J-A17002-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.W.M. AND E.M., MINORS, 

THROUGH THEIR PARENTS AND 

NATURAL GUARDIANS, J.M., N.M., 

AND J.A.M.

Appellant

v.

PATRICE LANGENBACH AND 

DEFENDER ASSOCIATION OF 

PHILADELPHIA

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1532 EDA 2020

Appeal from the Order Entered July 8, 2020

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): No. 200300399

BEFORE: McLAUGHLIN, J., KING, J., and PELLEGRINI, J.*

CONCURRING/DISSENTING MEMORANDUM BY PELLEGRINI, J.:

 FILED FEBRUARY 1, 2022

I agree with the majority’s affirmance of the trial court’s dismissal of the 

action filed by N.W.M. and E.M., both minors, through their mother, J.L.M., 

their father, N.M., and their grandmother, J.A.M., for legal malpractice, as well 

as parents’ and grandmother’s claim for intentional infliction of emotional 

distress against Patrice Lagenbach while acting as N.W.M.’s and E.M.’s 

guardian ad litem. However, I would also affirm the trial court’s main holding 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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that Ms. Langenbach, as a guardian ad litem, is immune from suit under the 

doctrine of judicial immunity.

The Latin phrase “ad litem” means “for the purposes of the legal action 

only, which suggests that a person appointed to serve as a guardian ad litem 

is appointed to perform a very specific task in a very specific context.” Ad 

Litem, BLACK’S LAW DICTIONARY (6th ed. 1990). Ms. Langenbach was 

appointed pursuant to 42 Pa.C.S. § 6311 which requires the mandatory 

appointment of a guardian ad litem to “represent the legal interests and the 

best interests of the child” in all dependency matters. The Rules of Juvenile 

Court Procedure also provide for the appointment of a guardian ad litem in 

dependency proceedings. Pa.R.J.C.P. 1151. Under those provisions, unlike 

the guardian of the person or an attorney appointed to represent the child, 

the guardian ad litem does not have the authority to act for the child nor does 

he or she have other tasks outside the context of the proceeding; the guardian 

ad litem is tasked to make his or her own decisions about the best interests 

of the child and to report those conclusions to the court who makes the 

ultimate determination as to what is in the best interests of the child and to 

aid the court in making a decision. In this case, it was the juvenile court judge

who was ultimately responsible for determining what was in the best interests 

of the children that was the direct cause of the purported harms for which the 

plaintiffs are seeking damages against Ms. Langenbach, the guardian ad litem.
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The majority does not address whether the guardian ad litem is entitled 

to judicial immunity because it finds that as an “error correcting” court, it is 

not within our ken to address this issue presumably because the Supreme 

Court has to decide that issue in the first instance. I disagree with the 

majority’s position, because while we may be an error-correcting court, we 

are not a potted plant. When questions are raised that are central to the 

resolution of an appeal, including whether a principle applied in other cases 

should be applied or extended to the case before us, it is our duty to decide 

the question before us even when Supreme Court has not squarely addressed 

the issue. Ultimately, if we “error-correct” too much or too little or just 

enough, our Supreme Court will take the appeal, correct our ways if need be, 

and make the final policy decision on that issue. See, e.g., Durham v. 

McElynn, 772 A.2d 68, 70 (Pa. 2001) (affirming our decision that extended 

official immunity to assistant district attorneys).

Further illustrative of that point is that this court and the Commonwealth 

Court have addressed many times in the first instance whether judicial 

immunity and quasi-judicial immunity (administrative agency immunity) apply 

to certain individual officials carrying out or performing judicial or quasijudicial functions. For example, in Feingold v Hill, 521 A.2d 33 (Pa. Super. 

1987), we held that even though there was no Pennsylvania case law 

addressing whether a law clerk receives the benefit of his or her judge’s 

judicial immunity, he or she was entitled to immunity. See also Clodgo by 
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Clodgo v. Bowman, 601 A.2d 342 (Pa. Super. 1992) (judicial immunity 

insulated a court-appointed medical expert witness from liability premised 

upon malpractice); Panitz v. Behrend, 632 A.2d 562 (Pa. Super. 1993) 

(applying testimonial immunity to expert witnesses); Logan v. Lillie, 728 

A.2d 995, 998 (Pa. Cmwlth. 1999) (immunity applied to a child custody 

conference officer who, pursuant to the Pennsylvania Rules of Civil 

Procedures, conducted a child custody settlement conference and made 

recommendations to a judge on whether to suspend a father’s custody over a 

child); Reuben v. O'Brien, 496 A.2d 913 (Pa. Cmwlth. 1985) (judicial 

immunity extended to township constable whose actions were taken at 

direction of district judge); Myers v. Dept. of Labor and Indus., 458 A.2d 

235 (Pa. Super. 1983) (holding that a workers’ compensation referee was 

acting as a quasi-judicial officer and was absolutely immune from liability for 

his statutorily-assigned tasks); Urbano v. Meneses, 431 A.2d 308 (Pa. 

Super. 1981) (holding that zoning board members, when ruling on an 

individual application for a zoning permit, were acting in a quasi-judicial 

capacity and were entitled to quasi-judicial immunity); Doe v. Wyoming 

Valley Health Care Sys., Inc., 987 A.2d 758 (Pa. Super. 2009) (concluding 

that judicial immunity applied to a witness who testified at a National Labor 

Relations Board employment hearing).

As to whether a guardian ad litem is entitled to judicial immunity, for 

the reasons set forth in the thorough and well-reasoned opinion of Honorable 
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Abbe Fletman of the Court of Common Pleas of Philadelphia County, I would 

hold that a guardian ad litem is immune from suit under the doctrine of judicial 

immunity.