*1 reasons, knowingly he will not violate For these [and] Petition of Victor act, any provision any of this or of law P. Stabile to set aside the nomi- substitute regulating limiting and expenses, election hereby nation certificate of Barr Robert practices and in con- prohibiting corrupt dismissed and denied. Similarly,
nection therewith....” Section Code, 981.1 of Election added Sec- ORDER 18, 1985, 5,
tion 6 of the of April Act P.L. NOW, day AND this 2941.1, September, 15th provides 25 P.S. that each candi- 2008, P. Victor Stabile’s Petition to Set date shall file an affidavit awith substitut- Aside the inter ed nomination Substitute Nomination Certifi- stating, certificate alia, hereby “the cate of Barr name the office for which he Robert Dismissed consents candidate that he as Party [and] the Libertarian and the knowingly any provision will not violate Party Pennsylvania, Libertarian act, this regulating law limit- with respect Denied to all Respondents. ing prohibiting election cor- expenses Chief The Clerk is directed to forward rupt practices there- connection copy of this Secretary order to ” .... Commonwealth; Secretary Both being Etzel and Barr consented to Commonwealth is directed to include on President, candidates for com- and neither the ballot for the 2008 General Election knowing violation, mitted fully each the name of Bob Barr as the Libertarian complied with rigors of the Election Party candidate for Unit- President in effectuating Code the withdrawal and States; ed Victor P. Stabile ordered to Further, substitution at issue. Etzel was costs; all pay shall be testify hearing not called at the in this responsible attorney’s for their own fees. matter and no there was direct evidence presented as to what Etzel did or did
desire. She consented to run as Par-
ty’s Pennsylvania President, candidate for step
and to aside when called to do inso Party’s
favor of the agreed- Libertarian
upon national candidate once selected.
Had Party the Libertarian decided to candidate,
make Etzel the national Etzel VINE, Teresa M. may very accepted well have the nomina- v. presented tion. The evidence convince the Court otherwise. The Court RETIREMENT STATE EMPLOYEES’ finds misrepresentation part no on the BOARD, Respondent. Etzel, Party. Barr or the The Court finds Pennsylvania. Commonwealth Court of part no fraud of either candidate or they the Party as never to sub- intended Argued April 2008. Pennsylvania’s process. vert election Sept. Decided 2008. Party simply took reasonable action abide the Election Code while further-
ing legitimate producing interest represent
nominee best suited to the Lib-
ertarian platform presi- the Libertarian
dential candidate. *2 West, petition- Harrisburg, J.
James er. Jr., Harrisburg, for Darigo, A.
Salvatore respondent. LEADBETTER, later,
BEFORE: President Two days January SIMPSON, Judge, and Judge, and Petitioner suffered serious stroke which McCLOSKEY, directly was also related to the Judge. Senior accident.
