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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 : : : : : : : : : : : : : : 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 grand mother’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.J

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that Ms. La n genbach, as a guardian ad litem , is im mune 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. La n genbach 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 o f 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 a ppointed 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 be st 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 u ltimately 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. La n genbach, 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, includ ing 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 immu nity 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 p erforming judicial or quasi

judicial 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 cle rk receives the benefit of his or her judge’s judicial immunity, he or she was entitled to immunity. See also Clodgo byJ

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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 p remised 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 e xtended 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 absolute ly 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 w ere 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 whe ther a guardian ad litem is entitled to judicial immunity, for the reasons set forth in the th o rough and well

- reasoned opinion of HonorableJ

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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 fr om suit under the doctrine of judicial immunity.