Vine v. Commonwealth, State Employees' Retirement Board

Justice TODD,

dissenting.

I respectfully dissent because I cannot agree, as the majority holds, that SERS may not rest on Section 5608(b)’s “good faith reliance” immunity under the circumstances of this case. 20 Pa.C.S.A. § 5608(b). Rather, I conclude that this immunity provision applies in just this type of situation: where, in the absence of reasonable cause to question a power of attorney, and in good faith reliance on its legitimacy,1 a third party acts pursuant to a putative agent’s instruction. In such circumstances, I find that a third party, like SERS herein, is immune from liability for those acts under Section 5608(b). In my view, the majority’s narrow construction — that Section 5608(b) applies only where the power of attorney is factually valid— does not account for the operation of Section 5608 as a whole or within Chapter 56 (“Powers of Attorney”) of Title 20, and leads to unreasonable practical effects.

First, the majority rejects the contention that its interpretation of Section 5608(b) renders the immunity provision meaningless by asserting that the provision, for example, would still “appear” to apply to shield a third party in relying on an agent’s negligent or ill-informed decision making, see Majority Op. at 664-65 n. 13, 9 A.3d at 1160 n. 13 (“[T]here are circumstances where the statute would continue to apply *681notwithstanding a valid [power of attorney]. For example, it would appear to immunize SERS from liability where the SERS member claims that her attorney-in-fact failed to select the retirement option best suited to her needs.”), or from an agent’s self-dealing, id. (“More generally, [Section '5608] protects third parties in many circumstances where the principal contends that the agent acted in a manner designed to serve his own interests rather than those of the principal”). However, in my view, this construction does not comport with Section 5608(a).

Subsection (a) compels a third party’s compliance -with an agent’s instructions. 20 Pa.C.S.A. § 5608(a) (“Any person who is given instructions by an agent in accordance with the terms of a power of attorney shall comply with the instructions.”). Indeed, a third party is made hable for resulting damages where the party, absent reasonable cause, fails to comply with such instructions. Id. (“Any person who without reasonable cause fails to comply with those instructions shall be subject to civil liability for any damages resulting from noncompliance.”). I conclude subsection (a) and (b) are most naturally read in tandem, and as coextensive: subsection (a) imposes lability for noncompliance absent reasonable cause, and subsection (b) reheves a party of habihty where there is good faith reliance. Although “good faith relance” is not defined, “reasonable cause” is defined to “include, but not be limited to, a good faith report having been made by the third party to the local protective services agency regarding abuse, neglect, exploitation or abandonment pursuant to section 302 of the ... Older Adults Protective Services Act.”2 Id. Although the definition is not exhaustive, this “reasonable cause” exception evinces a legislative concern with a power of attor*682ney being used illicitly or coercively, not just that the agent might act in an ill-informed or incompetent manner. Accordingly, a more natural reading of subsection (b) provides corresponding immunity absent such indications, so that it protects a third party’s reliance on an apparently valid power of attorney.

This conclusion is buttressed by the text of Section 5608(b). That subsection refers both to an “agent” and to “powers of attorney,” and by this usage distinguishes between the two. As framed, Section 5608(b) refers to reliance on the power of attorney, not reliance on the agent: “Any person who acts in good faith reliance on a power of attorney shall incur no liability as a result of acting in accordance with the instructions of the agent.” Id. § 5608(b) (emphasis added). If the subsection read, “Any person who acts in good faith reliance on the instructions of an agent shall incur no liability as a result thereof,” the majority’s construction would have more force. But it does not.

Further complicating the majority’s approach is that it does not fully account for the operation of Section 5601. This section sets forth the general requirements of a power of attorney, including, in subsection (c), requiring the principal to sign a statutory notice which warns the principal of the broad powers conveyed:

Notice. — All powers of attorney shall include the following notice[3] in capital letters at the beginning of the power of attorney. The notice shall be signed by the principal.

*68320 Pa.C.S.A. § 5601(c). The subsection further provides that “[i]n the absence of a signed notice, upon a challenge to the authority of an agent to exercise a power under the power of attorney, the agent shall have the burden of demonstrating that the exercise of this authority is proper.” Id. Although the corollary is strongly implied, a comment to this section emphasizes that, where such a notice is provided, “the burden of demonstrating an agent’s impropriety in exercising a power falls to the person challenging such act.” Id. § 5601(c), 1998 Joint State Gov’t Comm’n Cmt.

