Real Property, Probate and Trust Law - Pennsylvania Bar Association

Real Property, 

Probate and 

Trust Law 

The Newsletter of the Pennsylvania Bar Association Real Property, Probate and Trust Law Section 

SECTION REPORT: 

From the Chair 

Winter 2012 

• Issue No. 70 

By Bridget M. Whitley 

Our section has always been 

active in legislative advocacy, and 

several bills on some of our key 

issues are advancing. On the real 

property front, HB 970, enacting the 

Uniform Real Property Electronic 

Recording Act, passed the House and 

has been referred to the Senate State 

Government Committee. I would like 

to acknowledge the tireless efforts of 

Arnie Kogan, the immediate past chair 

of this section, to develop language 

addressing legislative concerns about 

fraudulent recordings that enabled 

passage of the bill. Our section is also 

participating in developing legislation 

consolidating two statutory regimes 

dealing with real estate tax sales, and 

a bill should be introduced in the near 

future. 

Several bills that amend the 

Probate, Estates and Fiduciaries Code 

also advanced, including HB 1324 

(increasing the jurisdictional limits for 

small estates petitions) and HB 1905 

(amending the Powers of Attorney 

statute). The bar association’s position 

on these bills (supporting the former 

and opposing the latter), developed 

through the efforts of our section, were 

duly noted in the debate and passage 

of these bills by the House. 

We are putting the finishing 

touches on a diverse program of 

continuing legal education courses 

to be presented at our annual retreat, 

which will be held in conjunction 

with the Pennsylvania Bar Association 

Annual Meeting, on May 9 and 10 at 

the Lancaster Marriott at Penn Square 

in Lancaster. I hope you will join us 

on one or both days, and please plan 

to attend our annual meeting on May 

10. Details will be available from the 

Pennsylvania Bar Institute and the 

Pennsylvania Bar Association, by mail 

and on their websites. And don’t miss 

our annual wine-tasting dinner on 

May 9. These are always memorable 

for the selection of wines (thank you, 

Brett Woodburn), delicious food and 

camaraderie. 

I highly recommend the 

new George Clooney film, “The 

Descendants.” The back story concerns 

the pending termination of a dynasty 

trust due to the impact of the Rule 

Against Perpetuities (remember that). 

I have heard there’s a debate among 

academics on whether the rule and 

other similarly ancient relics from 

the English common law should still 

be taught in law school property and 

probate classes. It’s tempting to dismiss 

these, as so many have been abolished 

statutorily and now reside in the dust 

bin of history ... except for when they 

don’t. And lest you think that they 

only make interesting plot devices 

in books and movies, I submit this 

tiny tidbit from my own experience: 

I once administered an estate where 

the construction of the will (drafted 

by decedent’s accountant) involved 

the Statute of Uses (you might need to 

Google that one). 

The other aspect of “The 

Descendants” that intrigued me was 

how the film handled the sensitive 

subject of end-of-life decision-making. 

The main character’s wife has suffered 

a severe head injury and is in an 

irreversible coma with no prospect of 

recovery. She has an advance directive, 

which states her wish not to have her 

life artificially prolonged. While this 

Inside the Winter 2012 issue 

(Continued on Page 2) 

REPORT: Probate and Trust Law Division....................................................3 

Real Property Division................................................................................4 

ARTICLES: 

Revised PA RW-02 ‘Petition for Grant of Letters’....................................5 

Will by a Power of Attorney for a Principal...........................................6 

Tort Liability for Out-of-Possession Landlords.....................................10 

‘Granny Snatching’ Prohibition Pending in Pa......................................12 

Allocating Risks in Commercial Leases..................................................14 

Lis Pendens – Origin, Creation, Duration, Termination Origin, 

Nature.....................................................................................................17 

Recent Updates in Probate and Trust Law.............................................20 

UPDATE: Winter 2012 Legislative Update..................................................23 

RPPT Section Leadership...............................................................................31

Real Property, 

Probate and Trust Law Section 

Newsletter 

Executive Editor: 

Neil E. Hendershot* 

nhendershot@ssbc-law.com 

Editorial Assistant: 

Mark B. Hammond** 

hammond3@zoomlynx.com 

Phone: 717-264-9381 

PBA Staff Editor: 

Amy Kenn 

Amy.Kenn@pabar.org 

Phone: 717-238-6715, ext. 2217 

PBA Staff Liaison: 

Michael T. Shatto 

Michael.Shatto@pabar.org 

Contributors to this issue: 

Melissa Dougherty 

Ronald M. Friedman 

Aubrey H. Glover 

Neil E. Hendershot 

Arnold B. Kogan 

Pati Lindauer 

Joel S. Luber 

Steven B. Loux 

Bridget M. Whitley 

Brett Woodburn 

The Real Property, Probate and 

Trust Law Section Newsletter is 

published by the Real Property, 

Probate & Trust Law Section of the 

Pennsylvania Bar Association. Inquiries 

or comments may be sent 

to the Communications Dept., PBA, 

P.O. Box 186, Harrisburg, PA 17108, 

fax 717-238-2342, or to the editors 

listed above. For additional information 

call the PBA at 717-238-6715 

or 800-932-0311, or contact the Section 

officers. 

Copyright © 2012 by the PBA Real Property, 

Probate & Trust Law Section. 

*Neil Hendershot, Esq., is with the 

Harrisburg firm of Serratelli, Schiffman 

& Brown P.C. 

**Mark Hammond, Esq., retired 

after 29 years in trust banking in 

Central Pennsylvania. 

Real Property, Probate & Trust Law Section Newsletter 

SECTION REPORT: 

From the Chair 

(Continued from Page 1) 

is hard for her father to accept, it does 

provide a certain degree of comfort 

to her husband and daughters in 

knowing that they are carrying out 

her wishes. As painful as it is to lose a 

loved one, knowing that she would not 

want her life to be artificially sustained 

helps the family to cope with their 

grief. We render an invaluable service 

to our clients when we assist them 

with planning for end-of-life decisionmaking 

as part of their estate planning. 

As I compose this message, a 

television news show is airing in 

the background, and, as you might 

expect, election coverage dominates 

the broadcast. It’s tempting to tune 

out the endless analysis and repetitive 

airing of the same footage or sound 

2 

bite, but the fact is, the outcome of this 

election will have a major effect on our 

practices, whether we concentrate in 

the areas of real property or probate 

and trust law, principally because of 

federal fiscal policies. Because so much 

of what we do is driven by federal and 

state tax considerations, and because 

of the uncertainty of what taxes and 

spending will, or won’t, be, we face a 

host of problems in planning for and 

advising our clients this year. Whether 

your political leanings are left, right, 

center, some of the above, all of the 

above, or none of the above, it’s every 

citizen’s responsibility to be informed 

on the issues and participate in the 

process. Stay tuned; it’s going to get 

interesting. • 

Bridget M. Whitley, chair of the section, is 

an associate with the Harrisburg law firm 

Skarlatos & Zonarich LLP. 

Interested in contributing to the next RPPT Newsletter 

We welcome updates on committee activities or projects, or on matters 

affecting our practice areas. We seek equality between our Divisions; and we 

need commitments for material from each Division. We ask our officers, council 

members and committee chairs to submit or recruit material, or to recommend 

material to reprint with permission. Please produce submissions in MS 

Word format and send the file as an attachment via e-mail to the editors. The 

deadline for the Summer 2012 newsletter is May 25, 2012. 

Executive Editor: 

Neil E. Hendershot, nhendershot@ssbc-law.com 

Editorial Assistant: 

Mark B. Hammond, hammond3@zoomlynx.com 

PBA Staff Editor: 

Amy Kenn, Amy.Kenn@pabar.org 

www.pabar.org 

For all the information you need about 

the Pennsylvania Bar Association 

REPORT: 

Probate and Trust Law Division 

By Aubrey H. Glover 

As discussed in the Summer 

2011 Real Property, Probate and Trust 

Law Newsletter, the Pennsylvania Bar 

Association (PBA) Real Property, 

Probate and Trust Law Section and the 

PBA Elder Law Section worked together 

to obtain a resolution from the House 

of Delegates and Board of Governors 

to establish the Pennsylvania Bar 

Association’s position for legislative 

changes to our Powers of Attorney 

statute (20 Pa. C.S. §§ 5601-5611) 

following the decision in Vine v. SERS 

Board, 9 A3d 1150. That resolution 

supports the following changes: 

• The amendment of § 5601 to 

provide increased safeguards 

for principals who execute 

Powers of Attorney to include 

(i) an acknowledgement by the 

principal that the execution is by 

the principal’s free will and with 

sound mind, (ii) the requirement 

of two witnesses (excluding the 

proposed agent), and (iii) formal 

execution by the principal and 

witnesses before a notary public. 

• The amendment of § 5602 to 

authorize the use of photocopies 

or electronic copies of originally 

executed powers of attorney so 

that such copies are as effective 

as the original. 

• The amendment of § 5608 

to expressly provide for the 

immunity of third parties who 

reasonably act in good faith 

reliance on documents that 

appear to be valid powers of 

attorney while obligating third 

parties to comply with the 

directions of agents under such 

powers of attorney. 

Three bills currently pending in 

our legislature seek to make changes to 

our Powers of Attorney statute, not all 

of which are created equal. Those bills 

are Senate Bill 96 (referred to the Senate 

Judiciary Committee on Jan. 12, 2011), 

Senate Bill 1092 (removed from table 

on Dec. 7, 2011), and House Bill 1905 

(referred to the Senate Judiciary 

Committee on Dec. 12, 2011). 

Senate Bill 96 (SB 96) is the broadest 

bill because it seeks to amend other 

provisions within Title 20 (Decedents, 

Estates and Fiduciaries) of the 

Pennsylvania Consolidated Statutes. 

While SB 96 would amend Chapter 56 

of Title 20 to require two witnesses, it 

does not require any formal execution 

before a notary public. SB 96 also 

seeks to modify an agent’s authority to 

make gifts by amending § 5601.2. The 

proposed amendment to § 5601.2 by SB 

96 is of grave concern to members of 

the PBA Elder Law Section who fear it 

will impede their ability to assist clients 

with Medicaid planning. 

Senate Bill 1092 (SB 1092) comes 

nearest to making the changes that 

the Real Property, Probate and Trust 

Law Section desires. Section 5601 

would be amended to require the 

power of attorney to be executed by 

the principal before two witnesses 

and acknowledged before a notary 

public. Neither witness could be an 

agent under the power of attorney. SB 

1092 would amend § 5602 to provide 

that a photocopy or electronically 

transmitted copy of an original power 

of attorney would have the same effect 

as the original. Finally, SB 1092 would 

amend § 5608 to expand the grounds 

that establish reasonable cause for a 

third party not to honor the instructions 

of an agent acting under a document 

appearing to be a valid power of 

attorney. It would also provide that any 

person who reasonably acts in good 

faith reliance on a document appearing 

to be a valid power of attorney should 

incur no liability as a result of acting 

in accordance with the instructions 

of the person claiming to be an agent. 

Section 5608 of SB 1092 would preserve 

the ability to hold a third party civilly 

liable for refusing to comply with an 

agent’s instructions if the third party 

did not have reasonable cause for such 

3 

refusal and damages resulted from 

such noncompliance. 

House Bill 1905 (HB 1905), which 

the Pennsylvania Bankers Association 

favors, does not seek to make any 

changes to how a power of attorney 

is properly executed and does not 

require witnesses or a notary public 

to be part of the execution process. 

Rather, HB 1905 seeks to amend § 5608 

by allowing a third party, in good 

faith, to rely upon a presumption that 

the principal’s signature or mark on 

a power of attorney is genuine and to 

accept a power of attorney without 

liability if the third party did not have 

actual knowledge that a signature 

or mark of the principal or that of a 

witness is not genuine. Additionally, 

HB 1905 would further amend § 5608 

to provide that a third party who 

accepts a power of attorney without 

actual knowledge that the document 

is void, invalid or terminated, or that 

the agent is exceeding or improperly 

exercising the authority of the agent 

may rely upon the power of attorney 

as genuine, valid and that the agent’s 

authority is bona fide. HB 1905 would 

define “good faith” as honesty in fact. 

Under the amendments proposed by 

HB 1905, a third party asked to accept 

a power of attorney may request 

and then rely upon without further 

investigation, (i) an agent’s certification 

under penalty of perjury of any factual 

matter concerning the principal, agent 

or power of attorney or an affidavit 

under § 5606, (ii) an English translation 

of the power of attorney, (iii) an 

opinion of counsel as to “any matter of 

law concerning the power of attorney” 

if the person making the request states 

the reason for the request in writing. 

Many members of our section are 

concerned about the ability of third 

parties to request legal opinions and 

how such opinions could be rendered 

as to the continuing validity of the 

power of attorney. While HB 1905 

provides a legislative correction for 


Winter 2012

REPORT: 

Real Property Division 

ARTICLE: 

Revised PA RW-02 ‘Petition for Grant of Letters’ 

By Brett Woodburn 

REPORT: 

Probate and Trust Law Division 


the Vine decision, it does so with a 

high cost. A lengthier discussion of the 

drawbacks can be found in the Summer 

2011 Real Property, Probate and Trust Law 

Newsletter in an article titled “Powers 

of Attorney and Third Party Liability” 

by Bridget M. Whitley. 

Since the PBA Real Property, 

Probate and Trust Law Section and 

the PBA Elder Law Section worked 

The Real Property Division 

continues to represent its members 

well, as we track and act upon 

legislation that may have an impact on 

the practice of real estate throughout 

the commonwealth. On June 24, 2011, 

the Private Transfer Fee Obligation 

Act became law. This act serves 

several important functions, focusing 

on disclosing and/or prohibiting 

fees that are to be paid to former 

owners or developers, but that have 

no relationship to maintaining or 

improving the property. 

The division has also been actively 

tracking HB 970, the Uniform Real 

Property Electronic Recording Act 

(“URPERA”), in an effort to pass 

legislation that will create a Land 

Records Committee that would be 

responsible for supervising electronic 

recording in Pennsylvania. One of 

the principal goals of URPERA is to 

establish uniformity for electronically 

recording land records, not only within 

the commonwealth, but across the 

country as other states enact similar 

pieces of legislation. This legislation is 

important because Pennsylvania law 

currently permits electronic recording 

but without uniformity or supervision. 

The bill is structured to allow for 

verification of electronic notarization 

through cross-referencing other databases 

and implementing various levels 

of encryption and security to reduce the 

opportunity for fraud. The legislation 

also proposes aggressive criminal 

enforcement of crimes of fraud, giving 

teeth to where none currently exist. 

There has been some opposition 

throughout the history of this bill, but 

through diligent efforts of the members 

of our division working with PBA staff 

and our friends on the Hill, we are 

encouraged that URPERA now has the 

backing it needs to succeed. On Dec. 20, 

2011, HB 970 passed the House 197-0. It 

was referred to the State Government 

Committee on Jan. 9, 2012; we will 

continue to monitor this bill and keep 

our members informed. 

There are current efforts in the 

legislature to amend the tax foreclosure/ 

tax sale law. The division is monitoring 

this legislation closely and is working 

with PBA staff, members from the Hill 

and representatives from other special 

interest groups to modernize and 

stream line a rather cumbersome and 

archaic process. This is one of the more 

intricate and complex undertakings 

with which we have been involved in 

recent months, and this process will 

not quickly be concluded. 

Other pending bills include: 

proposed amendments to the 

Mechanics’ Lien Law, proposed 

amendments to the law of adverse 

possession and several proposals for 

together to obtain a resolution from 

the House of Delegates and Board of 

Governors as discussed above, the 

PBA Elder Law Section has sought a 

new resolution that would support HB 

1905. This is due to the PBA Elder Law 

Section’s concerns with the changes to 

the gifting provisions of the Powers of 

Attorney statute that are proposed by 

SB 96. The PBA Real Property, Probate 

and Trust Law Section respectfully 

disagrees with such proposed 

resolution and continues to prefer a 

narrow legislative correction to the 

amendments to the Municipalities 

Planning Code. 

At the federal level, the Consumer 

Finance Protection Bureau (“CFPB”) 

finally has a director, and the agency 

is poised to implement many of the 

directives set forth in the Dodd-Frank 

Act. The CFPB has been charged 

with simplifying and integrating the 

disclosures mandated by the Real Estate 

Settlement Procedures Act (“RESPA”) 

and the Truth in Lending Act (“TILA”). 

The CFPB has drafted and published 

for comment two forms that combine 

the HUD-1 Settlement Sheet and the 

TIL disclosure form. Additionally, the 

CFPB has indicated it is now prepared 

to begin enforcing RESPA violations, a 

function it was woefully incapable of 

performing without a director. Lastly, 

the United States Supreme Court is 

set to hear oral arguments in the case 

Freeman v. Quicken Loans, Inc., to decide 

whether it takes two actors sharing an 

unearned fee to violate the fee-splitting 

prohibition in RESPA. 

All in all, another active year in 

Dirt Law! • 

Brett M. Woodburn is the vice chair of the 

Real Property Division of the PBA Real 

Property, Probate and Trust Law Section. 

He is a shareholder with the Harrisburg 

law firm Caldwell & Kearns. Follow him on 

Twitter at http://twitter.com/bmwdirtlaw. 

Vine decision, as set forth in SB 1092. 

Our section will continue to monitor 

the legislative developments and 

advocate for a resolution of the issues 

created by the Vine decision. Until then, 

I welcome comments from our section 

membership on this and any other 

matters that concern our section. • 

Aubrey H. Glover, vice chair of the Probate 

and Trust Law Division of the PBA Real 

Property, Probate and Trust Law Section, 

is an associate with the Pittsburgh law firm 

Cohen & Grigsby PC. 

By Neil E. Hendershot 

On Oct. 11, 2011, the Pennsylvania 

Supreme Court approved a revision 

of a Form RW-02 (Petition for Grant 

of Letters) 1 (PDF, 2 pages) for use 

in all Registers of Wills offices in 

the commonwealth beginning 30 

days later, on Nov. 10, 2011. In a Per 

Curium Order, 2 which was posted 

by the Pennsylvania Supreme Court 

on the website of the Administrative 

Office of Pennsylvania Courts on 

Oct. 12, 2011, the court acted upon 

the recommendation of its Orphans’ 

Court Procedural Rules Committee. 

The new Form RW-02 (Petition for 

Grant of Letters) bears a revision date 

of 10/11/11, and replaces a prior 

form adopted five years ago (Rev 

10/13/06), which bore a longer title. It 

will become available among the other 

“fill-in” forms on the AOPC’s website. 3 

However, posting of the replacement 

form may not occur until its effective 

date. The Index to Appendix - Orphans’ 

Court and Register of Wills Forms 4 was 

amended accordingly. 