This stroke left Petitioner right side *3 and a global aphasia, weakness condition Judge OPINION BY SIMPSON. that rendered her to speak unable or com- In petition this for review from an order prehend.1 of the State Employees’ Retirement Board Nonetheless, power for (Board), we are confronted with a former January Petitioner was executed on member of the Employees’ Retire- 1998,rendering Petitioner’s at the husband (SERS) System who, later, ment years time, Vine, attorney-in-fact. Robert as her change seeks to the retirement elections husband received specific Petitioner’s by attorney-in-fact during made her her authority to make decisions for medical temporary incapacity. mental The novel treatment, medication, pain withholding of issues before us validity involve the procedures consent for and removal from elections the ability and of a member to nursing facilities, medical or and to exe- later avoid them. cute of health personnel. releases care (Petition- In particular, Teresa M. Vine addition, granted Petitioner’s husband was er) seeks review of an denying order her general powers all to conduct business and request to annuity behalf, void the withdrawal make decisions on in- Petitioner’s benefit) (early retirement cluding election the enumerated to made make gifts by time, engage her her and to plan husband retirement Notably, through transactions. the document also attorney, and to elect a provided, Attorney “This disability Power annuity shall retroactive to the effec- disability not be affected my tive date of her retirement. behalf, I including the event that become I. Background Factual incompetent my to handle affairs.” Re- (R.R.) produced Record at 225a. Petitioner became a member SERS in respect to signature, With Petitioner’s 1969, when began employment she simply there was an “x” marked on the Department of General appropriate line top surrounded on the and 24, 1998, January Services. On after 29 by the reg- sides notation “Her mark.” A service, years of state in- Petitioner was istered nurse at the University Hospital volved in a serious motor vehicle accident witness, signed aas and the Virginia. hospitalized She was at the was notarized a Common- University Virginia Hospital. Virginia notary public. wealth of multiple suffered fractured and ribs bro- ken leg bones in her back and February 23,1998, as a result days On several after injuries of the accident. ultimately ended, These employment Petition- in paraplegia. resulted er’s husband met with Thorpe, Deborah "aphasia” hearing organs; 1. The condition is defined as to it due the loss impairment ability ability "[t]he loss or interpret one's brain of its the information ears, express thoughts eyes and ideas means of received from the and to send (or speech, writing, signs gestures); directing impulses organs in- out to the Schmidt, understanding speech, writing, speech, writing, volved in etc.” J.E. and/or M.D., sign language. aphasia Attorneys’ Dictionary The condition of Medicine (Matthew Co., not due to a defect in mechanical the struc- Word Finder A-475 & Bender 1998); (R.R.) speech organs, eyes, Reproduced tures of the or the Record at 255a. that her husband unaware Petitioner was While Ms. retirement counselor. SERS disability option. retirement declined that Petitioner Thorpe was aware accident, in a motor vehicle involved been Background Procedural II. particu- not aware of Petitioner’s she was letter October, Petitioner sent Petitioner’s husband lar health situation. change her retire- requesting SERS with the provided Thorpe Ms. disability retirement ment election placed attorney, which she reviewed physical dis- permanent upon based As copy in the file. accident. from the 1998 ability resulting face, valid on its Ms. appeared was unable replied that Petitioner SERS re- began discussing various Thorpe *4 disability retire- change to her election husband. options with Petitioner’s tirement ment.4 elected to withdraw Petitioner’s husband Board, appeal Upon an eventual equal to Petitioner’s total accu- an amount an adminis- hearing examiner conducted 4,2 Option and mulated deductions under hearing hearing. exam- Before trative 2. Un- Option he further selected Survivor iner, an affidavit presented Petitioner 2, paid Option der the survivor Survivor in support of medical records numerous monthly payment as the SERS same incapacitated argument that she was her prior to the death. Peti- member received mark placed her allegedly at time she the dis- tioner’s husband declined elect attorney. Petitioner also power of on the op- this ability option. retirement Under sister, testimony of her Deb- presented the tion, Petitioner’s deductions accumulated Russo, testimony deposition orah and the for with- would not have been available present- Norman Haueisen. SERS of Dr. drawal, monthly her benefit would but employ- testimony of three different ed the greater.3 have been ees, claim handled Petitioner’s all whom Thereafter, hearing at various times. later, 1998, August, Several months findings and a recommen- issued examiner Petitioner and her husband