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Elvira A. Dorsey, An Individual and As v. Donald D. Redman

May 4, 2011


The opinion of the court was delivered by: Opinion BY Judge Cohn Jubelirer

Argued: November 9, 2010


Elvira A. Dorsey (Dorsey), Administratrix of the Estate of Andre Leonti, Deceased (Estate), appeals from the December 16, 2009, Order of the Court of Common Pleas of Fayette County (trial court), which granted the Motion for Summary Judgment (Motion) filed by Donald D. Redman, the Fayette County Register of Wills (Register), and Western Surety Company (Surety) (collectively, Defendants) and denied Dorsey's Cross-Motion for Summary Judgment (Cross- Motion). The trial court granted summary judgment in favor of the Defendants, concluding that Register is protected by immunity pursuant to the act commonly known as the Political Subdivision Tort Claims Act (Tort Claims Act), 42 Pa. C.S. §§ 8541- 8564, and the Surety is not liable when there is no liability of the principal, the Register. At issue in this appeal is the interplay of Section 3172 of the Probate, Estates and Fiduciaries Code (PEF Code), 20 Pa. C.S. § 3172, which statutorily imposes liability on a register of wills to pay for damages that have accrued to any person when the register does not secure a bond that is required by law, and the governmental and official immunity sections under the Tort Claims Act pursuant to which the Register argues he is entitled to immunity.

Andre Leonti (Decedent), a resident of Fayette County, died on January 30, 2006. (Death Certificate at 1, R.R. at 109.) Soon thereafter, Cheryl L. Keefer (Keefer), filed a Petition with the Register for the Grant of Letters of Administration (Petition for Letters). (Petition for Letters at 1, R.R. at 151.) The

Petition for Letters listed heirs and personal assets of Decedent as "unknown" and stated there was no real estate. (Petition for Letters at 1, R.R. at 151.) Register refused to grant Letters to Keefer because she did not have Decedent's death certificate, was not next of kin, and, therefore, was not a person entitled to Letters, pursuant to Section 3155(b) of the PEF Code. 20 Pa. C.S. § 3155(b). (Trial Ct. Op. at 2, ¶ 2.)

Because Register refused to grant her Letters, Keefer, through an attorney, filed a Petition on February 1, 2006, to authorize Register to issue Letters of Administration to her without the necessity of producing a death certificate and further directing the hospital to release the remains of decedent for funeral and burial (Petition). (Petition at 1-3, R.R. at 152-54.) Keefer attached to this Petition a copy of a purported power of attorney allegedly executed by the Decedent to her on January 10, 2006. (Power of Attorney at 1-3, R.R. at 155-57.) Keefer represented in the Petition that she had been a friend of the Decedent for more than thirty years, that he was unmarried at the time of his death, had no children or relatives, and his parents had predeceased him. (Petition at 1-2, R.R. at 152-53.)

Keefer further stated that the Mon Valley Hospital would not release the body to her for burial because she was not a relative and it would only be released to her if she were appointed to handle Decedent's Estate. (Petition at 1, R.R. at 152.)

Keefer alleged that she desired to obtain the release of Decedent's remains to a funeral home and to have funeral and burial services. (Petition at 2, R.R. at 153.)

Keefer represented that Decedent's estate assets were needed to pay for funeral and burial costs and other financial obligations of the Estate. (Petition at 2, R.R. at 153.) No one contested the Petition and, on the same day the Petition was filed, February 1, 2006, the orphan's court issued an order authorizing and directing Register to issue Letters "without the necessity of requiring a death certificate," and further ordering and directing the hospital to release the Decedent's remains to Keefer for funeral and burial services (Keefer Order). (Keefer Order, R.R. at 158, 444.) In compliance with the Keefer Order, Register issued Letters to Keefer, but did not secure a bond from her. (Trial Ct. Op. at 2, ¶ 6.) Several months later, on April 25, 2006, Keefer filed with Register an Inventory of the Estate, indicating a total personal property value of $242,677.88. (Inventory at 1, R.R. 587.)

In May of 2006, Dorsey, a resident of Texas, alleged to be Decedent's niece, (Dorsey Dep. at 5, 33-35, R.R. at 161, 164), was informed of the Estate and her right to Estate assets as the alleged sole surviving heir of the Decedent. (Dorsey

Dep. at 13-16, 37-38, R.R. at 163, 165.) Dorsey petitioned for the grant of Letters D.B.N.*fn1 and for the removal of Keefer as Administratrix (Dorsey Petition). The orphan's court granted the Dorsey Petition, issued an order removing Keefer as Administratrix on February 28, 2007, and requiring Keefer to deliver to Dorsey the custody and possession of the Estate assets (Dorsey Order). (Dorsey Order, R.R. at 43, 148, 448.) The Dorsey Order also authorized and directed the Register to grant Letters to Dorsey upon presentation of an appropriate petition for the grant of Letters.