I explored the need for a revision 

of this form previously. See: PA EE&F 

Law Blog posting Update to Probate 

Petition in PA (01/18/2011). 5 Changing 

the current form was required due to 

the passage of Senate Bill 53, PN 2228, 6 

which was signed by the governor as 

Act 85 of 2010, to become effective on 

Dec. 26, 2010. 7 

That act inserted into the 

Pennsylvania Probate, Estates & 

Fiduciaries Code new provisions that 

eliminate a spouse’s interest in an estate 

if a divorce action is pending (instead 

of finalized, as formerly provided) and 

if the grounds for divorce have been 

established. 

This revision of the form, however, 

goes beyond that substantive change 

and offers a revised layout and order 

of data. The form also will serve as a 

formal entry of appearance for counsel 

and will highlight whether a surety 

bond is required or not. The form 

will continue, at its end, to serve as a 

Register’s Decree, if granted. 

As a member of the Orphans’ Court 

Procedural Rules Committee who 

participated in the recommendation 

process, I am pleased with the court’s 

actions, which were posted as follows: 

In Re: Amendment of Form RW- 

02 (Petition for Probate and Grant 

of Letters) -- Appendix to Supreme 

Court Orphans’ Court Rules, No. 548 

Supreme Court Rules Docket Opinion 

By: per curiam 

Posted By: W.D. Prothonotary 

Date Rendered: 10/11/2011 

Date Posted: 10/12/2011 

Opinion Type: Rules 8 










Editor’s note: The new probate form is 

designed so that the filled-in data cannot 

be saved in Adobe Reader. Norma Chase 

of Pittsburgh has provided the Adobe 

Reader modified form on the Pennsylvania 

Bar Association’s Probate and Trust 

Listserv. Here’s the Reader-enabled 

form: http://dl.dropbox.com/u/6913046/ 

NewProbateFormEnabled.pdf. The form 

has also been exported to Microsoft 

Word: http://dl.dropbox.com/u/6913046/ 

NewProbateForm.doc • 

1 

http://www.pacourts.us/OpPosting/ 

Supreme/out/548spctattach3.pdf 

2 


Supreme/out/548spct.pdf 

3 

http://www.pacourts.us/Forms/ 

OrphansCourtForms.htm 

4 


Supreme/out/548spct.attach1.pdf 

5 

http://paelderestatefiduciary.blogspot. 

com/2011/01/update-to-probate-petitionin-pa.html 

6 

http://www.legis.state.pa.us/cfdocs/ 

billinfo/billinfo.cfmsyear=2009&sind=0& 

body=S&type=B&BN=0053 

7 


legis/PN/Public/btCheck.cfmtxtType=H 

TM&sessYr=2009&sessInd=0&billBody=S 

&billTyp=B&billNbr=0053&pn=2228 

8 


Supreme/out/548spct.pdf 

9 


Supreme/out/548spct.attach1.pdf 

10 



11 



Neil E. Hendershot is Of Counsel at the 

law firm Serratelli, Schiffman & Brown 

PC in Harrisburg, where he concentrates 

his practice in the areas of elder law, 

personal and estate planning, estate and 

trust administration, and Orphans’ Court 

litigation. He is executive editor of this 

newsletter. 


4 

5 

Winter 2012

ARTICLE: 

Will by a Power of Attorney for a Principal 

• Can an Agent under Durable Power of Attorney 

write a last will for a principal How about only revise 

an estate plan The answers may surprise you. 

By Joel S. Luber 

A new client, Jane, walks in your 

door and tells you her husband, Dick, 

who while alive appointed her as 

his agent under a Durable Power of 

Attorney document, died leaving a 

last will. Jane shows you the will and 

it is signed “Jane, agent for Dick,” 

with Dick’s name on the signature line 

handwritten thereon by Jane. What’s 

your first reaction 

Do you ask to see the Power of 

Attorney document Do you ask 

whether Dick was incapable of signing 

the will on his own, hoping that you 

might be able to rely on 20 Pa.C.S.A. 

§2502(3) to have it accepted for probate 

by the Register of Wills, with an 

explanation that what appears to be 

offending language (“agent for Dick”) 

is nothing more than a description of 

the position Jane was accorded as a 

matter of statutory construction when 

she signed Dick’s name to the will Or 

do you simply say, as did recently a 

judge of the Orphans’ Court Division 

of the Montgomery County Court 

of Common Pleas (herein the “Trial 

Court”), without even examining the 

contents of the POA document, that 

“an agent under a power of attorney 

does not have the power to execute a 

testamentary document on behalf of 

his or her principal” In fact, would 

you be inclined to go one step further, 

as did the judge, and say: “This 

concept is axiomatic – so much so 

that we can find and were cited to no 

Pennsylvania cases that spell it out, 

although numerous legal treatises, 

commentaries and internet blogs and 

commentaries (sic) affirm it” 

It is respectfully suggested that 

far from it being “axiomatic,” this 

concept enunciated by the Trial Court 

may, in fact, be just the opposite. 

That is, it appears to be, instead, a 

plain misstatement of the law under 

Pennsylvania’s version of the Uniform 

Durable Power of Attorney Act, 20 

Pa.C.S.A. §5601, et seq. (herein the 

“Act”). 

For starters, inasmuch as the 

court appeared to have a penchant 

for commentaries, here’s at least one 

commentary that disaffirms it. In a 

faculty article published in the William 

Mitchell Law Review by Robert McLeod, 

titled “What are the Limitations to an 

Attorney-in-Fact’s Powers to Gift and 

Change a Dispositive (Estate) Plan,” 

27 Wm. Mitchell L. Rev. 1143 (2000), in 

Part V, Paragraph A, he writes: “I have 

not found any real authority that limits 

a principal’s ability to delegate the 

power to create a Will...” Id. at 1152. 

This particular statement is footnoted 

in the article, and reference is made 

to the Restatement (Second) of Property: 

Donative Transfers 34.5 (1990), cmt. on 

subsection 3. McLeod notes here that 

“[t]he comments [in the Restatement] 

provide no substantive support for 

the proposition that a person cannot 

delegate the power to make a Will.” 

Case of First Impression. It is 

not clear whether the Trial Court’s 

reference in its Memorandum Opinion 

to a “testamentary document” was 

intended to mean, specifically, a Last 

Will and Testament, or generically, any 

document that serves the same purpose 

of a last will. The term “testamentary 

document” is not defined in the PEF 

Code. Black’s Law Dictionary also 

doesn’t define the term, although 

it does include another that is very 

close, to wit: “testamentary paper or 

instrument.” That definition reads as 

follows: “An instrument in the nature 

of a will; an unprobated will; a paper 

writing which is of the character of a 

will, though not formally such, and, if 

directs to the contrary, shall 

be construed in accordance 

with the provisions of this 

chapter (emphasis added). 

an agent under a power of attorney 

does not have the power to execute a 

testamentary document on behalf of 

his or her principal” is, on its face, in 

ing could be further from the truth. 

Subsection 5603(c) provides that 

an agent can make additions to any 

trust in existence when the power 

allowed as a testament, will have the 

direct contravention of the holdings was created, provided the terms of 

effect of a will upon the devolution and 

The court went on to elaborate as espoused by our Supreme Court and the trust relating to the disposition of 

distribution of property.” Fifth Edition 

follows: 

Superior Court, in no less than four income and corpus during the lifetime 

(1979). Regardless of the Trial Court’s 

cases, concerning the parameters of the of the principal are the same as set 

intended use of the term “testamentary 

On its face, the language Act. Quite simply, there is absolutely forth in subsection (b). But there is 

document,” the axiom is arguably 

of this statute does not nothing in the Act that prohibits a no requirement in subsection (c) that 

wrong on both accounts, i.e, generically 

suggest that its provisions principal from granting his agent the remaining corpus of the trust be 

and as to a last will specifically. 1 

are to be restrictive or the power to execute a testamentary distributed to the principal’s estate. 

Interpretation of the Act. The 

exclusive. Indeed the statute document. Accordingly, with statutory Subsection 5603(g) provides that an 

issue of the full breadth and depth 

contains several phrases language that reads: “In addition to all agent has the power to withdraw and 

of an agent’s authority under a 

supporting the contrary other powers that may be delegated receive the income or corpus of any 

power of attorney document, while 

view [citing section 5601]… to an agent… ,” absent a specific trust over which the principal has the 

not specifically answered by any 

From this we conclude that prohibition in the Act, itself, section power to make withdrawals. 

Pennsylvania court heretofore, has 

the statute does not limit the 5601 must be read to mean that such a Now take the very typical estate 

nonetheless been addressed and 

subjects that may properly power may be delegated by a principal plan that includes a living trust in 

analyzed in a good number of cases 

be addressed by powers of to his agent. 

lieu of a last will, which is revocable 

decided in this commonwealth, 

attorney, nor does it confine 

Altering a Principal’s Estate Plan. by the grantor during his lifetime, 

including the Supreme Court. In the 

the way such powers may If it is really true that a principal can under which the grantor can withdraw 

case In re Estate of Reifsneider, 531 Pa. 

be defined…we do not delegate to his agent the power to sign any income or corpus that he desires 

19; 610 A.2d 958 (1992), the Supreme 

think it necessary for the his will, doesn’t this give the agent the during his lifetime, and upon the death 

Court granted allocator to examine a 

legislature to alter the law power to alter his or her principal’s estate 

plan Exactly. But this is already is left to the beneficiaries identified in 

of the grantor the remaining corpus 

case of first impression regarding the 

when it chooses to enter a 

interpretation of the power of attorney 

field theretofore occupied the state of the law in Pennsylvania. the trust agreement. Those residuary 

act under the prior version of the Act, 

by common law...the statute Accepting for the moment the applicability 

of the Black’s Law Dictionary defi- 

but do not necessarily have to be the 

beneficiaries under the living trust can 

Act 1982-26. Included in the opinion 

can be given meaningful 

is a brief history of the law regarding 

application without resorting 

to the restrictive ment” cited above, i.e., “a[ny] paper the grantor’s last will, assuming he has 

nition of “testamentary paper or instru- 

same beneficiaries that are identified in 

powers of attorney, starting with the 

common law of agency. At issue in 

application of the court writing which … will have the effect of one; and those residuary beneficiaries 

the Reifsneider case was whether a 

below. Id. at 25-26. 

a will upon the devolution and distribution 

of property,” there are at least not necessarily have to be the same 

under the living trust can but do 

principal wishing to grant one of the 

powers referred to in section 5602(a) 

This expansive reading of the three other “paper writings” that have beneficiaries that would otherwise take 

[specifically the claiming of an elective 

Act was reaffirmed in a number of this effect: (i) an intervivos revocable as intestate heirs if the grantor left no 

share of the estate of the principal’s 

similar cases that followed Reifsneider, trust, sometimes referred to as a “living 

trust” or (not coincidentally) a “will This common form of living trust 

will. 

deceased spouse] must explicitly 

including In re: Marjorie H. Weidner, 

identify the power using specific 

595 Pa. 263; 938 A.2d 354 (2007) [agent substitute”; (ii) the beneficiary designation 

of a life insurance policy; and (iii) contemplated by both subsections 

falls within the description of the trust 

language either identical or similar 

found to have authority to change 

to the statutory language. Id. at 24. 

beneficiary of life insurance policy the beneficiary designation of a retirement 

plan. 3 And, in fact, all three said exercises either one of these powers, 

(c) and (g) of section 5603. If an agent 

The Supreme Court, in reversing the 

without specific language in the Power 

Superior Court, held in the negative. 

of Attorney document]; In the Matter “testamentary documents” are specifically 

included in the Act over which withdrawing assets from such a trust, 

by adding assets to such a trust or 

And in doing so, the court relied in 

of: Earl R. Mosteller, 719 A.2d 1067 

good measure on the language of 

(Pa.Super.1998) [agent found to have a principal may delegate to his agent the ultimate beneficiaries of those 

Section 5601 of the Act, which reads as 

authority to revoke a trust without the power to act. 4 One may be quick assets either contributed to, or removed 

follows: 

specific language in the Power of to jump up and point out that, at least from the trust might be different than if 

In addition to all other 

Attorney document]; and Taylor v. with respect to the creation of trusts, the power were not exercised. And if 

powers that may be 

Vernon, 652 A.2d 912 (Pa.Super.1995) the statute requires that the trust solely the agent does so, he surely will have 

delegated to an attorneyin-fact, 

any or all of the 

gifts under language giving agent and that the remainder of the trust plan.” The following conclusions, 

[agent found to have authority make benefit the principal during his lifetime “altered the principal’s existing estate 

powers referred to in 

power to convey land together with shall be distributed to the deceased therefore, are irrefutable. First, there is 

section 5602(a) (relating to 

general language granting agent power principal’s estate, 20 Pa.C.S.A. §5603(b) no implicit prohibition under the Act 

form of power of attorney) 

to perform any act principal might do (1); and that this provision serves as as concerns altering a principal’s estate 

may lawfully be granted 

if personally present]. Thus, regardless an implicit prohibition against making plan. Second, and more importantly, 

in writing and, unless the 

[almost] of what a power of document any dispositions that would alter the this is further proof that the “axiom” set 

power of attorney expressly actually says, the “axiom” that “… principal’s existing estate plan. Noth- 



6 

7 

Winter 2012

ARTICLE: 

Will by a Power of Attorney 

for a Principal 


forth in the Trial Court’s Memorandum 

Opinion must be wrong as a matter of 

law. 

The same analysis holds true in 

connection with the power of an agent 

to designate the beneficiary of a life 

insurance policy and a retirement plan 

asset. The only limitation in either 

of these subsections of the Act is that 

the agent cannot name himself as 

beneficiary of a life insurance policy, 

with an exception to the exception 

if the agent is the spouse, child, 

grandchild, parent, brother or sister 

of the principal. 20 Pa.C.S.A. §5603(p) 

(3). No one can seriously argue that 

the power to change the beneficiary 

of a principal’s insurance policy or 

retirement plan is not the power to 

alter an estate plan. Thus, again, for 

the Trial Court to have said or implied 

otherwise, its order was premised on a 

clear error of law. 

Fraud and Abuse Potential. Your 

author will not disagree with the 

proposition that a principal having 

the right to delegate to his agent the 

authority to execute a testamentary 

document may be a radical idea 

whose time has not yet come. Nor 

do I doubt the hue and cry that will 

inevitably ensue from even suggesting 

it from those who would stand on 

their soap box and sermonize about 

the evils of fraud and abuse and how 

unsuspecting principals will be fleeced 

by their scoundrel agents should such 

a proposition be true. But, in reality, 

the potential for fraud and abuse 

is already the state of the world for 

all Pennsylvanians living with the 

current version of Chapter 56 of our 

PEF Code, and the case law is replete 

with the horror stories. The statute says 

what it says. “In addition to all other 

powers that may be delegated to an 

agent…” Section 5601. The Supreme 

Court has interpreted the legislative 

intent of same by saying “the language 

of this statute does not suggest that 

its provisions are to be restrictive or 

exclusive.” Reifsneider. 531 Pa. at 25. 

The Superior Court followed suit in 

Mosteller, supra, and Taylor v. Vernon, 

supra. 

The case from which the 

hypothetical facts set forth above 

presented the perfect opportunity 

for the Superior Court to formulate 

a cogent opinion on way or another 

about the parameters of the Act and 

in particular the narrow application 

of same concerning the execution of a 

testamentary document by an agent 

for his or her principal (whether or not 

the principal is disabled, as were the 

facts in the real case). But the Superior 

Court ducked the issue. So, all we 

have on the issue is an Orphans’ Court 

opinion that says a principal cannot, 

which it declared to be “axiomatic,” yet 

acknowledging that said declaration 

was without a scintilla of legal support 

that is worthy of serious jurisprudence. 

Should it matter if the facts of our 

hypothetical case are that Jane, on her 

own, and without the consent of Dick, 

had the will prepared and executed 

it without his knowledge Or do we 

feel better if Jane only executed a 

testamentary document that Dick, 

himself, directed be prepared on his 

behalf, the document was then prepared 

by Dick’s own counsel, the contents of 

which he read and understood, and 

then, because he was physically unable 

to do so on his own, directed Jane to 

sign on his behalf, which she did in 

his presence, and at his direction, with 

his openly declaring that the will was 

his own expression of testamentary 

intent, all of which was subscribed to 

by witnesses and a notary public 

If it were only the potential for 

fraud and abuse that drove the Trial 

Court to formulate its “axiom,” we 

can applaud its concern. But it is not 

the Trial Court’s (nor any court’s) job 

to protect the public. The job of our 

commonwealth’s judicial system is 

to interpret the laws enacted by our 

General Assembly. And, in fact, since 

the General Assembly first passed the 

Act in 1982, in response to a variety of 

warnings over potential abuse, the Act 

has been amended by our legislature 

only four times, two of which had 

nothing to do with protecting the 

innocent. 

Recent History of the Act. The 

most significant revision took place in 

1999, when the right of a principal to 

authorize an agent to make “unlimited” 

gifts was (not eliminated from the Act) 

but was only deleted from §5602(a) and 

moved into the all new §5601.2. Act 

1999-39 (S.B. 173), P.L. 422, § 9. 5 Today, 

if a principal wishes to authorize his 

agent to make “unlimited” gifts, he 

can no longer do so by the simple 

expedient of including in his power 

of attorney document the shorthand 

statutory language “to make gifts.” 

Instead, to authorize the making of 

“unlimited gifts,” the principal must 

now do so “by specifically providing 

for and defining the agent’s authority 

in the power of attorney.” 20 Pa.C.S.A. 

§5601.2(c). A principal can still use 

the shorthand statutory language 

to authorize the making of “limited 

gifts,” those being limited in any one 

year to the amount equal to the federal 

gift tax annual exclusion ($13,000 in 

2011). Also included in the 1999 Act 

was a new subsection (e) that reads as 

follows: 

(e) Equity-- An agent and 

the donee of a gift shall be 

liable as equity and justice 

may require to the extent 

that, as determined by the 

court, a gift made by the 

agent is inconsistent with 

prudent estate planning or 

financial management for 

the principal or with the 

known or probable intent 

of the principal with respect 

to disposition of the estate. 

It is also interesting to note that 

the Joint State Government Committee 

in its notes to the 1999 Act said, as to 

subsections (a), (b), and (c) of this new 

provision of the law, “It is the intent of 

[these] subsections to overrule Estate 

of Reifsneider, 531 Pa. 19, 610 A.2d 958 

(1992), to the extent that Reifsneider 

would permit an agent to make a 

gift under a power of attorney which 

does not specifically provide for that 

power.” Query, whether the General 

Assembly adequately staunched the 

tide of potential fraud and abuse as 

concerns the making of gifts with new 

section 5601.2. 

The next substantive change to 

the Act came in 2002. Act 2002-50 (S.B. 

1014) P.L. 330, §9.1. This law added 

new sections 5601(E.1) [“Limitation 

on Applicability in Commercial 

Transactions’] and 5601(E.2) 

[“Limitation on Applicability in Health 

Care Power Of Attorney”]. One year 

later, the Act was amended again. 