Accordingly, at least where a Section 5601(c) notice is executed with the power of attorney as statutorily required,4 the power of attorney is presumptively valid, in that the burden is on the challenger to demonstrate the agent’s impropriety. Although the notice requirement in Section 5601(c) was added in 1999, after Section 5608 was enacted, this burden shifting nonetheless dovetails -with a conclusion that the legislature intended that a third party who is directed to act on a power of attorney may, in good faith, rely on its validity. While the majority rightly notes that Section 5601(c) was, *684according to its commentary, enacted to protect principals and sanction agents who operate under powers of attorney -without such notices, id. § 5601(c), 1998 Joint State Gov’t Comm’n Cmt., and that such notices could themselves be forged, Majority Opinion at 667-69, 9 A.3d at 1162-63, the statutory language remains: where the notice is provided, Section 5601(c) places the burden on third party challengers, which is consistent with my interpretation of Section 5608.

Further, I am not persuaded by the majority’s reliance on commentary to the Uniform Durable Power of Attorney Act (“UDPAA”), in which the drafters of that uniform law indicated their guiding assumption that a principal is competent when the power of attorney is signed and that, “[i]f this is not the case, nothing in [the UDPAA] is intended to alter the result that would be reached under general principles of law.” See Majority Opinion at 664, 9 A.3d at 1160 (quoting 20 Pa.C.S.A. § 5604, Uniform Law Comment, Section 1). The UDPAA was enacted in Pennsylvania in 1982 and codified at 20 Pa.C.S.A. §§ 5604, 5605, and 5606.5 However, as the majority notes, Section 5608 is not part of the UDPAA, and Section 5608 was added a decade later. Thus, Section 5608 is the more recent legislative expression. More critically, Section 5608 introduced into the statutory framework for powers of attorney the legal compulsion to comply with an agent’s instructions, an obligation that is absent from the UDPAA. The General Assembly may very well have concluded that, in order to impose this obligation and civil liability for noncompliance, legal immunity for acting on a facially compliant power of attorney was a necessary, and equitable, corollary.

Finally, in my view, the majority’s interpretation is impracticable. See 1 Pa.C.S.A. § 1922 (setting forth as a rule of statutory construction that “the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable”). Powers of attorney may empower an agent to engage in a broad range of activities on behalf of the principal, such as real property transactions, financial transac*685tions, and authorizing medical care. See 20 Pa.C.S.A. § 5602(a).6 Yet, in all of these endeavors, by narrowing the immunity provision to apply only where the power of attorney is in fact valid, the majority has imposed a substantial investigatory burden on the many and varied entities that receive instructions from a putative agent under a power of attorney: to avoid potential liability for following the agent’s instructions, a third party must, even where there is no indication that the power of attorney was defectively executed, first assure themselves that the principal was competent at execution and/or have the principal ratify the instructions. (Obviously, requiring the principal to ratify the agent’s instructions renders the power of attorney pointless.7) This is necessary even when the effort to do so is considered to be too oner*686ous — for practical business or any other reasons — because, as discussed, the statute also compels a third party to comply with the power of attorney. See id. § 5608(a). Thus, to avoid liability down the road, the majority’s interpretation effectively mandates such an investigation before a third party takes even the most routine actions pursuant to a power of attorney.8 To make matters worse, the third party is potentially liable for damages resulting from any delay in executing the agent’s instructions necessitated by such an investigation. Cf. id. (imposing civil liability for noncompliance). In short, the third party must investigate the pedigree of the power of attorney, must do so quickly, and may not opt out. I cannot conclude the legislature intended this unreasonable state of affairs. Indeed, I conclude that Section 5608(b) was intended specifically to avoid it.9

In this regard, the majority “demur[s] to any implication that interpreting the enactment to, in effect, leave undisturbed the common-law rule pertaining to invalid powers would be absurd or unreasonable.” Majority Opinion at 668, 9 A.3d at 1162. The majority, however, does not leave the common law rule undisturbed. I can find no suggestion that, at common law, a third party was compelled to act on an agent’s instructions, as Section 5608 requires. Rather, this Court has emphasized that, at common law, a third party acts on a power of attorney at its own risk. See Fierst v. Commonwealth Land *687Title Ins. Co., 499 Pa. 68, 451 A.2d 674 (1982) (noting that third parties “are bound at their own peril” to notice limitations on an agent’s authority, citing Moore v. Luzerne County, 262 Pa. 216, 105 A. 94 (1918)); Campbell v. Foster Home Ass’n, 163 Pa. 609, 632, 30 A. 222, 224 (1894) (same). Thus, the majority’s interpretation imports the common law framework with respect to the investigatory burdens on third parties, but within a statutory scheme that now compels a third party to act pursuant to the power of attorney.10 Again, I cannot conclude this is what the legislature intended.

For these reasons, as Appellant is bound by the Board’s finding that SERS acted in good faith and lacked reasonable cause not to follow the instructions of her putative agent and then-husband Robert Vine,11 I would find SERS was immune from liability under Section 5608(b), and on that basis would affirm the order of the Commonwealth Court.

. I agree, as the majority found, that Appellant has waived any challenge to the Board’s findings that SERS acted in good faith and lacked reasonable cause not to follow her then-husband's instructions. See Majority Opinion at 658-61, 9 A.3d at 1157-58.

