do not have the authority or jurisdiction to reach the issue of whether or not as a matter of law involving the mental capacity and competency of Claimant, the POA is valid. Robert had the apparent authority to act as agent for Claimant in this matter, and thus his actions are binding.
Adjudication at 8 (footnote omitted); see also id. at 8 n.7 ("Because of our conclusion that we do not have the legal authority to grant relief on a challenge to action taken under a facially valid POA, we do not need to make fact findings regarding Claimant's mental or physical condition, capacity or competence in January or February 1998."). Thus, the Board considered the POA's facial validity to be unassailable and determined, accordingly, that Section 5608(b) prevented it from granting Appellant's request regardless of hardship or possible inequities, as that statutory provision immunized SERS from liability. See id. at 8. The Board did acknowledge that, as a general proposition, it retained the power to retroactively alter retirement benefits, and that it has considered doing so in prior cases where the retiree was alleged to have lacked the capacity to form a contract at the time he or she applied for benefits. It distinguished those cases, however, on the basis that the retiree was the individual who signed the application in person; thus, the Board stated that, in such circumstances, "SERS is a direct party to the contract involving pension benefits and probably can agree to release the other party (the member) from his or her putative contract obligations" based upon a finding of incapacity. Id. at 9.*fn7
The Commonwealth Court affirmed. See Vine v. SERS, 956 A.2d 1088 (Pa. Cmwlth. 2008). The court indicated that, under Pennsylvania common law, the POA and transactions undertaken pursuant to it were voidable. It placed substantial emphasis on the distinction between void and voidable transactions, developing that void acts have no significance and are nullities, whereas voidable acts are valid until annulled. See id. at 1094 (citing Der Hagopian v. Eskandarian, 396 Pa. 401, 404, 153
A.2d 897, 899 (1959)). The court found this distinction significant because here, a third party (SERS) became involved before an attempt at avoidance was made, and, according to the court, Pennsylvania's adoption of the Uniform Durable Power of Attorney Act (the "UDPAA") was intended to modify the common law to limit avoidance of the acts of an apparent agent under such circumstances. See id. at 1094-95.
The Commonwealth Court explained that this construction of the UDPAA is consistent with the modern trend among Pennsylvania statutes that seek to reduce risks for third parties who transact business in good faith with an agent or an apparent agent. See id. at 1095 (referencing the Uniform Commercial Code and the Uniform Partnership Act). Accordingly, the court suggested that the only avenue available to Appellant at the administrative level to nullify the retirement selections made by Robert was to demonstrate that SERS had "reasonable cause" not to comply with Robert's instructions made under his apparent authority, see 20 Pa.C.S. §5608(a), or that SERS did not act in good faith reliance on the POA, see id. §5608(b).*fn8 Because the Board found that neither condition was proven, and Appellant did not challenge these findings as unsupported by substantial evidence, the court deemed them binding, and, ultimately, fatal to Appellant's claim.*fn9
Senior Judge McCloskey concurred in the result, but wrote separately to address his concerns with the inadequacy of the review conducted by SERS and the Board with respect to the POA at issue. On this point, he stressed that SERS' own regulations provide that, when a member makes a retirement selection, she must ordinarily execute the application herself; if she is not mentally competent to do so, the application can only be executed by a court-appointed guardian. See 4 Pa. Code §249.7(e). By contrast, when a member is physically unable to file the application, anyone possessing a valid POA may file it. See id. Senior Judge McCloskey noted that, by its terms, Section 249.7(e) distinguishes between mental and physical incapacity, the former requiring a court-appointed guardian for execution of a retirement application. In light of this provision, and the manner in which the POA was signed -- with the mark of an "x" for a signature -- he found it "impossible . . . to believe" that the POA "would not raise a red flag and mandate closer scrutiny" by SERS employees or by the Board. Vine, 956 A.2d at 1099 (McCloskey, S.J., concurring). He concluded, however, that, as Appellant did not advance any argument predicated upon Section 249.7(e) before the hearing examiner or the Board, Appellant could not prevail based on that provision.