2003-36 (H.B. 786) P.L. 211, §1. The 

only change here was the addition of 

another exception to the applicability 

of the Act, this one for “a power given 

to a dealer as defined…by the Board 

of Vehicles Act, when using the power 

in conjunction with a sale, purchase or 

transfer of a vehicle ….” [20 Pa.C.S.A. 

§5601(E.1)(1)(v)]. None of these 

amendments had anything to do with 

curing perceived abuses under the Act. 

The most recent amendment to 

the Act did address potential abuse 

by amending, in fact, those two 

provisions of the Act identified above 

in the discussion about “altering an 

estate plan,” i.e., sections 5603(p) and 

(q), the power to “engage in insurance 

transactions” and the power to “engage 

in retirement plan transactions.” This 

appeared in Act 2010-85 (S.B. 53) P.L. 

837, §4. In the former, the following 

new sentence was added to section 

5603(p)(3): “An agent and a beneficiary 

of a life insurance policy shall be liable 

as equity and justice may require to the 

extent that, as determined by the court, 

a beneficiary designation made by the 

agent is inconsistent with the known or 

probable intent of the principal.” In the 

latter, the following two new sentences 

were added to section 5603(q): 

“However, the agent cannot designate 

himself beneficiary of a retirement 

plan unless the agent is the spouse, 

child, grandchild, parent, brother or 

sister of the principal. An agent and a 

beneficiary of a retirement plan shall be 

liable as equity and justice may require 

to the extent that, as determined by 

the court, a beneficiary designation 

made by the agent is inconsistent with 

the known or probable intent of the 

principal.” 

To summarize, this is the current 

state of affairs (and the law) when it 

comes to agents being able to affect 

a principal’s estate plan and the 

potential for fraud and abuse. Agents 

can still give away all of the principal’s 

assets while he is alive, if the (perhaps 

unsuspecting or less than diligent) 

scrivener of the document includes 

the magic language in new section 

5601.2(c). If the document says only 

the power “to make limited gifts,” the 

agent can bleed the principal only a 

rate of $13,000 per donee per year. The 

agent can change the beneficiary of all 

of the principal’s life insurance policies 

and retirement plans, including 

naming himself or herself if he or 

she happens to be the spouse, child, 

grandchild, parent, brother or sister 

of the principal; provided, further, the 

designation is not “inconsistent with 

the known or probable intent of the 

principal.” 

Novosielski. Here’s another method 

an agent can utilize that can severely 

impact an estate plan and one just 

given the imprimatur of our Supreme 

Court with its recent adjudication in 

In re: Novosielski, 605 Pa. 508, 992 A.2d 

89 (2010). An agent can change the title 

to all of the principal’s “accounts” to 

joint ownership with the agent (or a 

friend or neighbor) as the other joint 

owner and rely on The Multiple-Party 

Accounts Act, 20 Pa.C.S.A. §§6301- 

6306, (“MPAA”) to be able to inherit 

all of the accounts so re-titled upon the 

death of the principal, regardless of the 

terms of the principal’s will. 

One may recall that the Superior 

Court opined in the Novosielski case, 

2007 Pa. Super 292, 937 A.2d 449 (2007), 

when the case first came before it, that 

the terms of a last will executed before 

the creation of the joint intent at the 

account should be considered “clear 

and convincing evidence of a different 

[testamentary] time the account is 

created” and expressed concern that 

“for all practical purposes… section 

6304(a) [can be used] to revoke the prior 

will in a manner not contemplated by 

our statutory scheme” and that “to 

conclude otherwise would lead to the 

frustration of testamentary intent and 

could result in fraud.” But the Supreme 

Court decided, on all accounts, 

otherwise. Instead, the Supreme 

Court’s opinion is that the MPAA 

trumps both Chapter 21 (relating to 

intestate succession) and Chapter 25 

of the PEF Code (relating to wills) and 

that there should be no compulsion “to 

read the provisions of the MPAA in pari 

materia with those other sections of the 

… PEF Code.” 605 Pa. at 519. 

An interesting omission in the 

Novosielksi case, as it relates to the 

topic of this article, is that there was 

no discussion at all in the Superior 

Court’s opinion, or the Supreme 

Court’s opinion, about whether the 

Uniform Durable Power of Attorney 

Act does or does not allow, or whether 

it should allow an agent to be given 

the authority to convert accounts 

of a principal into joint ownership. 

Because nowhere in the Act is there any 

provision that specifically authorizes it. 

The closest provision one can find that 

may apply is in section 5603, which 

includes the detailed description of all 

those powers listed in section 5602 that 

can be included in a power of attorney 

document with “shorthand language,” 

specifically, section 5603(m), the power 

to “engage in banking and financial 

transactions.” But in none of the six 

numbered paragraphs made part of 

§5603(m) does it say an agent can 

change the title of accounts from the 

principal’s name into joint names. 

Presumably, the Superior Court, and 

the Supreme Court, must have felt 

that this was a non-issue in Novosielksi, 

or simply that the open ended nonexclusive, 

non-restrictive general 

language of section 5601 permits it. 6 

Conclusion. It is this author’s 

opinion that the Trial Court’s “axiom” 

concerning the Act was a flat-out 

misstatement of law. Perhaps the 

Superior Court will have a second 

chance to rule on this issue. Or, if the 

General Assembly is fearful that the 

Trial Court will be reversed, it can 

always pre-empt that result and fix it. 

The fix may be as simple as that which 

was enacted to address the issue of 

gifts, life insurance and retirement 

plans (and can even be used for 

cases like Novosielksi). The new law 

can simply circumscribe an agent’s 

authority by requiring that (i) “by 



8 

9 

Winter 2012

ARTICLE: 

Tort Liability for Out-of-Possession Landlords 

By Ronald M. Friedman 

One of the most intriguing 

landlord-tenant cases in the last several 

years is Underwood ex rel. Underwood v. 

Wind, 954 A.2d 1199 (Pa. Super., 2008.) 

Although it was remanded as to part of 

the holding, the case offers a view into 

the thinking of the court with regard 

to tort liability for out-of-possession 

landlords. 

Out-of-possession landlords are 

those whose rental property is leased 

to a tenant, and the landlord reserves 

no right of possession of the property. 

A landlord is not out-of possession 

if a part of the premises is not leased 

and control is retained. An example of 

this would be when a landlord leases 

apartments in a building and retains the 

rights to possession of the interior and 

exterior common areas of the premises. 

Out-of-possession leases often involve 

freestanding residential dwellings 

where the tenant is given possession 

of the house and land and the tenant 

is responsible for exercising dominion 

and control over the entire premises. 

An out-of-possession landlord may 

retain certain rights, including the right 

to go upon the land and enter the house 

in order to perform maintenance and 

repair, to do inspections and to show 

the property to prospective tenants. 

The fact that these rights are retained 

does not affect the fact that the landlord 

has immediate right of dominion and 

control regardless of the fact that he is 

out-of-possession. 

The facts of the Underwood case 

are interesting. The landlord leased 

a house and grounds to a niece who 

maintained a dog on the premises. The 

dog escaped from the tenant’s house, 

ran down the street and attacked a 

young girl some distance away from 

the leased premises. Two female Good 

Samaritans driving by saw the attack, 

and in their attempt to separate the 

dog and girl, both were injured and 

subsequently required medical care. 

The victim and the two women brought 

suit against both the tenant and the 

landlord for damages. 

It is not surprising that the three 

plaintiffs brought suit against the 

landlord as well as the tenant, even 

though the landlord was not the dog’s 

owner, did not even have the right 

to exercise physical control over the 

dog and had no immediate right of 

control over the premises where the 

dog lived or where the injury occurred. 

It is a commonly-held belief that most 

landlords have deeper pockets than 

their tenants and that a reasonable 

landlord will have liability insurance. 

For the negligence attorney, it is 

essential to cast as a liability net as far 

and as broadly as possible. This can be 

done by seeking some legal theory of 

liability for the landlord who does not 

own or control the dog and does not 

have the immediate right of dominion 

and control over the premises where 

the dog was housed or where the tort 

occurred. 

There is very little precedent in 

Pennsylvania for extending liability 

to out-of-possession landlords. The 

leading case is Palermo by Palermo v. 

Nails, 483 A.2d 871 (Pa. Super. 1984). 

This case involved an out-of-possession 

landlord who had leased a property 

to a nephew, rent-free. A dog on the 

premises had wrapped its leash around 

a post and was choking. From another 

property nearby, a child observed 

the dog and went upon the property 

under lease to the tenant. In the course 

of trying to free the tenant’s dog on 

the property, the child was bitten and 

sustained permanent injuries. In the 

Nails case, the court noted that an outof-possession 

landlord is generally not 

liable and has no duty of care when 

the tenant has complete control of the 

premises. However, the court may 

have sought to extend liability to a 

potentially deeper pocket by invoking 

a theory of liability (no doubt supplied 

by plaintiff’s counsel) that could 

include an out-of-possession landlord. 

Since it was a case of first 

impression, the court in Nails looked 

to a California case for guidance. 

(Uccello v. Laudenslayer, 44 Cal.App.3d 

504, 118 Cal.Rptr. 741 (1975)) The 

California court held that a landlord 

out-of-possession may be held liable 

for injuries by animals owned and 

maintained by his tenant when the 

landlord has knowledge of the presence 

of the dangerous animal and where he 

has the right to control or remove the 

animal by retaking possession of the 

premises. In Nails, the Pennsylvania 

court accepted this premise. It adopted 

the logic that the out-of-possession 

landlord has a duty to invitees of the 

in-possession tenant if the landlord 

knows that there is a vicious dog on 

the premises, has the right to force the 

tenant to remove the vicious dog and 

fails to do so. The failure could be a 

breach of a duty to those invitees who 

come upon the leased premises who 

might be injured by the dog. 

Note that in both the California case 

and in Nails, the dog and the injured 

party were located upon the leased 

premises, and the injury occurred 

there. In Underwood the victim and the 

Good Samaritans were not injured on 

the leased premises, but at another 

location. The legal connection between 

the out-of-possession landlord and 

the injured parties is not the site of the 

alleged tort, but the fact that the dog 

that did the injuries was housed by its 

owner at the leased premises. There 

is no allegation in Underwood that the 

out-of-possession landlord had control 

over the dog’s actions or that the 

landlord was liable because the tort 

occurred on the leased premises. The 

only connection is that the landlord 

may have known about the dog and did 

not evict the tenant, thereby breaching 

the duty to an off-premises party who 

may be injured if the dog escapes from 

the leased premises and causes bodily 

harm. The record did indicate that the 

landlord knew about the dog, but it was 

unclear whether the landlord knew that 

the dog was kept at the leased premises 

and whether the landlord had the right 


ARTICLE: 

Tort Liability for 

Out-of-Possession Landlords 


to evict the tenant for having a vicious 

animal. Thus, there was a remand to 

the lower court for additional findings. 

Following the remand, the case was 

not appealed so that the ultimate result 

is not apparent. 

The key for the court in Underwood 

is that there could be liability to an 

out-of-possession landlord for an offpremises 

injury if the landlord had the 

right to control the actions of the tenant 

by evicting the tenant for having a 

vicious animal in violation of the lease. 

This connection of knowledge of the 

animal and the right to evict the tenant 

for having the dog would seem to 

open the door to liability for whatever 

happens anywhere if the landlord does 

not evict or force the tenant to get rid 

of the dog. 

Of course, from a social 

responsibility point of view, the 

eviction of a tenant for having a vicious 

animal does not solve the problem. If 

the landlord does evict, the tenant may 

ARTICLE: 

Will by a Power of Attorney 

for a Principal 


specifically providing for and defining 

the agent’s authority in the power of 

attorney” [§5601.2(c)]; (ii) “an agent 

and the [beneficiary] of a [testamentary 

document] shall be liable as equity 

and justice may require to the extent 

that, as determined by the court, a 

[testamentary document] made by 

the agent is inconsistent with prudent 

estate planning … for the principal 

or with the known or probable 

intent of the principal with respect to 

disposition of the estate” [§5601.2(e)]; 

and (iii) “the agent cannot designate 

himself beneficiary of a [testamentary 

document] unless the agent is the 

spouse, child, grandchild, parent, 

brother or sister of the principal” 

move to another location where the 

dog can continue to feed upon other 

victims at the new neighborhood. 

The problem of the vicious dog is not 

solved; it only goes to another place. 

It is possible that the court felt that 

it had to do something for the victim 

and the Good Samaritans, and it may 

have been obvious to the court that 

the only source of funds to accomplish 

this was with the landlord or the 

landlord’s liability insurer. In doing 

so, however, the court has potentially 

extended the circle of liability beyond 

what is reasonable. It holds an out-ofpossession 

landlord liable for injuries 

that happened away from the leased 

premises caused by a dog over which 

the landlord had no immediate right to 

control. 

Possible tongue-in-cheek solutions 

for attorneys who represent landlords 

are to include provisions in the lease 

that limits the tenant to maintaining 

only vicious animals on the leased 

premise. If such an animal is kept, the 

landlord does not have the right to 

evict by the lease’s terms and cannot 

be liable since it is beyond the right of 

the landlord to do anything about the 

[§§5603 (p) and (q)]. But until the 

General Assembly enacts another 

amendment, the Act, as written, in 

fact, does not preclude an agent from 

executing a testamentary document for 

his principal. • 

1 

The case in which this axiom was pronounced 

went up on appeal to the Superior 

Court; and it was argued that it was 

a case of first impression, at least with regard 

to the question of an agent executing a 

last will for his principal. But the Superior 

Court chose to enter an order to resolve the 

appeal without addressing the issue. 

2 

The Act was amended in 1999 to change 

the words “attorney-in-fact” to “agent.” 

3 

It is even more axiomatic that as to life insurance 

policies and retirement plan assets 

that the policy owner’s and account owner’s 

last will does not control the identity 

of the recipient of the proceeds. Rather, it 

is the written beneficiary designation on record 

with the insurance company/custodian, 

alone, that controls. [Citations omitted]. 

animal. Or, the landlord can insert a 

provision in the lease that if the tenant 

maintains a vicious animal, it must be 

kept from the view and knowledge of 

the landlord so the landlord is ignorant 

of the animal’s presence at the leased 

premises. The landlord cannot be held 

responsible for the actions of a dog that 

the landlord does not know about. 

Since the Underwood case was 

decided, no other reported case has 

followed it. It may be that this is a 

situation where the Underwood case is 

an aberration in extending the liability 

of out-of-possession landlords. As an 

additional note along the same lines, 

the ruling in this line of cases was not 

extended to homeowners associations 

failing to control dogs of homeowners 

in the development. See McMahon v. 

Pleasant Valley West Association, 952 

A.2d 731 (Pa.Cmnwlth, 2008). • 

Ronald M. Friedman is in practice in State 

College and is author of Pennsylvania 

Landlord-Tenant Law and Practice 

(Third Edition) and is principal editor of 

Ladner Pennsylvania Real Estate Law 

(Fifth Edition). 

4 

See: 20 Pa.C.S.A. §§5603(b); (c); (g); (p); 

and (q). 

5 

There were other important changes made 

to the Act with the 1999 amendments, including 

the now mandatory “Notice” that 

must be spelled out in capital letters in front 

of each power of attorney document, and 

the separate “Acknowledgment” that must 

be signed by each designated Agent. 

6 

Although it looked like the Superior Court 

was ready to go there, when it said: “Four 

days after execution of the codicil, appellant 

used his power as decedent’s attorneyin-fact 

to persuade the decedent to invest in 

a treasury account titled in both the decedent’s 

‘or’ the appellant’s name.” Id. at 458. 

Joel S. Luber is with Offit Kurman in 

Philadelphia. His practice includes 

sophisticated estate planning for high 

net worth clients, estate administration, 

Orphans’ Court practice, and general 

corporate and income tax planning. 


10 

11 

Winter 2012

ARTICLE: 

‘Granny Snatching’ Prohibition Pending in Pa. 

Editor’s note: This article is an adaption 

from the PA Elder, Estate & Fiduciary Law 

Blog of Neil E. Hendershot, dated Oct. 25, 

2011, and updated on Nov. 8, 2011. It is 

used with permission of the author. 

By Neil E. Hendershot 

Would you remember what 

“UAGPPJA” means, or what it could do 

in Pennsylvania, without an association 

to “granny snatching” Maybe that’s 

why such a Scrabble of title letters is 

linked to a simple, silly phrase. The 

serious and unremedied abuse 

situations involving transport of 

incapacitated elderly persons must 

be corrected by a dry, but effective, 

proposed model statute. 

The term “granny snatching” was 

referenced in a Nov. 12, 2007, article 

in The National Law Journal titled, 

“Dealing with ‘Granny snatching’ 

-- Model law aims to untangle adult 

guardianship,” by Peter Page. 1 That 

article addressed the final version of 

the Uniform Adult Guardianship and 

Protective Proceedings Jurisdiction Act 

(UAGPPJA), 2 which received approval 

at the 2007 annual meeting of the 

National Conference of Commissioners 

for Uniform State Laws (NCCUSL). See 

also: “Uniform Laws Needed to Deal 

With Interstate ‘Granny Snatching’ 

” (03/22/06), 3 posted by the Senior 

Journal. 

UAGPPJA deals primarily with 

jurisdictional, transfer and enforcement 

issues relating to adult guardianships 

and protective proceedings. NCCUSL 

explains, on its website, Why States 

Should Adopt UAGPPJA: 4 

• Provides procedures to 

resolve interstate jurisdiction 

controversies. 

• Facilitates transfers of 

guardianship cases among 

jurisdictions. 

• Provides for recognition and 

enforcement of a guardianship 

or protective proceeding order. 

• Facilitates communication and 

cooperation between courts of 

different jurisdictions. 

• Addresses emergency 

situations and other special 

cases. 

Since 2007, the UAGPPJA has 

been adopted by more than half the 

states, with many considering it this 

year. All states should adopt this law to 

prevent forum shopping and transport 

of persons with weakened mental 

condition. 

Pennsylvania is considering it now. 

On Sept. 28, 2011, the Pennsylvania 

House of Representatives’ Aging and 

Older Adult Services Committee, 

chaired by Rep. Tim Hennessey, held an 

informational session (videotaped by 

the Pennsylvania Cable Network) on 

House Bill No. 1720, 5 which had been 

introduced into the House previously 

on June 22, 2011. 

This is a second initiative this year 

that would upgrade and improve 

guardianship laws. The first initiative 

remains before the Legislature only 

in the form of two reports with 

recommendations, not in pending 

legislation. See: PA EE&F Law Blog 

posting Proposed Amendments of PA 

POA, Guardianship & Health Care 

Directive Laws (06/14/11). 6 

I understand that HB 1720 was 

widely and strongly supported by 

those at that session and within the 

House. It is promoted by AARP- 

Pennsylvania (offices in Harrisburg and 

Philadelphia). It is also championed by 

the Pennsylvania Bar Association. 