Keefer did not deliver the Estate assets to Dorsey, and Dorsey was unable to locate the Estate assets pursuant to her role as Administratrix D.B.N. Therefore, in addition to the Dorsey Order issued on February 28, 2007, Dorsey obtained another order from the orphan's court requiring Keefer to deliver the custody and possession of the Estate records and assets to Dorsey. (Orphan's Ct. Order, July 10, 2007, R.R. at 449-50.) As a result of Dorsey's efforts to enforce said orders, on October 26, 2007, the orphan's court issued an order holding Keefer in contempt of its earlier orders and further directing that a verdict be entered in favor of Dorsey and against Keefer in the amount of $192,769.19. (Orphan's Court Order, October 26, 2007, R.R. at 451-52.) The October 26, 2007, Order further stated that "By copy of this Court Order, [Dorsey] may reduce such verdict to judgment in any appropriate office, whether that is the Office of the Register of Wills, or the Prothonotary, or both." (Orphan's Ct. Order, October 26, 2007, R.R. at 451 (emphasis in original).) Therefore, on November 13, 2007, Dorsey filed praecipes for entry of judgment with the Fayette County Prothonotary and Register to enter said judgment against Keefer. (Praecipes for Entry of Judgment, R.R. at 605-13.)

Dorsey next filed a Complaint against Register and Surety, alleging that they are liable for the damages that have accrued to her as a result of the Register not securing a bond that Dorsey maintains was required by the PEF Code when he issued Letters to Keefer. At the conclusion of the pleadings, Register and Surety filed their Motion, alleging immunity from Section 3172 pursuant to the Tort Claims Act. (Motion at 5-7 ¶¶ 21-27,*fn2 R.R. at 97-99). Dorsey filed her Cross- Motion, alleging she was entitled to recover upon her verdict against Keefer that was reduced to judgment, and that Register was liable for this judgment since he did not secure a bond from Keefer when he granted Letters to her. (Cross-Motion at 1-2 ¶ 2, R.R. at 417.)

After the parties presented oral arguments, the trial court granted the Defendants' Motion, holding that Register was entitled to immunity under Section 8541 of the Tort Claims Act because the failure of a register of wills to secure a bond is not one of the enumerated exceptions to immunity set forth in Section 8542 of the Tort Claims Act, 42 Pa. C.S. § 8542, and no other exceptions applied. (Trial Ct. Op. at 3-4.) The trial court further concluded that Antonis v. Liberati, 821 A.2d666 (Pa. Cmwlth. 2003), in which this Court held a recorder of deeds to be immune from liability, was dispositive with regard to Register's entitlement to governmental immunity under Section 8541. (Trial Ct. Op. at 4-5.) The trial court additionally concluded that the defense of official immunity under Section 8546 of the Tort Claims Act, 42 Pa. C.S. § 8546, was applicable because "the Register's actions of February 1, 2006 in granting the Letters of Administration to Keefer were reasonably undertaken pursuant to the Order of [the orphan's court]. . . that same date." (Trial Ct. Op. at 5.) Finally, the trial court found the Surety was not liable because its liability is predicated on the liability of its principal, Register. (Trial Ct. Op. at 5.)

Dorsey now appeals to this Court,*fn3 contending that the trial court erred as a matter of law when it granted summary judgment in favor of Register pursuant to Sections 8541 and 8546 of the Tort Claims Act. Dorsey maintains that Section 3172 of the PEF Code applies, and she is entitled to recover damages from Register and Surety because Register granted Letters to Keefer without securing a bond. Specifically, Dorsey contends that Register is not entitled to governmental immunity pursuant to Section 8541 because, she argues, that immunity applies only to tortious conduct and does not apply in the case of a failure to fulfill duties as a public official under bond, as in contract or assumpsit. Dorsey further contends that the trial court erred when it applied Antonis on this issue as controlling precedent, rather than Commonwealth, to Use of Colonial Trust Co. of Reading v. Gregory, 261 Pa. 106, 104 A. 562 (1918). She further maintains that Register is not entitled to the defense of official immunity pursuant to Section 8546.

I. Section 3172 of the PEF Code

Section 3172 of the PEF Code provides:

If any register shall grant letters without having taken such bond as is required by law, he and his surety shall be liable to pay all damages which shall accrue to any person by reason thereof. Nothing herein stated shall be deemed to relieve the personal representative from liability which would otherwise be imposed upon him by law.

20 Pa. C.S. § 3172. Section 3172 is a statutory provision which holds a register of wills accountable for Pennsylvania's bonding requirements for estate administrators and provides a remedy for an estate's beneficiaries in the event a bond was not secured when "required by law." 20 Pa. C.S. § 3172.

Section 3172 and its similar predecessor statutes have been in effect since at least 1832, throughout the development of the common law doctrine of governmental immunity and before the legislative enactment of Section 8541.*fn4 Indeed, in Colonial Trust, the Pennsylvania Supreme Court held a register of wills who failed to secure a bond from a non-resident liable for ...

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