moved opinion, In his in favor of Petitioner. dation point At that became aware Georgia. she Peti- concluded that hearing examiner receiving that she was retirement benefits. at the time she incapacitated tioner was At point R.R. at 164a. some she recov- allegedly a mark on placed inability speak from her and com- ered rendering hearing The attorney, it void. 155a; Hearing Id. at Examiner prehend. that Petition- further concluded examiner 19, Finding No. R.R. at Op., Proposed to make retire- unable er’s husband was 428a. The behalf. ment elections on Petitioner’s husband that Peti- August Petitioner’s recommended hearing examiner time, disability retire- to elect request At that filed for divorce. tioner’s acci- to the date of her elec- retroactive her husband’s retirement ment learned of time, granted. that dent Prior to tion on her behalf. years at 25 of service totaled 3. Since Petitioner deductions
2.The accumulated accident, no differ- there were the time of her $47,226.96. over husband rolled Petitioner’s coverage available care ences in the health contributions, approximately taxable options. under of these her $42,000.00, conse- adverse tax to avoid lump-sum payment, quences. He received change to could that Petitioner 4. SERS noted $5,000.00, non-taxable approximately but option due to divorce another retirement contributions. entirely ato change election could not disability retirement. Board,5 however, A sharply divided re- that there were no facts or circum- jected the hearing recommendation of the stances known to SERS would have Instead, examiner. majority Board prevented it relying from on the issued its own opinion denying and order faith. Op. Board at request. rendering Petitioner’s 7; Finding of Fact No. R.R. 468a. opinion, the majority Board noted that Accordingly, majority the Board con- SERS is a creature of statute and its unequivocally cluded that SERS acted only members have rights recog- those properly in providing retirement counsel- nized Employees’ Retirement ing (Code).6 5907(f) Code Citing 71 Pa.C.S. accepting and processing the retirement (k), majority the Board noted that also application. majority The Board noted persons acting legal representatives presented facially that SERS was with a may apply early members retire- attorney, valid specifically which or disability ment benefits on the mem- plan authorized retirement transactions. Further, ber’s behalf. citing 20 Pa.C.S. also specifically em- (relating party liability to third *5 and powered making gifts, any gift thus below), immunity, quoted length at in aspect the survivor benefit election was majority Board persons noted that who fail stated, majority authorized. The Board comply with an agent’s instructions “Our review of the record reveals that without reasonable civilly cause are hable there was no cause reasonable for SERS for damages and that act persons who comply to not attorney-in-fact’s] [the with good faith on power reliance of attorney regarding instructions [Petitioner’s] SERS are from liability immune for the results of 7; benefits.” atOp. Board R.R. at 465a. their actions. Finally, majority the Board concluded majority The Board concluded that Peti- it jurisdiction that lacked to decide wheth- tioner failed to that power establish er Petitioner lacked mental attorney was not executed accordance power attorney whether the was void. Pennsylvania Virginia or law. It also Rather, concluded that Petitioner failed to estab- her, apparent authority to act for and his duty lish that third have to inves- parties. actions bound the Pursuant to 20 tigate principal’s capacity. 5608(b) (any person Pa.C.S. who acts in Important for purposes, current power faith rebanee of attorney majority Board declined to any make find- shall liability acting incur no for in accor- ings regarding phys- Petitioner’s mental or dance agent), with instructions of condition, ical competence or majority grant- Board felt restrained from January February, Op. 1998. Board any ing change annuity type relief or or 7; Instead, n.8 R.R. at 466a. it made payment plan. new findings regarding the actions of essence, SERS. it found petition that SERS’ Petitioner thereafter filed a employees knew Petitioner’s car acci- scope review with this Court. Our of re- dent but did not have information view is limited determining whether an regarding status, committed, condition health error of law was whether sub- 5. reject §§ The Board six five voted Peti- 6. 71 Pa.C.S. 5105-5956. appeal. dissenting tioner’s noted, votes were dissenting opinion but no was ren- dered.
1093
is intended to alter the
necessary
nothing in this Act
supports the
stantial evidence
fact,
gener-
under
findings
or whether constitutional
be reached
result that would
v.
rights
Hence,
violated.
have been
Petitioner
al
of law.”
principles
Hoffman
Bd.,
Ret.
(Pa.Cmwlth.1999).
quent
apparent
avoidance of the acts of an
agent. These conclusions are consistent
Petitioner’s
construction
the statute
with the weight
contemporary authority.
controlling
liability
third
an
agency
5608,
§
relationship, 20 Pa.C.S.