Nationally, UAGPPJA is supported 

by the American Bar Association 

(“Guardianship Jurisdiction”), the 

Alzheimer’s Association (“UAGPPJA 

Fact Sheet”), 7 the National 

Guardianship Association, Inc. 

(“UAGPPJA Links”), 8 the National 

Academy of Elder Law Attorneys 

(“Endorsement”), 9 AARP (“Radio 

Report”), and the Conference of Chief 

Justices and Conference of State Court 

Administrators (“Endorsement”). 10 

As a practitioner, I too support 

it. Unfortunately, present law in 

Pennsylvania will confound a court as 

to jurisdiction, can disconnect a local 

Area Agency on Aging as to protective 

services and can create litigation in 

both home and foreign jurisdictions 

among family members at great cost 

and inconvenience. 

The federal Elder Justice Act 11 

(effective March 2010) is not yet 

funded in the area of conflict of laws 

or interstate transport of elderly 

persons. See: The Elder Justice Act: What 

It Says, What It Means, And When Will 

It Be Implemented (10/26/10), 12 by Bill 

Benson and Bob Blancato. Furthermore, 

the EJA does not codify state laws on 

the issue of state jurisdiction, so there 

is no framework of uniform state laws 

other than this proposal. 

NCCUSL’s final model UAGPPJA 

must bear a few minor tweaks to 

conform it with existing Pennsylvania 

law in Chapter 55 (“Guardianship”) 

of the PA Probate, Estates & Fiduciaries 

Code, for example, on matters such as 

emergency guardianship and also its 

use of the term “conservatorship” (not 

used in our law). Also, it would need 

cross-referencing if it would become a 

new Chapter 59 of the PEF Code. 

WHYY’s Newsworks posted an 

article on Oct. 7, 2011, titled “Pa. plan 

aims to alleviate ‘granny-snatching’, ” 13 

which reflected both the need for, and 

growing momentum of, HB 1720: 

Stories of elderly parents being 

fought over by their children 

or relatives who want to be the 

sole guardians are familiar to 

Rep. Tim Hennessey of Chester 

County. 

“Somebody dies, and then 

someone else comes in and tries 

to assume control and the other 

siblings don’t like it. And it could 

be county to county or it could 

be state to state,” Hennessey 

said. “You know enough of these 

stories circulate that you think, 

oh, geez, somebody, here’s a 

problem, we have to solve it.” 

When a group called the 

Uniform Law Commission 

approached him with legislation 

to clear up the murky legal issue, 

Hennessey agreed to sponsor it. 

His proposal sets up rules to 

follow when multiple courts are 

involved in a dispute over who’s 

responsible for an incapacitated 

adult. * * * 

See also: New court rules proposal 

aims to prevent so-called “granny 

snatching” 14 (10/12/11), by Mary 

Wilson, posted by WITF. 

HB 1720 appears to be moving 

quickly in the House. Today (Oct. 25, 

2011), it received second consideration 

and was referred to the Appropriations 

Committee. This bill should be adopted 

by the House, and then by the Senate; 

and then it should be signed by the 

governor into law. And, while doing 

so, the Legislature should address that 

still-pending first initiative too, so that 

Pennsylvania’s guardianship laws can 

be more effective and fair. 

On Oct. 26, 2011, I received in the 

mail a copy of the Pennsylvania Bar 

Association’s Bar News. 

On the first page, under the 

heading “PBA President and Elder 

Law Section Officers Take Part in 

State House Roundtable on Adult 

Guardianship Bill” and below a color 

photograph taken at the Sept. 28, 2011, 

informational session, was this text: 

PBA President Matthew J. Creme 

Jr. and PBA Elder Law Section 

officers Sally Schoffstall and 

Jacqueline Shafer participate in 

a roundtable discussion Sept. 28 

in Harrisburg with members of 

the state House Aging & Older 

Adult Services Committee about 

House Bill 1720. 

The bill would amend Title 20 

by adding the Uniform Adult 

Guardianship and Protective 

Proceedings Jurisdiction Act to 

provide a uniform mechanism 

for addressing multijurisdictional 

adult guardianship issues. The 

PBA supports the bill. 

In a prior Bar News issue (09/05/11), 

I found a report of the PBA’s action 

authorizing such an appearance: 

The PBA Board of Governors 

met July 28, at Rocky Gap Lodge 

& Golf Resort and took the 

following actions: * * * 

Unanimously approved the 

resolution of the PBA Elder Law 

Section that the PBA support 

the addition of a new §5503 to 

the existing Probate, Estates and 

Fiduciaries Code at 20 Pa. C.S. 

Chapter 55, also known as the 

Uniform Adult Guardianship 

and Protective Proceedings 

Jurisdiction Act (UAGPPJA). 

The UAGPPJA provides 

a uniform mechanism for 

addressing multijurisdictional 

adult guardianship issues that 

have become time consuming 

and costly for courts and 

families. Because the PBA 

had been asked to testify at a 

legislative hearing on this issue 

in September, the Board took 

action on behalf of the House of 

Delegates. 

An emailed update [dated Nov. 8, 

2011] to PBA members noted recent 

approval by the House of HB 1720, as 

follows: 

House Bill 1720, sponsored by 

Rep. Tim Hennessey (R-Chester), 

passed the House 196-0 on Oct. 

26 and was referred to the Senate 

Aging and Youth Committee. 

The bill amends Title 20 

(Decedents, Estates and 

Fiduciaries) adding the 

Uniform Adult Guardianship 

and Protective Proceedings 

Jurisdiction Act, which provides 

for uniform adult guardianship 

and protective proceedings 

jurisdiction. • 

1 

http://www.guardianship.org/ 

spotlight/111207_National_Law_Journal. 

pdf 

2 

http://www.law.upenn.edu/bll/ 

archives/ulc/ugijaea/2007final.htm 

3 

http://seniorjournal.com/NEWS/ 

Features/6-03-22-UniformLawsNeeded. 

htm 

4 

http://www.nccusl.org/Narrative. 

aspxtitle=Why%20States%20Should%20 

Adopt%20UAGPPJA 

5 


billinfo/billinfo.cfmsyear=2011&sind=0& 

body=H&type=B&bn=1720 

6 

http://paelderestatefiduciary.blogspot. 

com/2011/06/proposed-amendments-ofpa-poa.html 

7 

http://www.alz.org/national/ 

documents/Adult_Guardianship_ 

Factsheet.pdf 

8 

http://www.guardianship.org/reports/ 

NGAResolutionUAGPPJA_Dec10.pdf 

9 


spotlight/NAELA%20Endorse.pdf 

10 


spotlight/CCJ%20Endorse.pdf 

11 

http://www.elderjusticecoalition.com/ 

12 

http://www.ncea.aoa.gov/Main_Site/ 

Library/Events_Webcast/docs/Elder_ 

Justice_Act_Q_and_A.pdf 

13 

http://www.newsworks.org/index. 

php/health-science/item/27936-pa-planaims-to-alleviate-granny-snatching 

14 

http://www.witf.org/regional-statenews/new-court-rules-proposal-aims-toprevent-so-called-granny-snatching 

Neil E. Hendershot is Of Counsel at the 

law firm Serratelli, Schiffman & Brown 

PC in Harrisburg, where he concentrates 

his practice in the areas of elder law, 

personal and estate planning, estate and 

trust administration, and Orphans’ Court 

litigation. He is executive editor of this 

newsletter. 


12 

13 

Winter 2012

ARTICLE: 

Allocating Risks in Commercial Leases 

• Third-Party Liability and Indemnification Clauses 

By Pati Lindauer 

Once the business terms of a commercial 

lease have been decided, and 

a landlord and a tenant move toward 

formally documenting their lease arrangement, 

part of the lease negotiation 

should focus on risk allocation. When 

a landlord prepares to give exclusive 

control and possession of all or part of 

a building to a tenant, what risks should 

the landlord expect the tenant to bear 

What risks should the tenant be willing 

to assume in connection with its occupancy 

in the landlord’s building 

Several concepts link together to 

provide the tenant and the landlord with 

the means to reach a fair risk allocation 

scheme. Included in most commercial 

leases are insurance obligations, mutual 

waivers of claims, waiver of subrogation, 

exculpation clauses and indemnification 

obligations. The first four concepts are 

used to address the allocation of risks 

and liabilities affecting the interests of 

both the landlord and the tenant in the 

leased premises and their liability to 

each other. For example, to control liability 

for property losses, the tenant and the 

landlord typically agree to insure their 

own property. They will waive claims 

against each other for property damage 

(regardless of cause) and require their respective 

insurers to waive any rights of 

subrogation. 

THE INDEMNIFICATION CLAUSE 

In addition to allocating property 

risk and limiting potential liability to 

each other, the landlord and the tenant 

must address their respective liability 

for third-party claims. Indemnification 

provides the indemnified party with 

assurance that certain losses, usually 

those involving third-party claims, will 

be covered by the party providing the 

indemnity, under specified circumstances. 

Almost all leases require one 

party or the other to promise to reimburse 

(and in some cases defend) the 

other against third-party claims if the 

party to be indemnified is named as a 

defendant or co-defendant in a lawsuit 

or claim because of its ownership, tenancy 

or presence at a property. 

Lease contract indemnifications are 

approached in a variety of ways. Often 

the parties perceive it as unlikely that 

the indemnity clause in the lease will 

ever be activated. Similarly, one or both 

parties to the lease may decide that indemnity 

provisions are not worth the 

time and emotion spent arguing about 

them, since, in the event of a loss or a 

third-party claim, the parties’ insurance 

companies will handle the matter. 

While that concept sounds reasonable, 

it will require both parties to insure almost 

everything, resulting in duplicative 

and overlapping insurance (possibly 

resulting in more expenses for the 

tenant, who usually contributes to the 

landlord’s insurance costs). 

Unclear, incomplete or ambiguous 

indemnification clauses can be dangerous, 

as can an indemnity clause that 

is inconsistent with other lease provisions. 

What can result is unintended liability, 

uninsured liability or providing 

the insurer with a defense to coverage. 

BASED ON FAULT 

Indemnification obligations drafted 

into a lease are often placed on 

the party at fault, with language like 

“caused by” and “attributable to” used 

to distinguish when a claim is one that 

will be covered by the indemnity. The 

“fault” approach can be difficult to negotiate, 

since neither party wants to be 

at blame for occurrences that might be 

outside of its control or are often nothing 

more than an accident. During lease 

negotiations, it may be hard to imagine 

that one’s conduct will ever be anything 

but correct and to take responsibility 

for matters that are unknown. 

Basing lease indemnification obligations 

on fault will require thought and 

discussion about blame, negligence vs. 

negligence. 

Indemnity clauses have been the 

subject of litigation when the party 

seeking indemnification was the negligent 

base mutual indemnifications on location 

– i.e, where the accident or occurrence 

happened. For example, the tenant’s 

indemnity to the landlord covers 

reference to fault. 

For example, as explained above, 

if the lease calls for the landlord to be 

named as an additional insured on the 

party. Pennsylvania courts fol- 

all claims arising inside the premises. tenant’s commercial general liability 

gross negligence, breach of contract 

and contributory negligence. 

low the rule that the indemnitor must The tenant, holding exclusive possession 

of its premises, will have CGL in- 

landlord need not necessarily carve 

policies, the tenant’s indemnity to the 

Likewise, if a third-party makes 

indemnify the indemnitee even if the 

a claim, an indemnification based on 

indemnitee was negligent, if the indemnity 

clause explicitly provides for landlord may not) and should be will- 

the CGL policy will cover the landsurance 

covering the premises (and the out the landlord’s negligence, since 

fault will lead to arguments about who 

was at fault, who shared in the fault, 

it. Unlike the rule for exculpatory provisions 

in lease agreements (where an lord for third-party claims that arise in Pennsylvania, the landlord’s neging 

to grant an indemnity to the landlord’s 

negligence. As discussed above, 

who was more at fault and, worst of 

all, can present a basis for denial of an 

unlimited release of liability will serve inside the premises. 

ligence can be specifically covered by 

insurance claim. 

to immunize a party from liability even Likewise, the landlord indemnifies 

the tenant for claims arising in ar- 

hand, from the tenant’s perspective, 

the tenant’s indemnity. On the other 

Another common drafting approach 

addresses the risks to be covnity 

clause will not be presumed to eas under the landlord’s control (for the tenant may on principle decide it 

if the party was negligent), an indemered 

by the indemnity, followed by a 

relieve the indemnitee from its own example, the common areas in an office 

building). The landlord will have ing the landlord’s negligence, unless 

will not agree to cover claims involv- 

list of exceptions. For example, the indemnitee’s 

own carelessness will be an 

party seeks to indemnify itself against commercial general liability insurance the landlord is willing to share in the 

negligence unless expressly stated. If a 

exception to the indemnitor’s liability. 

its own negligence, the language seeking 

to do so in the indemnification pro- 

not object to providing an indemnity in Having said that, take caution be- 

covering the common areas and should tenant’s insurance deductible. 

While conceptually, these recitals and 

exceptions seem logical and even fair, 

vision must be clear and unequivocal. favor of the tenant, to cover third-party fore dismissing indemnification clauses 

as matters best addressed by insur- 

the parties must follow it through by 

(Perry v. Payne, 22 A. 553 (Pa. 1907); claims when an injury occurs in the 

considering whether their insurance 

Ruzzi v. Butler Petroleum Co., 588 A.2d common area. This method allows the ance. All liabilities may not be insured 

coverage will defend or cover the types 

1 (PA 1991).) 

parties to know what to insure, gives against. The parties may want their 

of losses addressed by the indemnity 

Jurisdictions outside of Pennsylvania 

have, on occasion, ruled that a potential for arguments about blame. deliberate misconduct, criminal acts, 

the insurer certainty and sidesteps the indemnities to cover the indemnitor’s 

clause. 

Consider an example: The lease for 

broad indemnity, even if not explicitly Allocating the landlord and tenant’s 

indemnification of each other es, uninsured risks (like environmental 

violation of statutes or local ordinanc- 

a single-tenant building calls for the 

covering the indemnitee’s negligence, 

tenant to carry commercial general liability 

(CGL) insurance covering thirdgent 

indemnitee, reasoning that the party controls can bring certainty to the to carry the insurance coverage re- 

will be enforced in favor of the negli- 

to the areas of the property that each pollution) or the indemnitor’s failure 

party claims at the property. The landlord 

will not carry a separate liability 

quired to carry contractual liability in- 

allow the landlord and the tenant to In some cases, the parties may 

indemnitor (usually the tenant) is re- 

risks accepted by each party and also quired by the lease. 

policy but will ask to be named as an 

surance covering the indemnity clause. more precisely insure their risks, thus agree in an indemnification clause that 

additional insured on the tenant’s policy. 

The tenant agrees to indemnify the 

cover a party’s negligence, it follows ages. For example, when an office lease a loss is covered by the indemnitee’s 

Since liability insurance is designed to avoiding duplicative insurance cover- 

the indemnification does not apply if 

landlord for third-party personal injury 

claims that occur at the property. But 

demnitee’s negligence. 

lord for personal injury claims arising to liability exceeding insurance cover- 

that the insurance should cover the in- 

forces the tenant to indemnify the land- 

insurance. It should apply, however, 

an exception is made. The tenant’s indemnity 

excludes matters attributable 

nification from the tenant for injury or involving tenant’s visitors, the tenant and perhaps to insurance deductibles. 

In another example, a full indem- 

in the building’s parking garage and age, liability not covered by insurance 

to the landlord’s negligence. A claim 

death arising out of the use or occupancy 

of the premises, the only excep- 

such claims. That may be double cover- 

clause will say that the indemnity is 

will have buy insurance against any In fact, a carefully drafted indemnity 

is brought, naming both the property 

owner (landlord) and the tenant (the 

tion being for the landlord’s negligence age, since in most office building leases, 

the tenant will already be contribut- 

these reasons, an indemnification that 

not limited by insurance proceeds. For 

occupant) as defendants, after someone 

tripped on a crack in the park- 

gave the landlord the contractual right ing to the premiums for the landlord’s ties into insurance coverage should not 

during the performance of repair work, 

ing lot that the landlord negligently 

to indemnity from the tenant even liability policy that covers claims that have the effect of eliminating a party’s 

failed to repair. The tenant files a claim 

when a death of a tenant’s employee arise from occurrences in the parking liability for all types of loss, which may 

against its CGL policy to cover the legal 

was the direct result of the landlord’s garage. 

include uninsured matters. 

defense of the lawsuit. The indemnity’s 

negligent failure to keep the premises 

Another area requiring attention 

“exception,” made for the landlord’s 

safe. The unsafe condition did not arise MORE CONSIDERATIONS 

are lease clauses waiving certain types 

negligence, seems inconsistent with 

during the landlord’s performance of 

of damages (e.g. waiver of consequential 

damages) and limitation of liabil- 

the insurance provisions in the lease, 

repair work. (Law v. Reading Co., 312 In all cases, the indemnifications 

since the tenant’s CGL policy named 

F.2d 841 (3d Cir.1963).) 

in a lease should take into consideration 

the insurance requirements in found in other parts of the lease, away 

ity clauses. These provisions may be 

the landlord as an additional insured 

and therefore should cover the landlord’s 

negligence. The indemnification 

insurance, the risk of those losses can important to analyze these lease pro- 

GEOGRAPHIC INDEMNITY the lease. If a matter can be covered by from the indemnification clause. It is 

clause did not take into account that 

Some real estate practitioners do be shifted to the insurance carrier, and visions in order to understand if they 

the policy would cover the landlord’s not like a “fault” approach and instead the indemnification can work without 



14 

15 

Winter 2012

ARTICLE: 

Allocating Risks 


could operate to limit a party’s indemnity 

obligations for third-party claims. 

PRACTICE CHECKLIST 

Once the circumstances of the lease 

arrangement are understood, the real 

estate practitioner should analyze the 

relationship among insurance coverages, 

claim waivers and contractual indemnification 

and how these concepts 

will work together to establish legal liability 

of the landlord and the tenant to 

third parties. Negotiation of indemnification 

provisions in commercial leases 

is less agonizing if the parties focus on 

a few practical issues and move away 

from the debate about blame and each 

other’s propensity to do something 

foolish. This short checklist is offered 

Join. 

Connect. 

Succeed. 


for consideration when drafting lease 

indemnification clauses: 

Does the situation warrant reciprocal 

indemnities 

Does the indemnity expose a 

party to liabilities for matters outside 

of its control 

Can the tenant limit its exposure 

by carving out certain landlord acts, 

such as willful acts or breach of contract 

Does the indemnity clause survive 

termination of the lease 

Does the indemnity properly 

extend to employees, officers, agents, 

contractors, etc., of the indemnitee 

Should the parties agree to limit 

certain indemnity obligations to insurance 

proceeds 

Does the lease require the parties 

to carry insurance to cover their contractual 

indemnities 

Does the indemnity subject either 

party to consequential or punitive 

16 

damages 

If the property is highly leveraged, 

will the landlord have the resources 

to cover its liabilities • 

Pati Lindauer is assistant general counsel 

of Oxford Development Company, a real 

estate firm based in Pittsburgh, providing 

real estate development, asset/property 

management, investment advisory services 

and business operations. 