This Court granted further review to determine whether, as the Commonwealth Court held, Appellant could only obtain relief if she demonstrated that SERS employees either did not act in good faith, or had reasonable cause to question the POA's validity or Robert Vine's apparent authority. See Vine v. SERS, 600 Pa. 625, 969 A.2d 1175 (2009) (per curiam). As noted, the intermediate appellate tribunal emphasized the difference between void and voidable transactions, and concluded that actions taken pursuant to the POA were merely voidable, thus implicating the rights and duties given to third parties under Section 5608. In evaluating the court's reasoning, we must determine whether the void/voidable distinction is of any moment in circumstances such as these, and assess whether the court's understanding of Section 5608 was correct. These are questions of law subject to plenary review. See In re Erie Golf Course, ___ Pa. ___, ___, 992 A.2d 75, 85 (2010).
In seeking reversal, Appellant initially broadly challenges the validity of the POA, referencing Dexter v. Hall, 82 U.S. 9 (1872), in which the U.S. Supreme Court held that a POA taken from a person of unsound mind is void. In Dexter, the Court reasoned that it is "difficult to perceive how one incapable of understanding, and of acting in the ordinary affairs of life, can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions." Id. at 20. Appellant claims that, given the hearing examiner's finding that she was incapacitated at the time the "x" was placed on the POA, he properly deemed the POA to be void and appropriately concluded that her then-husband's retirement elections made pursuant to it were invalid and subject to modification.
Appellant also asserts that, whether the POA and the subsequent retirement elections are considered void, pursuant to Dexter, or merely voidable, pursuant to Der Hagopian (on which the Commonwealth Court relied), is not legally significant because, even if they are voidable, by demonstrating that she was incapacitated at the time of creation of the POA, Appellant should have been able to avoid the retirement elections made on her behalf. Indeed, she alleges that Der Hagopian, like Dexter and Wilhelm, supports her position because it makes mental competency the determining factor in whether a transaction can be avoided.*fn10 Appellant suggests, alternatively, that the equity-related principles elucidated in Der Hagopian are limited to scenarios where an innocent third party provides substantial consideration for a transaction, which is different from creating a permanent agency delegation through a durable power of attorney. Indeed, she posits, this case involves Appellant's right to disability benefits based upon 29 years of state service and her paraplegia; SERS, Appellant avers, is not an innocent third party victim, but rather, is an entity statutorily required to correct errors, see 71 Pa.C.S. §5954, and give Appellant something that she earned -- disability benefits. Appellant also concludes that the Commonwealth Court's decision leads to an absurd result: a POA can be created for an unconscious person, and that POA will vest apparent authority in whoever it names as the agent, to control that person and his or her property until the person discovers the fraud and puts the world on notice. See Brief for Appellant at 22 ("While we have found no Pennsylvania Supreme Court case directly on the point that a power of attorney must be executed by a conscious individual in order to create apparent authority[,] we respectfully submit that this is because of the long established and obvious nature of the proposition . . ..").
Lastly, Appellant avers that, in all events, the SERS counselor had reasonable cause to question the validity of the POA, as the counselor was on notice from Appellant's file that Appellant had functioned at a high level for 29 years and that she did not ordinarily sign her name with an "x." Appellant agrees with the Commonwealth Court concurrence that this should have raised a red flag, particularly as the SERS counselor was aware that Appellant was unable to attend the retirement conference because she had been in an automobile accident, and that her then-husband was waiving important disability benefits for her so that he could obtain survivorship benefits for himself.
The Board counters that, to construe Section 5608 as Appellant suggests would lead to an absurd result, as it would require every third party presented with a facially valid POA to seek the principal's ratification before acting. According to the Board, the third party would then find itself subject to limitless liability for failing to comply with the agent's instructions so long as it lacked reasonable cause not to comply. See 20 Pa.C.S. §5608(a). This construction would, in the Board's view, render Section 5608 meaningless. See Brief for Appellee at 18 ("Adopting Ms. Vine's position and declaring that all acts undertaken pursuant to a defective power are nullities which compel the third party to return the principal to the status quo ante requires the complete disregard of Section 560(b)'s statutory immunity.").