A.
Law
an
leads to
absurd result
in which no
Pennsylvania,
compe
In
mental
comply
would
agent’s
an
presumed,
tence to do business is
principal’s
instructions without the
ratifi-
him
burden lies on
who denies it. Der
Also,
cation.
construction
Eskandarian,
Hagopian v.
396 Pa.
inequitable
creates
situation
trans-
(1959),
denied,
1095 Act,10 loss Partnership partner’s Uniform not disabled. competent were 5604(b). automatically dissolve not § 20 Pa.C.S. part- terminate fellow partnership times, was amended several statute § authority. 15 Pa.C.S. 8353. ners’ See which added including a 1992 amendment following provision: sum, Pennsylvania transac In (a) party liability. Any per- Third — not person of a by or on behalf tions given instructions an son who is presumed val incompetent are adjudicated in accordance with the terms circumstances, transac id. certain comply with the shall avoided, circum but in other tions be Any who without person instructions. stances, knowledge parties third without comply with reasonable cause to fails protected, are loss of person’s subject to be those instructions shall may not be avoided. transactions and the resulting damages liability civil for noncompliance. cause Reasonable from case, adju- never In this Petitioner was include, shall but under this subsection Therefore, trans- incompetent. dicated an to, limited good report faith presumed are valid. actions on her behalf having made third been presumption, Petitioner To overcome that re- protective agency the local services incompetent prove that she was needed abuse, exploitation garding neglect, addition, Petitioner needed at the time. section pursuant abandonment 802 deal- statute overcome (P.L. 881, the act of November 1987 She with durable ing 79), No. Pro- known the Older Adults by proving so that SERS did could do tective Services Act. faith, or lacked good that SERS act (b) immunity. Any Third — in- comply with the reasonable cause person good who acts in reliance faith attorney-in-fact. See structions of on a shall incur no 5602(b), §§ 5608. Pa.C.S. liability acting as a result in accor- agent. dance with the instructions of the fact-finder. The Board is added). (emphasis 20 Pa.C.S. This evi Questions resolving conflicts in the provision “designed encourage new was dence, evidentiary credibility and witness to follow the instructions the exclusive discretion weight are within be relieved of Here, the Board of the Board. Hoffman. liability doing so.” 20 Pa.C.S. faith reli acted found that SERS *8 Jt. St. Gov’t Comment—1992. Comm. attorney valid on its ance on a of that there was The Board also found reduce face. Pennsylvania
Other statutes to refuse cause for SERS transact busi- no reasonable risks for who Thus, of Petitioner’s comply with the instructions agent. an ness in faith with Further, de the Board attorney-in-fact. Pennsylvania’s of version of a section ap modi- termined that the Uniform Commercial Code was does not authority. As Petitioner parent when a customer protect fied to banks unsup challenge these determinations not have capacity but the bank does loses evidence, they are ported substantial knowledge adjudication of of in- actual an they require resolution binding, Similar- § 4405. competency. 13 Pa.C.S. County Petitioner. Westmoreland Pennsylvania’s version of the ly, under §§ 10. 15 Pa.C.S. 8301-8365. (Fuller),
v.
Comp. Appeal
Workers’
Bd.
agent
has notice that the principal’s
(Pa.Cmwlth.2008).
§ 3.04 reject Most recent cases the rule stat- 3.08, Capacity 2. Section Loss Of Second, ed in Agency Restatement However, a principal’s of capacity loss Instead, § 122. they principal’s treat a has consequences stated in Restatement compara- loss of as a condition *9 (Third) Section, Agency § of 3.08. That minority ble to that destroy does not entitled Capacity,” provides “Loss Of in legal personhood justifies but an election pertinent part: by whether to be bound transactions.