Editor’s note: An earlier version of this 

article first appeared in the Aug. 4, 2003, 

edition of The Legal Intelligencer © 2003 

ALM Media Properties, LLC. Permission 

of the copyright holder has been granted for 

this update. 

You set the goal of becoming a lawyer. You 

invested time, money and brainpower — and 

your heart and soul — to get through law 

school and pass the bar. Congratulations! 

Now you face the challenges of building a 

successful legal career. 

Your colleagues at the Pennsylvania Bar Association 

understand what it takes to develop a practice 

and to make connections that matter — especially 

during tough economic times like these. 

Your colleagues invite you to become a PBA 

member and take advantage of the many 

free benefits that go along with being part of 

Pennsylvania’s largest bar association. 

Invest in your career and your success by joining the PBA today. 

ARTICLE: 

Lis Pendens – 

Origin, Creation, Duration, Termination Origin, Nature 

By Arnold B. Kogan 

Lis pendens mean pending 

litigation. The courts use that term 

in two ways. The first use is to refer 

to prior ongoing litigation that has 

sufficient identity with the parties and 

issues in the current litigation so as to 

be a ground for dismissing the current 

litigation on the basis of multiplicity 

of actions. The second use is where 

an interest in real property is being 

litigated by the plaintiff to ensure the 

defendant does not convey the interest 

to a bona fide purchaser for value and 

thus negating a decision rendered in 

favor of the plaintiff files a lis pendens 

notice in the public records. This 

preserves the power of the court to 

render a binding, effective decision 

by providing constructive notice to 

potential purchasers and creditors 

that they will take subject to the rights 

determined by the court in the pending 

action. This article deals with the 

second use. 

Although there is now a statutory 

authority for lis pendens, 1 the right of 

lis pendens has deep roots in common 

law and equity. 2 The Pennsylvania 

Supreme Court explained its origin 

and nature in Pennsylvania as follows: 

The first point in 

controversy centers around 

the effect of the Doctrine of Lis 

Pendens on judicial powers. 

Lis pendens literally means 

a pending suit: Black, Law 

Dictionary (4th ed. 1951), and 

Rose Valley Borough v. Rose 

Valley Acres, 31 Pa.Dist. & 

Co.R. 261 (1938). The use of 

the doctrine was applied in 

Pennsylvania as early as 1831, 

when it was held in Lodge v. 

Simonton, 2 Penr. & W. 439 

(Pa.1831), that the rights of 

a party in real estate cannot 

be defeated by a conveyance 

thereof to a third party pending 

the adjudication of litigation, 

which has been properly filed 

and indexed, involving those 

rights. 

Lis pendens is construed 

to be “the jurisdiction, power, 

or control which courts acquire 

over property involved in a 

suit pending the continuance 

of the action, and until its final 

judgment therein.” Bungar v. 

St. Michael’s Greek Catholic 

Ch., 272 Pa. 402, 404, 116 A. 

389 (1922). The initial basis of 

the application of the doctrine 

was one of constructive 

notice to all the world of the 

pending litigation: Diamond 

v. Lawrence County, 37 Pa. 

353 (1860). In later years, the 

courts determined that the 

doctrine was one of policy 

only, i.e. it would be unfair 

and an insult to the courts to 

permit the severance of rights 

in a property which they were 

then in the process of deciding: 

Dovey’s Appeal, 97 Pa. 153 

(1881). Having determined 

that the **309 doctrine was 

founded on a policy, rather 

than conceptual basis, the next 

logical step was to decree the 

use of *238 equitable principles 

in the application of the rule. 

This point was reached in 

Dice v. Bender, 383 Pa. 94, 117 

A.2d 725 (1955), wherein we 

held that the doctrine does 

not establish an actual lien 

on the affected property, but 

rather merely gives notice to 

third parties that any interest 

that may be acquired in the 

property pending the litigation 

will be subject to the result of 

the action. Further, in Dice, we 

laid to rest the argument that 

lis pendens is a statutory right 

and that the court lacks power 

to rescind its operation. Therein, 

17 

we decided that the court may 

cancel lis pendens if the equities 

indicate such action. 3 

Because lis pendens is based in 

equity, equitable principles govern its 

creation, duration and termination. 

CREATION 

Lis pendens is created by 

commencing an action that affects an 

interest in real property and then filing 

a praecipe to have the Prothonotary 

index it as lis pendens. Under a prior 

statute the Prothonotary was directed 

to index all ejectment and equity 

actions affecting title to real estate 

in the Ejectment and Miscellaneous 

Index. 4 Under another statute, 5 now 

part of the Judicial Code, 6 indexing 

created constructive notice of the 

pending action, so merely filing 

the ejectment or equity action, 

which would then automatically 

be indexed by the Prothonotary, 

would create a lis pendens. There is 

no direct replacement of the statute 

mandating the Prothonotary to index 

pending ejectment and equity actions 

automatically as there is for a verdict, 

order (including those in equity) and 

judgment under the current Rules of 

Civil Procedure. 7 Instead, the plaintiff 

must file a praecipe to have the pending 

action indexed to create lis pendens for 

those types of actions and any other 

actions that qualify as a basis for lis 

pendens. 8 

Pennsylvania Supreme Court has 

allowed the creation lis pendens by 

praecipe, assuming the property is 

properly identified as described below, 

even though only a writ of summons 

was filed in the case. 9 Where an action 

is commenced by a writ of summons, 

the Rules of Civil Procedure authorize 

the defendant to obtain a rule to require 

the plaintiff to file a complaint within 

20 days after service of the rule, if there 


Winter 2012

ARTICLE: 

Lis Pendens 


is proper notice under the Rules, 10 or 

suffer a judgment of Null Pros. 11 Other 

states require the complaint to be filed 

before lis pendens will attach. 12 This 

gives adequate notice of the issues at 

stake. The justification for allowing the 

lis pendens to be based upon a mere writ 

of summons is that it allows a plaintiff 

to quickly act to prevent the defendant 

from transferring the property so as to 

avoid the effect of a decision in favor 

of the plaintiff. On the other hand, 

this creates a cloud on a defendant’s 

title and may give a plaintiff an unfair 

advantage in negotiations where 

there is no genuine dispute as to title 

issues. The above Pennsylvania rules 

that authorize the defendant to force 

the filing of the complaint where 

only a writ of summons is used to 

commence the action helps to offset 

this advantage. Defendant owners 

have gone on the offensive by filing a 

counterclaim or new action for slander 

of title, especially if the lis pendens 

is dismissed early in the litigation 

indicating its lack of merit. The courts, 

while recognizing the tort of slander of 

title in the reported cases, have refused 

to hold the plaintiff liable for exercising 

the longstanding lis pendens where 

title to real property is involved even 

if the lis pendens is cancelled because 

of mistakes. 13 

To create an effective notice, the 

praecipe, the petition or complaint 

must specifically identify the property 

and the parties. 14 That description can 

be inserted on the praecipe form or 

included in an attachment referenced on 

the praecipe. Of course, if the filer fails 

to include that attachment when filing 

with the Prothonotary, even if docketed 

and indexed by the Prothonotary, 

the lis pendens would be defective. 15 

Describing the property merely as a lot 

with certain dimensions on a named 

street was held insufficient. 16 A mistake 

in naming two lots numbered 42 and 

43 as lot 4243 made a lis pendens 

filing fatally defective. 17 Pa.R.C.P. 1352 

requires a description of the property 

in a writ of summons to commence an 

ejectment action. An address without 

more is insufficient. In a county that 

has adopted the Uniform Parcel 

Identifier Law, the use of the Uniform 

Parcel Identifier should be sufficient, 18 

but it is recommended that the address, 

if any, should be added for further 

identification. 

Pennsylvania has addressed lis 

pendens in more recent statutes. The 

Probate, Estates and Fiduciary Code 

directs the Prothonotary to file a lis 

pendens upon receipt of a certificate 

from the Clerk of the Orphans Court 

Division of an action against an estate 

for specific performance of agreement 

of sale of real property. 19 Compare 

this provision with the provision for 

lis pendens in the Abandoned and 

Blighted Property Conservatorship 

Act, which provides that the petitioner 

for a conservatorship file the lis 

pendens notice in the office of the 

Recorder of Deeds. 20 It would have 

been better for the conservatorship act 

to provide for the lis pendens filing in 

the office of the Prothonotary. Filing in 

the Prothonotary’s office would retain 

the control of the process entirely 

within the judicial system and its 

procedures for duration, modification 

and cancellation of a lis pendens. This 

would avoid the potential for the failure 

to cancel the notice in the office of the 

Recorder of Deeds upon termination of 

the conservatorship. 

DURATION, MODIFICATION, 

CANCELLATION 

Under older case law, lis pendens 

notice could be effective for many 

years. In one case, the Pennsylvania 

Supreme Court upheld the 

effectiveness of an indexed lis pendens 

notice that was 14 years old. 21 This 

was done on the basis that 14 years 

was far less than the 21-year statutory 

period necessary for a defendant to 

obtain title by adverse possession. If 

a plaintiff were to delay unreasonably 

in the prosecution of his claim or if the 

operation of the doctrine should prove 

to be harsh or arbitrary in particular 

instances, equity can and should refuse 

to give it effect and, under its power 

to remove a cloud on title, can and 

should cancel a notice of lis pendens, 

which might otherwise exist. 22 There 

are cases where the existing evidence 

was so clear that taking testimony for 

the specific purpose of determining the 

appropriateness of a cancellation was 

not required. 23 Laches as to lis pendens 

filings can apply to periods less than 

the period in the Statute of Limitation. 24 

In addition, today, the Pa. Rule of 

Judicial Administration 1901, when 

implemented by a local rule, could 

result in a dismissal of the underlying 

case where there is no activity for 

as little as two years. Prejudice is no 

longer required to dismiss for failure 

to prosecute. 25 The Superior Court 

affirmed the cancellation of lis pendens 

where there was no activity by plaintiff 

for just three years. 26 

Because equitable principles apply 

to lis pendens, the court will modify 

a lis pendens notice during litigation 

where it is found to be too broad in 

coverage. 27 

DUE PROCESS 

Because lis pendens becomes 

effective without a hearing, defendants 

have challenged lis pendens filings 

on the basis of due process. A panel 

of the Third Circuit Court of Appeals 

has unanimously sustained a New 

Jersey lis pendens statute 28 against 

a due process challenge, although 

the judges expressed in concurring 

opinions different reasons. 29 The 

court noted, however, that under that 

statute the complaint had to be filed 

before lis pendens could be served 

and take effect. New York, under its 

lis pendens statute, 30 has a practice 

similar to Pennsylvania, which, as 

discussed above, authorizes the 

filing of lis pendens upon a service 

of summons before the filing of the 

complaint. New York then provides, 

similar to Pennsylvania, a procedure 

whereby the defendant can force the 

filing of a complaint. 31 A lower federal 

court has sustained the New York 

statute against a due process challenge 

on the basis it did not deprive the 

defendant of significant property 

rights. 32 The Second Circuit in a later 

case also sustained the New York lis 

pendens statute. 33 The Pennsylvania 

practice has been sustained against 

Fifth Amendment and procedure due 

process challenges in an unpublished 

Third Circuit case. 34 The panel held 

there was no Fifth Amendment taking 

because there was no total deprivation 

of property, and due process was not 

violated because of the subsequent 

hearing provided. The ancient history 

of lis pendens and the preservation of 

the courts power to effectively decide 

a case, along with the right of the 

defendant to seek an early cancellation, 

may continue to sustain the lis pendens 

against due process challenges. So 

far, the United States Supreme Court 

agrees, 35 but a challenge in the future 

may be sustained. • 

1 

Judicial Code, 42 Pa.C. §§ 4302(b) (Pennsylvania 

courts) and 4305(b) (Federal 

courts located in Pennsylvania). 

2 

The lis pendens doctrine has been dated 

to the reign of Elizabeth I in England. See 

John I. Bennett, A Treatise on the Law of 

Lis Pendens: or The Effect of Jurisdiction 

upon Property Involved in Suit 59 n.4 

(1887), http://books.google.com/books/ 

about/A_treatise_on_the_law_of_lis_ 

pendens_or.htmlid=jgs-AAAAIAAJ, 

citing the King’s Bench decision Arundel 

v. Arundel, Cro. Eliz. 677, 40 Eliz. (1598), 

reprinted in 78 Eng. Rep. 914. 

3 

McCahill v. Roberts, 421 Pa. 233, 219 

A.2d 306 (1966), see also Dice v. Bender, 

383 Pa. 94, 117 A.2d 725 (1955). 

4 

Act of June 15, 1871 (P.L. 387, No. 356), 

§ 1, formerly 17 P.S. §1908; and the act of 

May 22, 1878 (P.L. 95, No. 125), formerly 17 

P.S. § 1910. 

5 

Act of April 22, 1856 (P.L. 532, No. 568), § 

2, formerly 12 P.S. § 1423. 

6 

42 Pa.C.S. § 4302(a) and (b). 

7 

Pa.R.C.P. 3021. 

8 

Judicial Code, 42 Pa.C.S. § 4302; In re 

Duffy-Irvine Associates, 39 B.R. 525 (1984). 

9 

Hillside Coal & Iron Co. v. Heermans, 

191 Pa. 116, 43 A. 76 (1899); Dorsch v. Jenkins, 

243 Pa.Super. 300365 A.2d 861 (1976). 

10 

Pa.R.C.P. 1037(a). 

11 

Pa.R.C.P. 237.1(a)(2). 

12 

See for example, N.J. R.C.W. 4.28.320 

(Washington); Neb.Rev.St. § 25-531 (Nebraska); 

C.R.S.A. § 38-35-110 (Colorado); 

R.C. § 2703.26 (Ohio); W.S.A. 840.10 (Wisconsin); 

IC 32-30-11-3 (Indiana). 

13 

Volodarsky v. Sun Lake Homes, Inc., 

81 D. & C.4 th 540 (C.P. Pike Cty. 2006), reversed 

on other grounds, 981 A.2d 948 (Pa. 

Super. 2009), as explained in unpublished 

memorandum opinion , J. 15012/09 (July 

27, 2009); Jefferson Woodlands Partners, 

L.P. v. Filipiak Enterprises, Inc., No. GD 02- 

13461 (C. P. Allegheny Cty. Sept. 30, 2003) 

(unpublished); and McLaughlin v. Royer, 

07-04168 (C.P. Montgomery Cty. March 

10, 2009) (unpublished), affirmed without 

published opinion, 990 A.2d 64 (2010). 

14 

Snook v. Eckley, 47 Pa. D. & C.2d 233 

(C.P. Mifflin Cty.1969); Pa.R.C.P. 1054, 

3104(c), 3112; and 22 Standard Pennsylvania 

Practice 2d § 120:56. 

15 

Dickson v. Pennsylvania Power and 

Light Co., 283 Pa.Super. 53, 423 A.2d 711 

(1980). 

16 

Dorsch v. Jenkins, 243 Pa. Super 300, 365 

A.2d 861 (1976); see also supra Note 14. 

17 

Volodarsky v. Sun Lake Homes, Inc., 

supra Note 13. 

18 

21 P.S. § 10.1. 

19 

20 Pa.C.S.A. § 3390. 

20 

The act of Nov. 26, 2008 (P.L. 1672, No. 

135), § 4, 68 Pa.C.S. § 1104(c). 

21 

Hillside Coal & Iron Co. v. Hermans, 191 

Pa. 116, 43 A. 76 (1899). 

22 

Dice v. Bender, 383 Pa. 94, 117 A.2d 725 

(1955). 

23 

McCahill v. Roberts, 421 Pa. 233, A.2d 

(1966); Rosen v. Rittenhouse Towers, 334 

Pa. Super 124 (1984). 

24 

Klein v. Walton, 413 Pa. Super 150, 604 

A.2d 1064 (1992). 

25 

Klein v. Walton, supra, citing Penn Piping, 

Inc. v. Insurance Co. of North America, 

529 Pa. 350, 603 A.2d 1006 (Pa.1992). 

26 

Dorsch v. Jenkins, supra. 

27 

Dice v. Bender, supra, Note 22. 

28 

N.J. Stat. Ann. 2A:15-6. 

29 

Chrysler Corp. v. Fedders Corp., 670 

F.2d 1316 (3 rd Cir. 1982); compare, U.S. v. 

Rivieccio, 661 F.Supp. 281 (1987), amplified, 

U.S. v. Rivieccio, 1987 WL 15271, Not 

Reported in F.Supp. (1987). 

30 

N.Y. CPLR § 6501; and N.Y. CPLR Rule 

6511 

31 

N.Y. CPLR § 3012(b). 

32 

U.S. v. Rivieccio, supra. 

33 

Diaz v. Patterson, 547 F.3d 88 (2d Cir. 

2008). 

34 

Mangan v. Brierre, 257 Fed.Appx. 525 

(2007). Fed. Rule of Appellate Procedure 

32.1 provides that since case was decided 

after January 1, 2007, it may be cited. 

35 

Connecticut v. Doehr, 501 U.S. 1111 S.Ct. 

2105 (1991), distinguishing its summary 

affirmance in Bartlett v. Williams, 464 U.S. 

801, 104 S.Ct. 46, 78 L.Ed.2d 67 (1983), 

involving lis pendens. See also Florrie 

Young Roberts, The Propriety of a Lis Pendens 

in Constructive Trust Cases, 38 Seton 

Hall L. Rev. 213 (2008). 

Arnold B. Kogan, immediate past chair of 

the section, is with Goldberg Katzman PC, 

Harrisburg. 

PBA 

Annual Meeting 

May 9-11, 2012 

Lancaster, Pa. 

Lancaster Marriott 

at Penn Square 

www.pabar.org 


18 

19 

Winter 2012

ARTICLE: 

Recent Updates in Probate and Trust Law 

By Melissa Dougherty 

Recent developments in the 

area of probate and trust law 

include important decisions by the 

Pennsylvania Supreme Court and bills 

passed by the Pennsylvania legislature. 

In addition, the Pennsylvania Supreme 

Court has approved the revised Form 

RW-02 (Petition for Grant of Letters), 

effective Nov. 10, 2011. Finally, the 

Department of Revenue has clarified 

its position on real estate valuation for 

inheritance tax calculation purposes 

by allowing for a 15-month valuation 

suspension for real property. Unless 

otherwise indicated, section and 

chapter references to the PEF Code are 

to the Pennsylvania Probate, Estates 

and Fiduciaries Code, Title 20 of the 

Pennsylvania Consolidated Statutes. 