The Board develops that, under this Court's decision in Der Hagopian, a person's mental competence to conduct business transactions is presumed unless and until the person is adjudicated incompetent -- and Appellant was never adjudicated incompetent. Therefore, the Board argues, the Commonwealth Court correctly held that the retirement selections made by Robert were presumptively valid. In this respect, the Board indicates that the critical factor is not whether Appellant had the mental capacity to execute a valid POA, but whether Section 5608 supplied the Board with statutory immunity. If it did, the Board notes, then to surmount the presumption of validity attaching to Robert's actions, Appellant bore the burden of proving that SERS acted in bad faith or lacked reasonable cause to comply with his instructions. The Board concludes that the Commonwealth Court was right in determining that Section 5608 immunized it, as one of the Legislature's objectives in enacting this statute was to make it more difficult to nullify transactions accomplished pursuant to a POA by requiring the party seeking avoidance to show, not only incapacity, but that the third party did not properly rely upon a facially valid POA. See Brief for Appellee at 21.
The Board indicates that this is particularly so because Section 5608, by its terms, is not limited to POAs ratified by the principal or those that can be demonstrated to be valid after the fact. As Appellant failed to challenge the Board's findings to the effect that SERS acted in good faith and that it lacked reasonable cause not to comply with Robert's instructions, the Board maintains that Appellant is bound by those findings. Finally, regarding Appellant's claim that the distinction between void and voidable acts is unimportant, the Board characterizes this argument as an attempt to cloud the true issue by shifting the focus from SERS' good faith reliance upon the POA back to Appellant's capacity to execute a POA.
Initially, we acknowledge that one can reasonably question whether the SERS counselor exercised appropriate circumspection in accepting the POA as valid under the circumstances. Nevertheless, the Board expressly determined that the counselor acted in good faith and lacked reasonable cause not to follow Robert's instructions. As Appellant did not challenge these findings before the Commonwealth Court, she is bound by them for purposes of the present appeal. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal."). Hence, we proceed to the question of whether those findings immunize SERS from liability under Section 5608 of the Code notwithstanding the hearing examiner's finding of incapacity.
"Briefly, our task is to discern the intent of the Legislature, and, in doing so, we first look to the Act's plain language." Erie Golf Course, ___ Pa. at ___, 992 A.2d at 85. Here, Section 5608 facially applies only to situations where an "agent" gives instructions pursuant to a "power of attorney," see supra note 6; notably, there is no indication in the statutory text that it is intended to apply where a person who is not an agent, but purports to be one or erroneously believes he is one, provides instructions pursuant to a document that is not a valid power of attorney, but appears to be one. Still, the Board assumes that the General Assembly intended such circumstances to come within the scope of Section 5608. The Board thus -- at least by implication -- argues that the terms "power of attorney," and "agent," as employed in that provision, are broad enough to subsume occasions where the document purporting to be a power of attorney is invalid.