(1) An principal’s individual loss of ca- approach, Under this transactions are void, pacity voidable, do an act principal’s terminates the not unless the agent’s authority actual do capacity the act. loss of is known at the outset to only permanent adjudicated The termination is effective be a when or court has against party. the third the effective as capacity. to lack If principal the If notice, such but the third capacity, principal agent the the had principal recovers notice, or may right principal exercise the to disaffirm have the party did not appar- ratify by transactions.... the doctrine may be bound of 3.11, b. § Comment authority. See that ent approach The drawback to this is (1), notice of of subsection necessarily purposes For protect agents it does of notice incapacity requires acted reason- principal’s and third who have a effect, manifesta- or notice ably light principal’s of the to that adjudication an of establishing who lack notice the tions of assent and of circumstances ca- principal’s incapacity. the Loss of permanent. capacity loss of principal’s minority fully is not pacity analogous to (1) Although rule subsection the because, judicial a determination absent principal to disaffirm permit does not incapacity, of it less ascertainable regains legal principal if the transactions objectively of lay on the basis persons the be- protects principal it capacity, criteria, including offi- such observable the is not bound principal cause age of certificates cial indicia birth the exceed that would transactions principal and drivers’ licenses. If the authority, principal if the agent’s actual upon elects disaffirm a transaction agent acted. capacity had at the time the agent the lia- recovering capacity, risks to the third principal the bound If bility party breaching to the third ap- agent acted with party because the warranty agent’s implied the express authority, principal the has parent Moreover, authority. of See 6.10. if agent. the claim have party the third did not notice of (Third) Agency 3.08 Restatement the third principal’s capacity, loss of added). (2006), (emphasis Comment b party not have notice that would might transaction later disaffirmed Thus, capacity by prin the loss Finally, no- principal. lacking automatically terminate does not cipal capacity, principal’s loss tice of undertak authority. Transactions agent’s attempt party the third lacks occasion principal’s after a loss en advantage on that basis to take in certain cir may be voidable capacity principal. None the cases that treat cumstances, in others. but not voidable such transactions as voidable involve here, has no notice Where, a third consequences. these or of adjudication incompetency of an (1), The rule stated in subsection principal, permanent loss the statutes dis- policy based on the may be bound [involving above durable cussed authority, agent’s apparent party by the attorney, uniform, code commercial avoided. not be and the transaction such partnerships], make comment, there are in the As discussed Instead, pro- voidable. it transactions this outcome. support two reasons of actual au- that the termination vides First, the third these circumstances under loss of thority principal’s that follows that the trans- not have notice party would legal is not effective when disaffirmed. Sec- might later be actions princi- notice of the agent did not have loss ond, principal’s without notice agent did capacity. If the pal’s loss occasion party lacks capacity, the third notice, the third not have such but princi- advantage attempt to take principal’s incapacity, notice of the *10 may not the transaction authority pal. Where actual is termination of the avoided because of the agent’s apparent parties third when well the authority, principal’s remedy the displayed is is to them. agent,
her party. not the third Id. at Comment b. 3.11,
3. Section Termination sum, apparent authority not is Apparent Authority Of automatically by terminated principal’s the capacity. loss of agent may An act with 3.11, Section entitled “Termination Of apparent authority following principal’s Apparent Authority,” confirms forego- of capacity loss party, where third such ing analysis: SERS, has a reasonable belief that the (1) The authority termination actual agent authority. acts with actual This be does not itself any apparent end au- lief be reasonable where thority agent. held displayed and the third principal have notice that the lost (2) Apparent authority ends when it is capacity. longer no for reasonable the third