Pennsylvania Supreme Court 

Decision Permits Testamentary 

Trustees to Receive Additional 

Commissions from Principal 

In the case of Estate of Fridenberg 

v. Commonwealth, 2011 Pa. Lexis 2820 

(Pa. Nov. 23, 2011), the Pennsylvania 

Supreme Court affirmed an order 

of the Superior Court holding that 

testamentary trustees who were paid 

a commission on principal for executor 

services prior to 1945 may receive an 

additional commission on principal 

for their services as trustees. Anna 

Fridenberg died testate on March 26, 

1940, and her will provided for funds 

to be held in trust for five named 

individuals and the remainder of the 

net income given to the Jewish Hospital 

Association of Philadelphia. 

Fridenberg’s will appointed an 

individual trustee, Peter N. Goldsmith, 

and Fidelity-Philadelphia Trust 

Company (now, Wachovia) as executors 

of her estate and trustees under the 

will. An accounting was prepared by 

Wachovia and included requests for 

commissions to be paid out of principal 

to Wachovia and Mr. Taylor, an 

individual trustee who was appointed 

to be a replacement for Mr. Goldsmith 

as an individual trustee. The attorney 

general objected to such requests by 

arguing that (i) the law in effect at the 

time the trust was created prevented 

parties that served as both executor 

and trustee from receiving more than 

one commission under principal, and 

(ii) Wachovia was not entitled to a 

commission from principal because its 

predecessor had already received such 

a commission for its services. 

The Orphans’ Court held that 

Wachovia was not entitled to an 

additional commission from principal 

because the law at the time the trust 

was created prohibited more than 

one such commission, despite later 

changes in the law that removed this 

prohibition. Upon Wachovia’s appeal 

the Superior Court reversed the 

Orphans’ Court decision, holding that 

(i) the appropriate law to consider is that 

which was in effect during the period 

for which Wachovia sought payment, 

and (ii) subsequent legislation in recent 

years, particularly Section 7185 of the 

PEF Code, permitted fiduciaries to 

receive more than one commission for 

previously established trusts and was 

constitutional. 

In its affirmation of the Superior 

Court’s decision, the Supreme Court 

declared it would “no longer be bound 

by the considerations that led to the 

decision in Williamson’s Estate” and 

held Section 7185 of the PEF Code to be 

constitutionally valid. The court held 

that Section 7185 did not violate the 

Fourteenth Amendment’s Due Process 

Clause, because the Legislature had a 

legitimate purpose in ensuring trustees 

received reasonable compensation 

for their services and retroactively 

allowing additional commissions was 

a rational means to accomplish such 

purpose. The Supreme Court held 

Wachovia was therefore entitled to 

receive additional commissions from 

principal. 

Parents of Minors Under 

Age 14 Have Standing to Challenge 

Appointment of Guardian of 

Child’s Estate 

The Pennsylvania Supreme Court 

held that the parent of a minor under 

the age of 14 has standing to challenge 

the appointment of a guardian of the 

minor child’s estate in the case of In re 

Kelsey Lauren Miller, 27 A.3d 987 (Pa. 

2011). 

Born in 1998, Kelsey is the sole 

child of her parents, who later divorced 

and shared joint legal custody of 

Kelsey until her father died intestate 

in April 2007. Her father had named 

Kelsey as the sole beneficiary of a 

group life insurance policy, valued at 

$356,000. Her father’s sister served as 

administratrix of the estate and filed 

a petition for the appointment of a 

limited guardian of Kelsey’s estate, 

naming the administratrix’s attorney 

as guardian. The petition also included 

a proposed irrevocable trust agreement 

in accordance with which the life 

insurance proceeds would be held and 

administered by the father’s sister and 

Irwin Bank and Trust Company, as 

trustees. 

Kelsey’s mother objected to petition 

appointing a guardian of the estate on 

several grounds. The Orphans’ Court 

granted the order appointing the 

administratrix’s attorney as guardian 

of Kelsey’s estate, to which Kelsey’s 

mother filed timely exceptions as well 

as a statement of matters complained 

of on appeal pursuant to Pennsylvania 

Rule of Appellate Procedure 1925(b), 

as requested by the Orphans’ Court. 

The Orphans’ Court, in its Rule 1925 

Opinion, held that the appeal should 

be denied because Kelsey’s mother was 

not a party in interest and therefore did 

not have standing. The Superior Court 

affirmed the Rule 1925 Opinion of the 

Orphans’ Court, stating that Kelsey’s 

mother did not have standing by virtue 

of her status as the minor’s mother. 

Reversing the order of the Superior 

Court, the Supreme Court reaffirmed 

its position in Senseman’s Appeal, an 

1853 Pennsylvania Supreme Court 

decision holding that a father had a 

right to be heard in matters related 

to the appointment of a guardian 

of his child’s estate because of his 

parental duty to maintain and protect 

his child’s interests. (Senseman’s 

Appeal, 21 Pa. 331, 333 (Pa. 1853)). The 

Supreme Court further provided that 

a parent has a substantial, direct and 

immediate interest in the appointment 

of an appropriate guardian of his/her 

child’s estate, regardless of the fact 

that a parent has no right to his/her 

child’s estate, because “to deny Mother 

standing in proceedings regarding 

the appointment of a guardian for her 

minor child, be it a guardian of the 

minor’s person or estate, would be to 

erect obstacles to the fulfillment of her 

parental duty to protect her child’s 

interests.” 

Pennsylvania Supreme Court Holds 

That ERISA Pre-empts Section of 

PEF Code Regarding Ineffectiveness 

of Designations of Former Spouses 

Following Divorce 

In the case of In re Estate of Sauers, 

2011 WL 5865755, 2011 Pa. Lexis 2832 

(Pa. Nov. 23, 2011), the Pennsylvania 

Supreme Court held that the federal 

Employee Retirement Income Security 

Act (“ERISA”) pre-empts Section 6111.2 

of the PEF Code. 

In 1998, Paul Sauers III, the 

decedent, designated his spouse as the 

primary beneficiary of his employee 

group benefit life insurance policy 

and his nephew as the contingent 

beneficiary. The decedent and his 

spouse divorced in 2002, and the 

decedent died in 2006 without 

changing his beneficiary designations 

for the life insurance policy. 

The administrator of the 

decedent’s estate filed a petition for 

rule to show cause requesting that the 

ex-spouse surrender the proceeds to 

the decedent’s nephew as contingent 

beneficiary, citing Section 6111.2 

of the PEF Code, which provides 

that “any designation in favor of [a 

decedent’s] former spouse which was 

revocable by [the decedent] after the 

divorce shall become ineffective for all 

purposes and shall be construed as if 

such former spouse had pre-deceased 

[decedent]…” The ex-spouse filed a 

motion to dismiss the petition for rule 

to show cause, arguing that ERISA 

mandates that proceeds of the policy 

be paid to the primary beneficiary 

of the policy, regardless of any state 

statute to the contrary. The Orphans’ 

Court denied the ex-spouse’s motion 

to dismiss, holding that the ERISA did 

not pre-empt Section 6111.2 because the 

“prior restraint” clause of Section 6111.2 

provides that plan administrators or 

fiduciaries cannot be held liable for 

making payments to former spouses 

which would have been proper in the 

absence of Section 6111.2. 

The ex-spouse appealed to the 

Superior Court, which affirmed the 

Orphans’ Court decision en banc, 

agreeing with the reasoning of the 

Orphans’ Court. Judge Mary Jane 

Bowes of the Superior Court concurred 

in part and dissented in part, arguing 

that most of Section 6111.2 was preempted 

by ERISA. 

The Supreme Court reversed the 

order of the Superior Court, holding 

that ERISA pre-empts Section 6111.2 

of the PEF Code. The court followed 

the decision of Egelhoff v. Egelhoff, 532 

U.S. 141 (2001), reasoning that the 

Pennsylvania statute interfered with 

ERISA’s primary goal of uniform 

administration of employee benefit 

plans nationwide. The Supreme 

Court further reasoned that the “prior 

restraint” clause of Section 6111.2 failed 

to save the statute from pre-emption, 

because the clause gave Pennsylvania 

courts the power to mandate that a plan 

administrator not follow the provisions 

of ERISA while simultaneously 

exposing the same plan administrator 

to liability in federal court for failure to 

follow federal law. In this same vein, 

the court noted that ERISA does not 

provide immunity protection if a plan 

administrator fails to fulfill its fiduciary 

obligations, as those obligations are 

defined by federal law. 

Pennsylvania Family Caregiver 

Support Act Amended 

On Dec. 22, 2011, the governor 

approved House Bill 210 (Act No. 112). 

This bill updates the Pennsylvania 

Family Caregiver Support Act to 

increase maximum reimbursement 

amounts for primary caregivers. 

The bill also removed two previous 

requirements that (i) a caregiver be 

related to the care receiver and (ii) live 

in the same home as the care receiver. 

The “relation” requirement was 

removed by amending the definition 

of “primary caregiver” to remove the 

word “relative” and substituting in its 

place the phrase “the one identified 

adult family member or other individual 

who has assumed the primary 

responsibility for the provision of 

care…” (emphasis added). The bill 

also eliminated the previous wording 

defining a caregiver as one who “lives 

in the same residence with [the care 

receiver] on a continuous basis.” 

Additionally, the bill provides for 

a primary caregiver support program 

by giving priority of receipt of state 

lottery funds to primary caregivers 

who provide care for functionally 

dependent older adults and adults age 

60 or older with chronic dementia. The 

act will take effect within 60 days of the 

governor’s signature. 

House Bill 1864 Exempting Certain 

Transfers of Agricultural Property 

From Inheritance Tax Under 

Consideration by Senate 

Introduced on Sept. 26, 2011, 

House Bill 1864 proposes to amend the 

Tax Reform Code of 1971 by exempting 

certain transfers of property from 

inheritance tax. Specifically, transfers 

of an “agricultural commodity, 

agricultural conservation easement, 

agricultural reserve, agricultural use 

property or a forest reserve” would be 

exempt from inheritance tax if those 

transfers were to a lineal descendant or 

sibling. This exemption would apply to 

all estates of decedents dying after June 

30, 2011. On Dec. 12, 2011, House Bill 

1864 passed in the House 190-1 and is 



20 

21 

Winter 2012

ARTICLE: 

Recent Updates in Probate 

and Trust Law 


currently referred to the Senate Finance 

Committee. 

Senate Bill Introduced in Response 

to Vine v. Commonwealth State 

Employees’ Retirement Board 

Decision Still Under Consideration 

in Senate 

Senate Bill 1092 was introduced 

on June 3, 2011, in response to the 

Pennsylvania Supreme Court’s 

decision in Vine (9 A.3d 1150 (Pa. 

2010)). As extensively discussed in 

the summer 2011 legislative updates 

section of this newsletter, the Supreme 

Court in Vine held that the State 

Employees’ Retirement System was 

not immune from liability by honoring 

a durable power of attorney which 

the Supreme Court held to be invalid 

because the principal did not have 

capacity at the time of its execution. 

The practical effect of the Vine decision 

is that to avoid liability, third parties 

would have to independently conduct 

an investigation into the capacity of a 

principal at the time of execution when 

presented with a power of attorney 

that appears valid on its face. This 

bill would effectively reverse the Vine 

decision by providing that a third 

party who acts in good faith upon a 

power of attorney is immune from 

liability. The bill would also provide 

new requirements for the execution of 

powers of attorney, including requiring 

two witnesses when a power of 

attorney is signed. The bill is out of the 

Senate’s Judiciary Committee and as of 

Dec. 7, 2011, is under consideration by 

the Senate. 

Supreme Court Approves Revised 

Petition for Grant of Letters 

The Pennsylvania Supreme Court 

approved the revised Form RW-02 

(Petition for Grant of Letters) on Oct. 11, 

2011, with an effective date of Nov. 10, 

2011. All Registers of Wills offices in the 

commonwealth should be accepting 

the new form pursuant to Pennsylvania 

Supreme Court Orphans’ Court Rule 

1.3. Although some Registers of Wills 

may continue to use other forms 

adopted under local rule, the new Form 

RW-02 should be accepted throughout 

the commonwealth. 

Department of Revenue Allows 

15-Month Suspension Period for 

Real Estate Valuations 

Pennsylvania Department of 

Revenue Tax Update Number 158, 

October/November 2011 clarifies that 

the department will allow an estate 

to suspend the valuation of real estate 

for up to 15 months after a decedent’s 

date of death for purposes of 

calculating inheritance tax. Previously, 

the department had not specified a 

timeline during which a suspended 

valuation would be accepted. 

Pennsylvania’s inheritance tax law 

dictates that the value of real property 

for inheritance tax purposes is the value 

as of the date of death of the decedent. 

Because this value can be difficult to 

establish absent an arms-length sale, 

the department will now permit a 

personal representative to timely file 

an otherwise-complete Inheritance Tax 

Return and request that the valuation 

of real estate be suspended until the 

value of the property is determined at 

sale. 

It is important to note, however, 

that if the property is not sold within 15 

months of the date of death, the estate 

will need to report a value by another 

means – such as a professional appraisal 

or the common level ratio value. In 

light of the current housing market, it 

may be advisable to recommend that 

personal representatives procure an 

appraisal to preserve a date-of-death 

value should the property not sell. 

Personal representatives will also 

have the option of reporting a date 

of death value on the Inheritance Tax 

Return and paying the inheritance tax 

due within the general nine-month 

timeline. Should the property sell for 

a lesser value within 15 months of the 

decedent’s date of death, the estate 

may request a refund of any overpaid 

tax. • 

Melissa Dougherty is an associate and 

member of the Estates and Trusts Group 

with the firm of Cohen & Grigsby PC in 

Pittsburgh. 

Lawyers Concerned for Lawyers 

Confidential assistance to lawyers, judges and their families for 

problems with alcohol, other drugs, gambling, stress, anxiety, 

depression, etc. 

LCL Confidential Lawyers Helpline 

(888) 999-1941 

UPDATE: 

Winter 2012 Legislative Update 

By Steven B. Loux 

PBA Legislative Counsel 

The PBA Legislative Department seeks to 

inform section members about adopted or 

pending legislation that affect our practice 

areas. The section encourages members to 

express opinions regarding any pending 

legislation’s importance or impact by 

contacting appropriate legislators, the 

PBA Legislative Department or the leaders 

of the section. To obtain copies of any act 

cited below, please e-mail Steven Loux at 

steven.loux@pabar.org, call him at 1-800- 

932-0311, ext. 2246, or directly access bills 

and other legislative information online at 

www.legis.state.pa.us. 

NEW LAW 

Disclosure of Vital Statistic Records, 

Act 110 of 2011 (SB 361) – This act 

amends the Vital Statistics Law, further 

providing for disclosure of records 

by adding that when 105 years have 

elapsed after the date of birth or 50 

years have elapsed after the date of 

death, the vital statistic records of the 

Department of Health and of local 

registrars shall become public records. 

To ensure the proper safekeeping of 

original birth records after 105 years 

and death records after 50 years, the 

records shall be maintained by the 

State Archives. 

Philadelphia Affordable Housing 

Programs Fee Amendment, Act 114 

of 2011 (HB 639) – This act amends 

Title 53 (Municipalities Generally) 

to remove the date requirement for 

fee determination in charges that 

can be levied by a governing body of 

Philadelphia in regard to the affordable 

housing programs fee. 

LEGISLATION 

Below find bills by topic that were not 

in the previous Legislative Update, or 

were included in that Update and have 

since progressed in the House or Senate. 

Unless otherwise noted, reference to a 

committee means a House committee 

for House bills, a Senate committee for 

Senate bills. Unless otherwise noted, 

the PBA has no position on the listed 

legislation and is providing each bill 

summary for informational purposes 

only. All dates refer to 2011 unless 

otherwise specified. 

Abolishing Assessors 

SB 725, sponsored by Sen. John R. 

Gordner (R-Columbia, Dauphin, 

Luzerne, Montour, Northumberland 

and Snyder), amends the Borough 

Code to abolish the office of Borough 

Assessor and to remove references to 

the same. The bill passed the Senate 

49-0 on Sept. 26 and received first 

consideration in the House on Dec. 6. 

SB 726, sponsored by Sen. Mike Folmer 

(R-Berks, Chester, Dauphin, Lancaster 

and Lebanon), amends the First Class 

Township Code to make editorial 

changes and abolish the positions 

of township assessors and assistant 

township assessors. The legislation 

removes other references to said 

positions. The bill passed the Senate 

39-0 on Sept. 26 and received first 

consideration in the House on Dec. 6. 

Landlord-Tenant 

HB 415, sponsored by Rep. Chelsa 

Wagner (D-Allegheny), amends the 

Taxpayer Relief Act to prohibit a 

landlord and tenant from entering into 

an agreement assigning the tenant’s 

rent rebate to the landlord, their 

representative or assignee. The bill 

was referred to the Consumer Affairs 

Committee on Feb. 3, was reported 

from the Consumer Affairs Committee 

with request to re-refer the bill to the 

Urban Affairs Committee on June 15, 

was re-referred to the Urban Affairs 

Committee on June 15, was reported 

as amended from the Urban Affairs 

Committee on Nov. 2, and then received 

first consideration in the House. 

SB 887, sponsored by Sen. Patrick 

M. Browne (R-Lehigh, Monroe and 

Northampton), amends The Landlord 

and Tenant Act of 1951, providing for 

disposition of abandoned personal 

property by adding that at the time 

a tenant has relinquished possession 

of the real property, the tenant shall 

remove from the premises all items 

of the tenant’s personal property. 

Upon relinquishment, the tenant shall 

have 10 days to contact the landlord 

regarding the tenant’s intent to remove 

any personal property remaining on 

the premises. If the intent is conveyed 

to the landlord, the personal property 

shall be retained by the landlord at a site 

of the landlord’s choosing for 30 days. 

If no communication is made to the 

landlord within 10 days, the property 

may be disposed of at the end of the 10 

days at the discretion of the landlord. 

The bill provides for the disposition 

of personal property remaining on the 

premises following relinquishment 

and duties of the landlord relative 

to that personal property. After the 

appropriate time period has expired, 

the landlord shall have no further 

responsibility to the former tenant 

with regard to the personal property 

and may, in the landlord’s discretion, 

dispose of the property. The bill passed 

the Senate 49-0 on Oct. 25 and was then 

referred to the House Urban Affairs 

Committee. 

SB 1105, sponsored by Sen. LeAnna 

M. Washington (D-Montgomery 

and Philadelphia), amends The 

Landlord and Tenant Act, providing 

that nothing in Article V-A (relating 

to tenement buildings and multiple 

dwelling premises) shall be construed 

to authorize the removal of a 

lessee or tenant or the assigns or legal 

representatives of such lessee or tenant 

from any tenement building, apartment 

or multiple dwelling premises or land 

leased for residential purposes based 

upon such person’s status as a victim 

of domestic violence, sexual assault or 



22 

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UPDATE: 



stalking. Definitions are provided. The 

bill was referred to the Urban Affairs 

and Housing Committee on July 25. 