While this position is not unreasonable, it is ultimately unavailing for several reasons. First, and as noted, it does not align with the statute's text as well as a literal reading of the terms "agent" and "power of attorney." See, e.g., BLACK'S LAW DICTIONARY 26-27 (3d. pocket ed. 2006) (defining an "agent" as "[o]ne who is authorized to act for or in place of another" (emphasis added)); id. at 551 (defining a "power of attorney" as "[a]n instrument granting someone authority to act as agent or attorney-in-fact for the grantor" (emphasis added)).*fn11
Moreover, if the General Assembly had intended the broader application advocated by the Board, it could have indicated as much by specifying that Section 5608's scope extends to circumstances where the document in question has indicia of validity regardless of its actual validity, as the legislative bodies of some of our sister States have done. See, e.g., CAL. PROB. CODE §4303(a)(2) (West 2010) (immunizing persons who act in good faith reliance on powers of attorney where, inter alia, "[t]he power of attorney appears on its face to be valid."); 755 ILL. COMP. STAT. 45/2-8 (West 2007 & Cum. Supp. 2009) (protecting third parties who act "in good faith reliance on a copy of a document purporting to establish an agency"); WASH. REV. CODE ANN. §11.94.040(3)(d) (West 2010) (shielding persons who rely on a power of attorney accompanied by an affidavit of the agent stating, inter alia, that, to the best of the agent's knowledge, at the time the document was signed the principal was competent to execute it and was not under undue influence). Similarly, the Uniform Power of Attorney Act contains a section expressly allocating to the principal, rather than the third party, the risk that the power of attorney in question is forged or otherwise invalid. See UNIF. POWER OF ATTORNEY ACT §119. Our Legislature, however, has not adopted this provision, nor has it otherwise imposed such risk on principals, thus confirming that the statutory text was only intended to apply to actual agents and powers of attorney. Accord In re Estate of Davis, 632 N.E.2d 64, 65-66 (Ill. App. Ct. 1994) (explaining that, where a power of attorney is forged, no principal-agent relationship exists, and hence, a third party's good-faith reliance on an apparently valid power could not shield it from liability under the relevant statute immunizing third parties who act "in good faith reliance on a copy of the agency");*fn12 see also In re Baxter, 320 B.R. 30, 39 (Bankr. D.D.C. 2004) (holding that, where a power of attorney is forged, a deed of trust executed pursuant to it is ineffective; "[t]he person whose signature is forged is an innocent party, and ought not have the deed of trust given effect"). But see Villanueva v. Brown, 103 F.3d 1128, 1137 (3d Cir. 1997) (affirming the trial court's award of summary judgment to a third party who was unaware that the power of attorney in question was a forgery). See generally 1 Pa.C.S. §1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
Notably, as well, at common law, the risk of loss due to a putative agent's false dealing was only placed on the principal if the latter had acted negligently or was otherwise at fault in creating the circumstances that allowed the fraud to occur. Compare Appeal of Pa. R.R. Co., 86 Pa. (5 Norris) 80 (1878) (denying relief to the executrix of an estate who had entrusted certificates of stock with blank powers of attorney signed by the decedent to an individual who later used them in a fraudulent manner as collateral for a loan), with Robb v. Pa. Co. for Ins. on Lives & Granting Annuities, 186 Pa. 456, 40 A. 969 (1898) (granting relief against a bank to a depositor who kept a rubber stamp of his signature in a locked safe, where the safe was broken into and the stamp used to forge his signature on checks drawn on his account; the Court distinguished Pa. R.R. Co. on the basis that depositor had not acted negligently), and Fifth St. Bldg. & Loan Ass'n of Phila. v. Kornfeld, 315 Pa. 406, 172 A. 703 (1934) (denying relief to a third-party plaintiff where no act or omission on the part of the defendant corporation -- the purported principal -- was the proximate cause of the plaintiff's loss). Inasmuch as Section 5608 does not expressly abandon this common-law framework, it is assumed to have carried it forward. See United States v. Texas, 507 U.S. 529, 534, 113 S. Ct. 1631, 1634 (1993) (recognizing that the retention of common-law principles is presumed unless "a statutory purpose to the contrary is evident[; i]n order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law").
Additionally, although Section 5608 is not part of the UDPAA, the latter act contains an analogous provision protecting persons who rely upon powers of attorney without knowledge that the principal has become incapacitated in the post-execution timeframe. See 20 Pa.C.S. §5605(b) & cmt. Notably for present purposes, the General Assembly has adopted a comment drafted by the National Conference of Commissioners on Uniform State Laws, which clarifies the UDPAA's scope as follows:
In this and the following sections, it is assumed that the principal is competent when the power of attorney is signed. If this is not the case, nothing in this Act is intended to alter the result that would be reached under general principles of law.
20 Pa.C.S. §5604 cmt. 1; see 20 Pa.C.S., Ch. 56 (Jt. St. Gov't Comm'n Cmt.--1982). Although the comment is not directly relevant here, we believe similar treatment is implicated by the terms of Section 5608, particularly as powers of attorney are presumed durable unless specifically ...