with agent whom an deals to believe that Applying the rules set forth in the Re- agent continues act with actual statement to the facts as found authority. Board, we reach the same results as under Pennsylvania Thus, law. Petitioner’s loss (Third) Restatement of Agency, 3.11 automatically does not termi- (2006). Comment b to Section 3.11 adds authority nate the apparent of her attor- (with the following pertinent explanation ney-in-fact. knowledge the absence of added): emphasis of her loss capacity, may rely SERS agent may An apparent act with au- the apparent authority by power evinced thority following principal’s death specifically The Board found or loss because basis that there were no facts or circumstances apparent authority principal’s is a prevent- known to SERS that would have parties, coupled third manifestation ed relying SERS from on the awith party’s third reasonable belief attorney in good faith. agent that the acts actual authori-
ty. §§ See 2.03 and We our acknowledge Supreme 3.03. Neither ele- that requires ment principal yet adopted that the Court has not consent these sections (Third) of the agent manifest assent at the time Restatement Agency. believe, however, takes action. do We parties When third that the rules are law, have notice that the consistent with has died or and we predict lost capacity, they may reasonably be- Court will embrace agent provisions lieve the to be authorized. Restatement when the occasion arises. Moreover, principal’s the rule that the authority death terminates apparent V. Conclusion
inconsistent with of contempo- the effect rary legislation, many respects which in discussed, For all the reasons we affirm protective Board, act who the decision of which denied without knowledge principal’s request early void the re- death or of capacity.... loss The execut- tirement election made her ed constitutes to apply for a disabili- manifestation of assent, principal’s ty annuity made retroactive her effective date *11 may be it application, file the entered able to This decision is of retirement. possessing power a anyone filed Peti- any remedies prejudice without instances, the Board In all attorney-in- have tioner shall review furnished and will be fact.11 designating persons legal documents eligi- eligible to act on behalf who are ORDER ble members. NOW, September, day 18th AND this 249.7(e). 4 Pa.Code Employees’ of the the order State terms, distin- very regulation this By September Retirement Board dated in- physical guishes between mental of Teresa M. regarding the Claim court- requiring a the former competency, Vine, AFFIRMED. mandates and further appointed guardian, pur- which any legal document review BY Senior CONCURRING OPINION person a to act on anoth- port designate Judge McCLOSKEY. at er’s behalf. merely in this case was executed issue I concur the result reached with desig- on the line the mark of “X” with case, sepa- I majority this but write signature of Petitioner. nated for rately my with to address concerns above, it light regulation cited thereof, review, adequacy of the or lack for this member of the Court impossible Re- Employees’ conducted the State executed believe that Board) (the regard tirement Board flag not raise a red in this manner would to the issue this scrutiny by the closer and mandate Board/ agree majority’s I with the conclu- case. Unfortunately, Petitioner failed SERS. of rec- sion that review of the evidence respect regula- to this an issue with raise a lack of ord in this case fails establish or the hearing examiner tion before the good faith on the of the Board or the part hence, and, ripe this issue was Board System Employees’ Retirement for review this Court. (SERS).1 Nevertheless, I note that the Board’s provide regulations following:
own any
Ineligibility select When benefit. retirement, upon he member enters application
shall either execute the or,
his in the case where the own behalf mentally incompetent do
member is
so, by a shall be executed application In the
guardian appointed by court. physically un- who is
case of member agree majority insofar with the holdings unnecessary 11. Given these 1. I further it is enjoyed juris prejudice to without whether the Board its decision us to discuss it enters (Petitioner) may the durable to decide whether diction Vine Teresa M. remedies attorney was whether Petitioner void and attorney-in-fact. against her have capacity. lacked mental notes son is invalid and void. Petitioner hearing properly examiner cited is not argues that the that this Finally, Petitioner Wilhelm, Pa.Super. v. Wilhelm prejudiced by reli- a case where SERS is (1995), proposition A.2d 34 for the rather, power attorney; this is ance on a granting if a person was a case where void time the incapacitated at the was Petitioner, used to make an election then the granted, was make a valid competent, is able to now While Peti- must be held be invalid. questions why the election. dealing of precedent tioner notes a lack aimed at involve a statute Board would attorney in with invalid and void reliance instead of party good faith Pennsylvania, precept that the she asserts duty statutory under performing its reach frequently is obvious and does not adjust when to correct and errors Code7 various appellate level. Petitioner cites