SB 1106, sponsored by Washington, the 

Domestic Violence Safe Housing Act, 

prohibits a landlord from terminating 

or failing to renew tenancy based upon 

an act of domestic violence, sexual 

assault or stalking against a protected 

tenant or household member. The act 

outlines findings related to domestic 

violence, provides for definitions of 

terms and provides for landlord and 

tenant duties with regard to restrained 

persons. The bill was referred to the 

Urban Affairs and Housing Committee 

on July 25. 

HB 1526, sponsored by Rep. Stanley 

E. Saylor (R-York), amends The 

Landlord and Tenant Act, providing 

for the collection of rent upon death of 

a tenant. The bill adds a new section 

providing that if the deceased tenant 

is the sole tenant of the residential 

unit, the executor or administrator of 

the estate of a tenant who dies during 

the term of a residential lease shall 

have the option to terminate the lease 

upon 14 days written notice to the 

landlord on the later of: the last day of 

the calendar month that immediately 

follows the calendar month in which 

the tenant died; or upon surrender of 

the rental unit and removal of all of 

the tenant’s personal property. The bill 

further provides that nothing in this 

section shall be construed to relieve 

the tenant’s estate of liability for rent 

money or any other debt incurred 

prior to the date of termination of 

the lease, including any expenses the 

landlord may incur as a direct result 

of the tenant’s death. The legislation 

also provides that the tenant’s estate 

shall not be liable for damages or any 

other penalty for breach or inadequate 

notice as a result of terminating the 

lease. The bill passed the House 192- 

0 on Nov. 16 and was then referred to 

the Senate Urban Affairs and Housing 

Committee. 

Mechanics’ Lien Law Amendments 

HB 710, sponsored by Rep. Robert W. 

Godshall (R-Montgomery), amends 

§ 301 of the act (relating to right to 

lien; amount), further providing that 

notwithstanding any other provision 

of this act, if the contractor has been 

paid in full, a subcontractor may not 

file a claim against residential property 

unless the owner provides a written 

waiver to the subcontractor to file 

a claim. The bill was referred to the 

Consumer Affairs Committee on Feb. 

16, was reported from the Consumer 

Affairs Committee with request to 

re-refer to the Labor and Industry 

Committee on Oct. 31 and was then 

re-referred to the Labor and Industry 

Committee. HB 1602, sponsored by 

Rep. Thomas H. Killion (R-Chester and 

Delaware), amends the law, adding 

similar language to § 301 that provides 

that a subcontractor shall lose the right 

to a lien with respect to an improvement 

to a residential property when the 

owner has paid the full contract price 

to the contractor. HB 1602 also includes 

other changes to the act: Section 501 

(relating to formal notice) is amended 

to provide the owner or agent of the 

owner the option of filing of a notice of 

commencement with the prothonotary 

of the court of common pleas in the 

judicial district in which the project is 

located prior to commencing labor or 

work or furnishing materials for an 

improvement on real property that may 

give rise to a mechanics’ lien under this 

act. Section 508 (relating to priority 

of lien) is amended to add any lien 

obtained under this act by a contractor 

or subcontractor shall be subordinate 

to the refinance or modification of a 

purchase money mortgage as defined 

in 42 Pa.C.S. § 8141(1) (relating to 

time from which liens have priority) 

or open-end mortgage as defined in 

42 Pa.C.S. § 8143(f) (relating to openended 

mortgages) notwithstanding 

that: 1) the new principal amount of 

the mortgage may exceed the stated 

amount of the original mortgage; and 

2) advances made under the mortgage 

may be used for purposes unrelated 

to the cost of completing erection, 

construction, alteration or repair of 

the mortgaged premises. Section 

510 (related to discharge of lien on 

payment into court or entry of security) 

is amended to provide that a claim 

filed under this act with respect to an 

improvement to a residential property 

shall, upon petition or motion to the 

court by the owner or a party in interest, 

be discharged as a lien against the 

property when 1) the owner has paid 

the full contract price to the contractor; 

or 2) the lien shall be reduced to the 

amount of the unpaid contract price 

owed by the owner to the contractor. 

The bill was referred to the Labor and 

Industry Committee on May 25, was 

reported as amended from the Labor 

and Industry Committee on Nov. 14 

and then received first consideration in 

the House. 

Municipal Authorities 

HB 220, sponsored by Rep. Jesse 

White (D-Allegheny, Beaver and 

Washington), amends Title 53, 

in municipal authorities, further 

providing for purposes and powers. 

When an authority approves a project 

in excess of $1 million and is eligible to 

apply for federal or state funding for 

the project that would have the effect of 

offsetting costs to property owners, the 

authority shall apply for the federal or 

state funding and shall provide public 

notice of any federal or state funding 

for which the authority has applied. 

The bill was referred to the Local 

Government Committee on Dec. 13. 

HB 221, sponsored by White, amends 

Title 53, in municipal authorities, 

further providing for purposes and 

powers. The legislation provides that 

for a fee charged under § 5607(d)(24) 

(relating to purposes and powers) that 

is at least $1,000, the property owner 

shall have the option to pay the fee 

under an installment payment plan at 

a fixed rate of interest not to exceed 

5 percent or the interest charged on a 

municipal lien, whichever is greater, 

over a period of between five and 

10 years, which time period shall be 

determined at the sole discretion of the 

authority. The bill was referred to the 

Local Government Committee on Dec. 

13. 

HB 1719, sponsored by Rep. Thomas C. 

Creighton (R-Lancaster), amends Title 

53, in municipal authorities, further 

providing for purposes and powers, 

specifically amending § 5607(d)(23) 

and (30), relating to, respectively, the 

posting of financial security and sewer 

or water system extension. The bill 

was referred to the Local Government 

Committee on June 23. 

HB 1582, sponsored by Rep. John J. 

Taylor (R-Philadelphia), amends Title 

53, in municipal authorities, to provide 

how assessments shall be determined 

by municipal authorities for 

condominiums or single-family homes, 

including those in developments. The 

process for objections for those living 

in the jurisdiction of the authority 

is provided. The bill passed the 

House 202-0 on Oct. 4, received first 

consideration in the Senate on Nov. 15 

and was then re-referred to the Senate 

Appropriations Committee. 

Powers of Attorney—Addressing Vine 

v. Commonwealth, State Employees’ 

Retirement Bd., 607 Pa. 648, 9 A.3d 

1150 (Pa. 2010). 

HB 1905, sponsored by Rep. Mark 

K. Keller (R-Franklin and Perry), 

What is a listserv 

amends Title 20 (Decedents, Estates 

and Fiduciaries), further providing for 

general provisions, for special rules 

for gifts and for liability; providing 

for liability for refusal to accept 

acknowledged power of attorney 

(PoA); and further providing for 

validity. The bill passed the House 

194-0 on Dec. 7 and was then referred 

to the Senate Judiciary Committee. 

The PBA opposes this legislation. SB 

1092, sponsored by Greenleaf, amends 

Title 20, in powers of attorney, further 

providing for general provisions, 

for form of PoA and for liability. The 

bill was referred to the Judiciary 

Committee on June 3, was reported 

from the Judiciary Committee on Oct. 

25 and then received first consideration 

in the Senate. The PBA supports this 

legislation. (In particular, the PBA 

supports: 1) amendment of § 5601 to provide 

for increased safeguards for principals who 

execute PoAs, including the requirement of 

two witnesses (not including the proposed 

agent), acknowledgement by principals 

that their execution is by their free will and 

with sound mind, and formal execution 

by the witnesses and the principal before 

a notary public; 2) amendment of § 

5602 to authorize use of photocopies or 

electronic copies of originally executed 

Your PBA Listserv 

A listserv is an electronic mailing list that allows subscribers to 

exchange information with each other simultaneously. Joining a 

listserv is like having a live conversation with a group, only all 

communication is by e-mail. When you subscribe to a listserv, 

you are able to e-mail all listserv members via just one e-mail 

address. 

To subscribe to the listserv, complete the form on the PBA Web 

site (www.pabar.org). Once subscribed to the listserv you will 

get the following confirmation message: File sent due to actions 

of administrator traci.raho@pabar.org. 

To unsubscribe from the Real Property listserv, send a message 

to listserv@list.pabar.org with “unsubscribe realproperty” in the 

body. To unsubscribe from the Probate & Trust listserv, send a 

message to listserv@list.pabar.org with “unsubscribe probatetrust” 

in the body. 

PoAs with the same effect as the original; 

and 3) amendment of § 5608 to expressly 

provide for immunity for any third party 

who reasonably acts in good faith reliance 

on documents appearing to be valid PoAs, 

and obligating third parties to comply with 

the directions of an agent presenting such 

a PoA.) 

Records 

HB 970, sponsored by Rep. Mark 

Longietti (D-Mercer), the Uniform Real 

Property Electronic Recording Act, 

provides for the validity of electronic 

documents, authorizes county 

recorders of deeds to receive electronic 

documents as a means for recording 

real property, grants powers and 

duties to the county recorders of deeds, 

establishes the Electronic Recording 

Commission and prescribes standards 

of uniformity. The bill passed the 

House 197-0 on Dec. 20. The PBA 

supports this legislation. 

HB 1453 and SB 987, sponsored, 

respectively, by Rep. Chris Ross 

(R-Chester) and Sen. Edwin B. 

Erickson (R-Chester and Delaware), 

are similar bills amending 42 Pa.C.S. 

§ 4323 (relating form or permanent 


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To send a message to members of the Real Property listserv, 

address your e-mail to realproperty@list.pabar.org. To send a 

message to members of the Probate & Trust listserv, address 

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go to the sender and also to the entire listserv membership. 

For customer service, contact Traci Raho, PBA Internet coordinator, 

800-932-0311, ext. 2255. 


24 

25 

Winter 2012

UPDATE: 



recordation) further providing for 

form of permanent recordation and 

for copies of destroyed records. HB 

1453 provides that in general, records 

may be reproduced in accordance with 

the means of reproduction specified. 

The bill also provides that records 

which are classified as records of 

permanent value may be reproduced 

in accordance with the means of 

reproduction specified provided that if 

the original record is being destroyed 

after reproduction: 1) the reproduction 

format shall be human readable; 

or 2) if the reproduction format is 

electronic or otherwise not human 

readable, the governing authority, in 

consultation with the county records 

committee, shall create and apply 

standards, policies and procedures 

for the creation, maintenance, backup, 

migration and transmission of 

permanent records in that format. The 

means of reproduction are specified as 

follows: any photostatic, photographic, 

micrographic, microfilm, microcard, 

miniature photographic, optical, 

electronic or other process, analog or 

digital, which accurately reproduces 

the original and forms secure and 

unalterable copies for recording may 

be utilized for reproducing records 

as authorized in accordance with this 

subchapter (regarding disposition of 

obsolete records). SB 987 provides 

that records which are classified as 

records of permanent value shall, 

prior to destruction or other removal 

from the office of the person having 

custody thereof, be processed in 

conformity with general rules so that 

they may be reproduced in accordance 

with the means of reproduction. The 

means of reproduction are specified as 

follows: any photostatic, photographic, 

microphotographic, microfilm, 

microcard, miniature photographic, 

optical, electronic or other process, 

analog or digital, which accurately 

reproduces the original and forms 

secure and unalterable copies for 

recording, storing and reproducing the 

original in accordance with standards, 

policies and procedures for the 

creation, maintenance, transmission 

or reproduction of images of records 

approved by the governing authority 

may be utilized for reproducing records 

as authorized in accordance with this 

subchapter. Both bills 1) provide that 

any document within the scope of § 

4323 and which previously has been 

recorded, copied or recopied also may 

be reproduced by processes authorized 

by § 4323; and 2) amend 42 Pa.C.S. § 

4324 (relating to copies of destroyed 

records) to provide that (in relevant 

part) a copy of any record destroyed or 

disposed of as authorized pursuant to 

this subchapter (regarding disposition 

of obsolete records), or a certified copy 

thereof, if produced in accordance with 

§ 4323 shall be admissible in evidence 

in any matter, and shall have the same 

force and effect as though the original 

record had been produced and proved. 

HB 1453 was referred to the Local 

Government Committee on May 3, 

was reported as amended from the 

Local Government Committee on June 

14, received first consideration in the 

House on June 14, was re-referred to the 

Rules Committee on June 14 and was 

reported from the Rules Committee 

on Sept. 26. SB 987 was referred to the 

Judiciary Committee on April 25. 

Taxes 

HB 86 and HB 1464, virtually identical 

bills sponsored, respectively, by Rep. 

Anthony M. DeLuca (D-Allegheny) and 

Rep. Neal P. Goodman (D-Schuylkill), 

amend the Tax Reform Code (TRC) 

repealing Pennsylvania’s inheritance 

tax. HB 86 was referred to the Finance 

Committee on Jan. 19, and HB 1464 

was referred to the Finance Committee 

on June 6. 

HB 358 and HB 1614, identical bills 

sponsored by, respectively, Rep. 

RoseMarie Swanger (R-Lebanon) and 

Rep. Gordon Denlinger (R-Lancaster), 

and HB 443 and HB 1292 sponsored, 

respectively, by Rep. Scott A. Petri 

(R-Bucks) and Rep. Scott Perry 

(R-Cumberland and York), amend the 

TRC phasing out the inheritance tax. 

HB 358 was referred to the Finance 

Committee on Feb. 1; HB 1614 was 

referred to the Finance Committee 

on June 2; HB 443 was referred to the 

Finance Committee on Feb. 4; and 


Committee on April 6. 

HB 406, sponsored by DeLuca, amends 

the TRC, decreasing the inheritance 

tax rate upon the transfer of property 

passing to or for the use of a sibling to 

6 percent from 12 percent. The bill was 

referred to the Finance Committee on 

Feb. 2. 

HB 592 and SB 593, identical bills 

sponsored by, respectively, Rep. 

Michael E. Fleck (R-Blair, Huntingdon 

and Mifflin) and Sen. Jay Costa 

(D-Allegheny), amend the TRC by 

exempting from the realty transfer tax 

a transfer between a stepparent and a 

stepchild or the spouse of the stepchild. 


Committee on Feb. 10, was reported 

from the Finance Committee on Oct 19 


the House. SB 593 was referred to the 

Finance Committee on Feb. 18. 

HB 697, sponsored by DeLuca, amends 

the TRC, changing the inheritance tax 

rate as follows beginning on Jan. 1, 2012: 

1) inheritance tax upon the transfer of 

property passing from the estate of a 

decedent dying on or after Jan. 1, 2012, 

to or for the use of a father, mother, 

child or grandchild shall be at the rate 

of 2.25 percent; and 2) inheritance tax 

upon the transfer of property passing 

from the estate of a decedent dying on 

or after Jan. 1, 2012, to transferees not 

included in 1) shall be at the rate of 7.5 

percent. The bill was referred to the 

Finance Committee on Feb. 15. 

HB 761, sponsored by Rep. Bryan 

Cutler (R-Lancaster), amends the 

TRC, in realty transfer tax, further 

providing for definitions, for excluded 

transactions and for acquired company. 

The legislation covers family farm 

businesses. The bill passed the House 

191-0 on Dec. 12 and was then referred 

to the Senate Finance Committee. 

SB 746, sponsored by Sen. Dominic 

Pileggi (R-Chester and Delaware), 

also covering family farm businesses, 

amends the TRC, in realty transfer tax, 

further providing for definitions, for 

excluded transactions, for documents 

relating to associations or corporations 

and members, partners, stockholders 

or shareholders thereof and for 

acquired company; and, in inheritance 

tax, further providing for transfers not 

subject to tax. The bill was referred 

to the Finance Committee on March 

7, was reported as amended from the 

Finance Committee on Oct. 26, received 

first consideration in the Senate on 

Oct. 26 and was then re-referred to the 


HB 1103, sponsored by Rep. Dan Moul 

(R-Adams and Franklin), amends the 

TRC, adding that the inheritance tax 

only applies to transfers that exceed 

$250,000. The bill was referred to the 

Finance Committee on March 17. 

HB 1466, sponsored by Goodman, 

amends the TRC further providing that 

no inheritance tax shall be imposed 

on the first $100,000 of value of any 

property subject to the inheritance tax 

transferred or passing to or for the use 

of anyone. The bill was referred to the 

Finance Committee on June 6. 

HB 1586, sponsored by Rep. Scott 

W. Boyd (R-Lancaster), amends the 

TRC, in inheritance tax, specifically 

72 P.S. § 9147 (regarding the duties of 

depositories), adding that the financial 

institution shall notify the Department 

of Revenue of the relationship of the 

survivor(s) to the deceased. The bill was 


May 24, was reported from the Finance 

Committee on June 22, received first 

consideration in the House on June 22, 

was re-referred to the Rules Committee 

on June 22 and was reported from the 

Rules Committee on Sept. 26. 

HB 1687, sponsored by Rep. Michele 

Brooks (R-Crawford, Lawrence and 

Mercer), amends the TRC, reducing by 

50 percent the inheritance tax rates for 

the transfer of property. The bill was 


June 17. 

HB 1780, sponsored by Rep. Carl Walker 

Metzgar (R-Bedford and Somerset), 

amends the TRC further providing 

for inheritance tax by eliminating the 

tax upon the transfer of property to 

or for the use of a child 21 years old 

or younger from a natural parent, an 

adoptive parent or a stepparent of 

the child. The bill was referred to the 

Finance Committee on July 18. 

HB 1812, sponsored by Rep. William 

F. Adolph, Jr. (R-Delaware), amends 

the TRC, in the inheritance tax, further 

providing for returns by adding 

that a person may file a document 

affirming no tax liability in place of a 

return if the transfer subject to the tax 

imposed pursuant to § 2106 (relating 

to imposition of tax) is imposed at a 

rate of zero percent pursuant to § 2116 

(relating to inheritance tax). The bill 


on Aug. 22. 

HB 1828, sponsored by Rep. Babette 

Josephs (D-Philadelphia), amends the 

TRC, in inheritance tax, to provide a 

definition of “domestic partnership” 

and to eliminate the inheritance tax 

upon the transfer of property passing 

to or for the use of an individual in a 

domestic partnership for estates of 

decedents dying on or after Jan. 1, 2012. 

The bill was referred to the Finance 

Committee on Sept. 13. 

HB 1864, sponsored by Rep. Stephen 

Bloom (R-Cumberland), amends the 

TRC, exempting from the inheritance 

tax a transfer to lineal descendants or 

siblings of an agricultural commodity, 

agricultural conservation easement, 

agricultural reserve, agricultural use 

property or a forest reserve. The bill 

passed the House 190-1 on Dec. 12 and 

was then referred to the Senate Finance 

Committee. 

SB 1150, sponsored by Sen. Lloyd K. 