. Section 302 of the Older Adults Protective Services Act provides, in pertinent part:

Any person having reasonable cause to believe that an older adult is in need of protective services may report such information to the agency which is the local provider of protective services.

35 P.S. § 10225.302(a). The declared policy behind this act is "that older adults who lack the capacity to protect themselves and are at imminent risk of abuse, neglect, exploitation or abandonment shall have access to and be provided with services necessary to protect their health, safety and welfare.” 35 P.S. § 10225.102.

. The notice must read:

NOTICE
The purpose of this power of attorney is to give the person you designate (your "agent") broad powers to handle your property, which may include powers to sell or otherwise dispose of any real or personal property without advance notice to you or approval by you.
This power of attorney does not impose a duty on your agent to exercise granted powers, but when powers are exercised, your agent must use due care to act for your benefit and in accordance with this power of attorney.
Your agent may exercise the powers given here throughout your lifetime, even after you become incapacitated, unless you expressly limit the duration *683of these powers or you revoke these powers or a court acting on your behalf terminates your agent’s authority.
Your agent must keep your funds separate from your agent's funds.
A court can take away the powers of your agent if it finds your agent is not acting properly.
The powers and duties of an agent under a power of attorney are explained more fully in 20 Pa.C.S. Ch. 56.
If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you.
I have read or had explained to me this notice and I understand its contents.
(Principal)
(Date)

20 Pa.C.S.A. § 5601(c).

. The power of attorney at issue in this case was purportedly executed in 1998, before the notice requirement was added as subsection (c) to Section 5601. See Act of Oct. 12, 1999, P.L. 422, No. 39, § 8.

. These are the only three sections in Chapter 56 of Title 20 which derive from the UDPAA.

. Section 5602(a) provides:

(a) Specification of powers. — A principal may, by inclusion of the language quoted in any of the following paragraphs or by inclusion of other language showing a similar intent on the part of the principal, empower an agent to do any or all of the following, each of which is defined in section 5603 (relating to implementation of power of attorney): (1) "To make limited gifts.” (2) "To create a trust for my benefit.” (3) "To make additions to an existing trust for my benefit.” (4) "To claim an elective share of the estate of my deceased spouse.” (5) "To disclaim any interest in property.” (6) "To renounce fiduciary positions.” (7) "To withdraw and receive the income or corpus of a trust.” (8) "To authorize my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care.” (9) “To authorize medical and surgical procedures.” (10) "To engage in real property transactions.” (11) "To engage in tangible personal property transactions.” (12) "To engage in stock, bond and other securities transactions.” (13) "To engage in commodity and option transactions.” (14) "To engage in banking and financial transactions.” (15) "To borrow money.” (16) "To enter safe deposit boxes.” (17) "To engage in insurance transactions." (18) "To engage in retirement plan transactions.” (19) "To handle interests in estates and trusts.” (20) "To pursue claims and litigation.” (21) "To receive government benefits.” (22) "To pursue tax matters.” (23) "To make an anatomical gift of all or part of my body."

20 Pa.C.S.A. § 5602(a).

. See Villanueva v. Brown, 103 F.3d 1128, 1136 (3d Cir.1997) ("If parties were required to verify with the principal each instruction given to them by an attorney-in-fact, the authority given to attorneys-in-fact would be eviscerated.”) (quoting Heine v. Newman, 856 F.Supp. 190, 195 (S.D.N.Y.1994)).

. Moreover, performing this investigation is complicated by the burden shifting in Section 5601(c), because, as described above, it appears the agent, if the Section 5601(c) notice has been duly executed, has no obligation to demonstrate his authority.

. I object to the majority's characterization of my analysis as a "policy-based rationale to support extending Section 5608(a) immunity to situations involving fraud.” Majority Opinion at 666, 9 A.3d at 1161. As detailed within, my analysis is based on the language of the statute, and related statutes, which I interpret using accepted statutory construction tools to discern the legislature's intent, including the avoidance of absurd results. My interpretation is not, therefore, "policy-based". Further, I no more seek to "extend[]” Section 5608(a)'s immunity provision by my interpretation than the majority seeks to restrict its operation by theirs. We both, in the end, pursue an interpretation most in accord with the statutory language and legislative intent as expressed in that language, albeit there is disagreement, to be sure, concerning that interpretation.

. It is not enough to argue that such compliance is only compelled under subsection (b) where the agency is actual, see Majority Opinion at 667 n. 16, 9 A.3d at 1161 n. 16 ("subsection (b) should also be understood as applying only to valid powers of attorney”), as the third party, under the scenario presently at issue, has no reasonable cause to question the validity of the power of attorney. Accordingly, lacking reasonable cause to be suspicious, the third party must nevertheless act as if all powers of attorney presented to it are valid.

. See supra note 1.