Smucker (R-Lancaster and York), the 

Historic Rehabilitation Investment 

Incentive Act, provides for a tax credit 

against qualified tax liability in an 

amount equal to 25 percent of qualified 

expenditures incurred by a qualified 

taxpayer pursuant to a qualified 

rehabilitation plan. Tax credits may 

not exceed an annual aggregate of 

$10 million. Credits allowed to any 

qualified historic structure owner shall 

not exceed $500,000 in any fiscal year in 

which tax credits shall be allowed. The 

geographic distribution shall be taken 

into account when implementing the $10 

million limit. Application process and 

procedure regarding obtainment of the 

credits is provided. The Pennsylvania 

Historical and Museum Commission 

and Department of Community and 

Economic Development must jointly 

approve the tax credit application. 

A related repeal is provided. The bill 


on June 26, was reported as amended 

from the Finance Committee on Oct. 

26, received first consideration in the 

Senate on Oct. 26 and was then rereferred 

to Appropriations. 

SB 1201, sponsored by Folmer, amends 

the TRC to provide a definition of a 

“child with disability,” and provide 

that transfers to such a child upon 

death of a parent, adoptive parent or 

stepparent shall have an inheritance 

tax rate of zero. The bill was referred to 

the Finance Committee on Aug. 2, was 

reported as amended from the Finance 

Committee on Nov. 16, received first 

consideration in the Senate on Nov. 

16 and was then re-referred to the 


SB 1280, sponsored by Sen. Wayne 

D. Fontana (D-Allegheny), provides 

for a temporary moratorium of courtordered 

countywide reassessments. 

No local taxing authority may 

undertake, on or after the effective 

date of the bill, the process of a courtordered 

countywide reassessment of 

real property for purposes of levying 

property taxes; however, counties 

currently conducting a court-ordered 

countywide reassessment as of the 

effective date of this section may, at the 

discretion of the county, continue the 

process. The prohibition shall remain 

in effect until the General Assembly 

has enacted legislation to address the 

method of property tax assessment or 

until Nov. 30, 2012, whichever comes 

first. The bill was referred to the 



26 

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Finance Committee on Oct. 3. (The bill 

is virtually identical to HB 166.) 

Trusts and Estates 

HB 1324, sponsored by Rep. Richard 

R. Stevenson (R-Butler and Mercer), 

amends Title 20, further providing for 

settlement of small estates on petition 

and for estates not exceeding $25,000. 

The bill amends § 3102 (relating to 

settlement of small estates on petition), 

changing gross value not exceeding 

$25,000 to $50,000. The legislation also 

amends § 3531 (relating to estates not 

exceeding $25,000) changing $25,000 to 

$50,000. The bill passed the House 198- 

0 on Oct. 18 and was then referred to 

the Senate Judiciary Committee. The 

PBA supports this legislation. 

Miscellaneous 

HB 398, sponsored by Stevenson, the 

Appraisal Management Company 

Registration Act, provides for 

registration of appraisal management 

companies, for powers of the State Board 

of Certified Real Estate Appraisers 

with respect to appraisal management 

companies, for the responsibilities 

and duties of appraisal management 

companies, for prohibited activities, 

for discipline and for penalties. The 

bill passed the House 189-5 on May 2 

and received second consideration as 

amended in the Senate on Dec. 13. 

HB 973, sponsored by Rep. Deberah 

Kula (D-Fayette and Westmoreland), 

amends the Vital Statistics Law, further 

providing for definition and providing 

for disposition of cremated remains of 

veterans. The bill passed the House 

195-0 on June 24 and was then referred 

to the Senate Consumer Protection and 

Professional Licensure Committee. 

HB 1182, sponsored by Rep. Kate M. 

Harper (R-Montgomery), amends the 

Manufactured Home Community 

Rights Act, further providing for 

definitions, for written leases and 

for disclosure of fees, and making 

editorial changes. The bill was referred 

to the Consumer Affairs Committee 

on March 23, was reported from the 

Consumer Affairs Committee with 

request to re-refer to the Urban Affairs 

Committee on April 6, was re-referred 

to the Urban Affair Committee on 

April 6, was passed over by the Urban 

Affairs Committee on April 13 and was 

then amended by the Urban Affairs 

Committee on Nov. 2 and held in the 

committee. 

HB 1682, sponsored by Taylor, amends 

Title 68 (Real and Personal Property), 

providing for the creation of land 

banks for the conversion of vacant 

or tax delinquent properties into 

productive use. The bill was referred to 

the Urban Affairs Committee on June 

17, was reported as amended from the 

Urban Affair Committee on Dec. 15 


the House. 

HB 1701, sponsored by Cutler, amends 

The Administrative Code establishing 

the State Geospatial Coordinating 

Council. The bill was referred to 

the Veterans Affairs and Emergency 

Preparedness Committee on June 

21, was reported from the Veterans 

Affairs and Emergency Preparedness 

Committee on Dec. 6 and then received 

first consideration in the House. The 

PBA supports this legislation. 

HB 1702, sponsored by Rep. Mauree 

Gingrich (R-Lebanon), re-enacts and 

amends The Borough Code. The bill 

passed the House 190-4 on Dec. 19 and 

was then referred to the Senate Local 

Government Committee. 

HB 1845, sponsored by Rep. Tina 

M. Davis (D-Bucks), amends the 

Loan Interest and Protection Law 

providing for a single point of contact 

for a residential mortgage debtor 

by requiring a residential mortgage 

lender to assign one case manager to 

each residential mortgage debtor. The 

legislation specifies the criteria an 

individual must meet to be assigned 

as a case manager, authorizes the 

assignment of an employee to assist 

the case manager, and provides that in 

no event shall a residential mortgage 

debtor be without a case manager. 

The bill was referred to the Finance 

Committee on Sept. 19. 

HB 1926, sponsored by Rep. 

Joseph Preston, Jr. (D-Allegheny), 

amends Titles 15 (Corporations & 

Unincorporated Associations) & 66 

(Public Utilities). With respect to Title 

15, the bill changes the definition of 

“public utility corporation” in § 1103 

(relating to definitions) to any domestic 

or foreign corporation for profit that is 

subject to regulation as a public utility 

by the Pennsylvania PUC, FCC or 

FERC. The bill also prohibits a public 

utility corporation from condemning 

property for the purpose of the 

gathering of natural gas by pipeline. 

Moreover, the bill adds that nothing in 

§ 1511 (relating to additional powers 

of certain public utility corporations) 

shall prohibit the Pennsylvania PUC 

from imposing conditions limiting the 

eminent domain power of a public 

utility corporation. With respect to 

Title 66, the legislation amends § 1104 

(relating to certain appropriations by 

right of eminent domain prohibited), 

specifying that as used in § 1104, the 

phrase “domestic public utility or 

foreign public utility authorized to 

do business in this Commonwealth” 

shall include, but not be limited to, a 

public utility corporation as defined in 

15 Pa.C.S. § 1103. The bill was referred 

to the Consumer Affairs Committee 

on Oct. 24, was reported as amended 

from the Consumer Affairs Committee 

on Dec. 6 and then received first 

consideration in the House. 

SB 247, sponsored by Pileggi, makes 

numerous amendments to the Rightto-Know 

Law. In particular, the bill 

includes within the definition of 

“personal financial information” forms 

required to be filed with or by any 

taxing authority. Personal financial 

information under the law is exempt 

from access by a requester. The bill 

was referred to the State Government 

Committee on Jan 26. The PBA 

opposes the amendment as worded 

to the definition of personal financial 

information. 

SB 477, sponsored by Browne, amends 

the Pennsylvania Municipalities 

Planning Code, providing for 

compelled removal by adding a new 

section. The following shall apply in 

cases in which an outdoor advertising 

display is lawfully placed on a lot: 1) if 

the land use ordinances in effect at the 

time an outdoor advertising display is 

lawfully placed on a lot do not require 

that the display be removed as a 

condition or prerequisite for concurrent 

use approval, those ordinances, if not 

amended, shall not be subsequently 

applied so as to require that the 

display be removed as a condition 

or prerequisite for concurrent use 

approval; 2) if the land use ordinances or 

amendments adopted after an outdoor 

advertising display has been lawfully 

placed on a lot prohibit concurrent 

use approval, the display shall be 

deemed a preexisting nonconforming 

use with regard to that prohibition 

and as such, the municipality may 

not enforce a subsequently adopted 

provision in the land use ordinance 

which would require that the 

preexisting nonconforming display be 

removed as a condition or prerequisite 

to concurrent use approval; and 3) 

The protections afforded an outdoor 

advertising display under 1) and 2) 

shall not apply if the requested permit, 

license or approval is for construction 

of a building or structure which cannot 

be built without physically removing 

the outdoor advertising display. The 

legislation also provides that the term 

“concurrent use approval” as used in 

this section shall mean the issuance or 

continuance of a permit, license or other 

approval for a particular use, structure, 

development or activity on the lot on 

which the outdoor advertising display 

has been placed. The bill was referred 

to the Local Government Committee 

on Feb. 11, was reported from the 

Local Government Committee on 

Oct. 25, received first consideration 

in the Senate on Oct. 25 and was then 

re-referred to the Appropriations 

Committee. 

SB 747, sponsored by Erickson, the 

Plumbing Contractors Licensure Act, 

provides for plumbing contractors 

licensure; establishes the State Board of 

Plumbing Contractors and provides for 

its powers and duties; confers powers 

and imposes duties on the Department 

of Labor and Industry; establishes 

fees, fines and civil penalties; creates 

the Plumbing Contractors Licensure 

Account; and makes an appropriation. 

The bill passed the House 35-14 on Oct. 

25 and was then referred to the House 

Professional Licensure Committee. 

SB 1141, sponsored by Sen. 

Charles T. McIlhinney, Jr. (Bucks 

and Montgomery), amends the 

Manufactured Housing Improvement 

Act, expanding the coverage of the 

act to relocated housing. The bill was 

referred to the Urban Affairs and 

Housing Committee on June 30, was 

reported as amended from the Urban 

Affairs and Housing Committee on 

Nov. 1, received first consideration 

in the Senate on Nov. 1 and was then 


Committee. 

SB 1234, sponsored by Sen. Timothy J. 

Solobay (D-Allegheny, Beaver, Greene, 

Washington and Westmoreland), 

amends the Pennsylvania Sewage 

Facilities Act, updating references 

to defunct agencies and providing 

that no ordinance of a local agency or 

municipality shall require a permit 

or plan revision for the installation of 

an individual on-lot sewage system 

for a residential structure occupied 

or intended to be occupied by the 

property owner or a member of his or 

her immediate family on a contiguous 

tract of land 100 acres or more. The 

bill was referred to the Environmental 

Resources and Energy Committee on 

Aug. 30. 

SB 1243, sponsored by Sen. Patricia 

H. Vance (R-Cumberland and York), 

amends the Agricultural Area Security 

Law. The legislation amends § 14.1(i)(1) 

(ii) (relating to purchase of agricultural 

conservation easements) as follows: 

convert land which has been devoted 

primarily to agricultural use to another 

primary use, except that a county 

program may permit one subdivision 

for the purpose of the construction of a 

principal residence for the landowner or 

an immediate family member., provided 

that the tract of land so subdivided may not 

exceed two acres and may only be used for 

residential purposes or for agricultural or 

forest reserve as defined under section 2 of 

the “Pennsylvania Farmland and Forest 

Land Assessment Act of 1974.” The bill 

was referred to the Agriculture and 

Rural Affairs Committee on Sept. 13. 

SB 1301, sponsored by Sen. Anthony 

Hardy Williams (D-Delaware and 

Philadelphia), amends Title 53 by 1) 

amending the definition of “board” 

within § 8582 (relating to definitions); 

and 2) by adding § 8588 (relating to 

applicability), which provides that 

notwithstanding the provisions of 

§ 8405 (relating to applicability) the 

provisions of subchapter F (relating to 

homestead property exclusion) shall 

apply to Philadelphia and the School 

District of Philadelphia; and that any 

action taken pursuant to subchapter F 

by the governing body of Philadelphia 

shall apply to the city and to the school 

district. The bill was referred to the 

Finance Committee on Oct. 26, was 

reported as amended from the Finance 

Committee on Nov. 16, received first 

consideration in the Senate on Nov. 16, 

was re-referred to the Appropriations 

Committee on Dec. 7, was reported 

from the Appropriations Committee 

on Dec. 12, and then received 

second consideration in the Senate. 

SB 1334, sponsored by Sen. Donald C. 

White (R-Armstrong, Butler, Clearfield, 

Indiana, and Westmoreland), amends 

the Banking Code further providing 

for additional powers of incorporated 

institutions related to conduct of 

business; and providing for ownership 

of property. The legislation authorizes 

incorporated institutions to invest 

in real estate that is necessary for 

the transaction of their business. 

The bill was referred to the Banking 

and Insurance Committee on Nov. 

14, was reported from the Banking 

and Insurance Committee on Nov. 

15, received first consideration in 

the Senate on Nov. 15 and was then 


Committee. • 


28 

29 

Winter 2012

Real Property, Probate and Trust Law Section 

Leadership 

An Innovative Approach 

to Online Legal Research 

for PBA Members Only 

To join the Pennsylvania Bar Association, 

call the PBA Member Services Center 

1-800-932-0311. 


Information. 

Education. 

Technology. 

Networking. 

Advocacy. 

Practice Support. 

The building blocks of a successful practice. 

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as a member of the Pennsylvania Bar Association. 

Joining is easy. Visit www.pabar.org for more details. 

30 

Bridget M. Whitley, Chair 

Skarlatos & Zonarich LLP 

17 S. 2nd St., Floor 6 

Harrisburg, Pa. 17101-2053 

717-233-1000 

bmw@skarlatoszonarich.com 

Brett M. Woodburn, Vice Chair, 

Real Property Division 

Caldwell & Kearns PC 

3631 N. Front St. 


717-232-7661, ext. 137 

bwoodburn@cklegal.com 

Aubrey Heather Glover, Vice Chair, 

Probate Division 

Cohen & Grigsby PC 

625 Liberty Ave. 

Pittsburgh, Pa. 15222-3152 

412-297-4713 

aglover@cohenlaw.com 

Brett Solomon, Secretary 

Tucker Arensberg PC 

1500 One PPG Place 


412-594-3913, Fax: 412-594-5619 

bsolomon@tuckerlaw.com 

Eric R. Strauss, Assistant Secretary 

Worth Magee & Fisher PC 

2610 Walbert Ave. 

Allentown, Pa. 18104-1852 

610-437-4896 

estrauss@worthlawoffices.com 

Louis M. Kodumal, Treasurer 

Law Offices of Vincent B. Mancini 

414 E. Baltimore Pike 

Media, Pa. 19063-3808 

610-566-8064, Fax: 610-566-8265 

lkodumal@vmancinilaw.com 

Arnold B. Kogan, 

Immediate Past Chair 

Goldberg Katzman PC 

320 Market St., P.O. Box 1268 


717-234-4161, Fax: 717-234-6808 

ABK@goldbergkatzman.com 

Vincent B. Mancini, Section Delegate 

Law Offices of Vincent B. Mancini 

414 E. Baltimore Pike 

Media, Pa. 19063-3808 

610-566-8064, Fax: 610-566-8265 

vmancini@vmancinilaw.com 

COUNCIL MEMBERS: 

Linda Rhone Enion 

Lovett Bookman Harmon Marks LLP 

Fifth Avenue Place 

120 Fifth Ave., Suite 2900 


412-392-2508 

lenion@lbhmlaw.com 

Ronald M. Friedman 

P.O. Box 10362 

State College, Pa. 16805-0299 

814-234-3500 

attyronfriedman@aol.com 

Nancy J. Glidden 

Unruh Turner Burke & Frees PC 

17 W. Gay St., P.O. Box 515 

West Chester, Pa. 19380 

610-692-1371, Fax: 610-918-1361 

nglidden@utbf.com 

Marshal Granor 

Granor & Granor PC 

721 Dresher Road 

Horsham, Pa. 19044-2220 

215-830-1100, ext. 204, 

Fax: 215-830-8599 

Richard M. Heller 

Law Offices of Richard M. Heller 

300 W. State St., Suite 206 

Media, Pa. 19063-2639 

610-565-9260 

richheller@verizon.net 

Jeffrey J. Malak 

Chariton Schwager & Malak 

138 S. Main St., P.O. Box 910 

Wilkes Barre, Pa. 18701-1617 

570-824-3511, Fax: 570-824-3580 

jjm@charitonschwager.com 

Michael Wilson Mills 

Legacy Planning Partners LLC 

600 W. Germantown Pike, St. 261 

Plymouth Meeting, Pa. 19462 

484-534-2654 

mmills@legacy-online.com 

31 

Jennifer Lee Rawson 

Eckert Seamans Cherin & 

Mellott LLP 

600 Grant St., 44th Floor 

Pittsburgh, Pa. 15219 

412-566-6784 

jrawson@eckertseamans.com 

Anna O. Sappington 

P.O. Box 575 

Glenside, Pa. 19038 

215-848-5208 

asappington.esq@comcast.net 

David J. Scaggs 

The Granger Firm 

1800 E. Lancaster Ave. 

Paoli, Pa. 19301-1533 

610-640-7500, Fax: 610-640-7505 

David Max Scolnic 

Hangley Aronchick Segal Pudlin 

& Schiller 

One Logan Square, 27th Floor 

Philadelphia, Pa. 19103-6933 

215-496-7046 

dscolnic@hangley.com 

David E. Schwager, 

Board of Governors Liaison 

Chariton Schwager & Malak 

138 S. Main St., P.O. Box 910 

Wilkes Barre, Pa. 18703-0910 

570-824-3511; Fax 570-824-3580 

des@charitonschwager.com 

Michael Shatto, Staff Liaison 

The Pennsylvania Bar Association 

100 South St., P.O. Box 186 


717-238-6715, ext. 2243, 

Fax: 717-238-7182 

Michael.Shatto@pabar.org 

Amy Kenn, Staff Editor 

The Pennsylvania Bar Association 

100 South St., P.O. Box 186 


717-238-6715, ext. 2217, 

Fax: 717-238-2342 

Amy.Kenn@pabar.org 

Winter 2012

PBA Real Property, Probate and Trust Law Section 

Newsletter 

100 South Street • PO Box 186 


NONPROFIT ORG. 

U.S. POSTAGE 

PAID 

HARRISBURG, PA 

PERMIT NO. 472 

Address Service Requested 

Mark your calendars for these 2012 PBA events 

Conference of County Bar Leaders 

Feb. 23-25 • Lancaster Marriott at Penn Square, 


PBA Minority Attorney Conference 

March 15-16 • Omni William Penn Hotel, Pittsburgh, Pa. 

PBA Statewide Mock Trial Competition 

March 30-31 • Crowne Plaza Hotel and 

Dauphin County Courthouse, Harrisburg, Pa. 

PBA Annual Meeting 

May 9-11 • Lancaster Marriott at Penn Square, 


Check the PBA Events Calendar at www.pabar.org for 

more information, or call the PBA at 800-932-0311.

Real Property, Probate and Trust Law - Pennsylvania Bar Association

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