Estate of: L.E.K., Appeal of: L.E.K.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF THE ESTATE OF: : IN THE SUPERIOR COURT OF
L.E.K. : PENNSYLVANIA
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:
APPEAL OF: L.E.K. :
:
:
:
: No. 576 WDA 2022
Appeal from the Decree Entered April 18, 2022
In the Court of Common Pleas of Bedford County Orphans' Court at
No(s): 2022-00008
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 16, 2022
Appellant, L.E.K., appeals from the April 18, 2022 Order entered in the
Bedford County Court of Common Pleas that adjudicated him incapacitated
and appointed a plenary guardian of his person and estate. Appellant
challenges, inter alia, the sufficiency of the evidence. Upon review, we affirm.
Appellant is 65 years old and has been diagnosed with Parkinson’s
Disease. Appellant lives by himself and, until recently, was receiving home
services from the Huntington-Bedford-Fulton Area Agency on Aging (“the
Agency”). In the summer of 2021, Appellant was hospitalized after several
episodes where he displayed “paranoid delusional” behavior and contacted
state police concerned that someone was robbing him. N.T. Hearing, 4/14/22,
at 19. Appellant was admitted to Maybrook Hills Nursing Facility. On February
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* Retired Senior Judge assigned to the Superior Court.
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8, 2022, the Agency filed a Petition for Adjudication of Incapacity and
Appointment of Plenary Guardian after receiving information from in-home
service providers that it was not safe to send Appellant home, as well as a
written statement on January 5, 2022, from Appellant’s treating physician, Dr.
Carl Werne, stating that he would testify to Appellant’s incompetence. In the
petition, the Agency alleged that Appellant suffers from Parkinson’s Disease
and altered mental status, which cause him to need significant support in his
daily living, including twenty-four-hour care and supervision. The Agency also
attached Dr. Werne’s written statement. On February 9, 2022, the trial court
appointed Karen S. Hendershot, Esquire, to represent Appellant. On March
29, 2022, and March 30, 2022, Catherine S. Spayd, Ph.D., P.C., conducted a
psychological evaluation of Appellant.
On April 14, 2022, the trial court held a guardianship hearing. Appellant
was present at the hearing with Attorney Hendershot. The trial court heard
testimony from Dr. Spayd and Jim Rose, co-manager of the Agency.
In sum, Dr. Spayd testified as an expert in ascertaining a patient’s
current level of cognitive functioning. She explained that she meets with
patients for two separate sessions to get a better clinical sample of behavior,
and to account for instances where a patient is simply having a bad day. Dr.
Spayd explained that she conducted a clinical interview, obtained background
information from the Agency, and reviewed Appellant’s medications and
diagnoses.
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Dr. Spayd also conducted various tests to measure Appellant’s cognitive
functioning, including the Folstein Mini Mental State Examination; Mattis
Dementia Rating Scare; Trail Making Test that measures attention and mental
flexibility and sequencing; California Verbal Learning Test that measures
verbal recall and learning; Boston Naming Test that measures naming
abilities; F-A-S Verbal Fluency Test; Boston Diagnostic Aphasia Evaluation
Complex Ideation sub-test; Wechsler Adult Cognitive Scale; and a Clock
Drawing Test that measures non-verbal problem-solving skills.
Dr. Spayd testified that Appellant demonstrated average functioning in
various areas but had average to severely impaired attention; mildly clinically
impaired non-verbal problem solving and verbal initiation skills; moderate
impairment in the areas of receptive language; and moderate to severely
impaired abstraction and mental flexibility and sequencing ability. Dr. Spayd
testified that she diagnosed Appellant with dementia secondary to his
Parkinson’s Disease and concluded:
[Appellant] is unable to make effective life decisions on his own
due to cognitive deficits. And, therefore, because he had not
established power of attorney [] previously, a plenary
guardianship would be clinically indicated. . . Due to his cognitive
deficits, I recommend twenty-four-hour supervision and
assistance with his daily care.
N.T. Hearing at 12. Finally, Dr. Spayd explained that “a Parkinson’s based
dementia presents differently than, for example, Alzheimer’s based dementia,
which tends to be more apparent to the casual observer. . . . So on a basic
level to [a] observer, yes, I think he would appear mostly intact.” Id. at 15.
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In her expert report, which the Agency entered into evidence, Dr. Spayd
made the following relevant treatment recommendations:
2. Given his currently identified moderate level of neuro-
cognitive disorder, [Appellant] is assessed to currently be
incapable of making good life decisions. Specifically, test
results suggest he is currently unable to consistently attend
to, to recall, or to effectively comprehend information
needed to make important life decisions, to effectively
problem solve or to think abstractly regarding such
decisions, nor to initiate action upon them. Because the
patient has not previously established [Power of Attorney]
documents, plenary guardianship of both person and estate
is thus clinically indicated at this time.
3. Given the current severity level of [Appellant]’s identified
cognitive deficits, 24-hour supervision of and assistance
with his daily activities are clinically indicated at this time,
to assure he accurately takes medications, completes
medical appointments and procedures, receives consistent
nutrition, safely manages appliances, is protected financially
from potential designing persons, and can be assisted in
possible emergency situations. This level of care could be
provided by 24-hour caregivers in his home, or by continued
placement in a long-term residential setting.
Petitioner’s Ex. 1, Psychological Evaluation, at 6.
Mr. Rose, who has been employed by the Agency for six years and
working with Appellant since August 2021, testified to the above events.
Additionally, Mr. Rose testified that Appellant “needs maximum assistance for
his medications” and the assistance of one or two individuals to perform daily
activities. N.T. Hearing at 22. Mr. Rose stated that Appellant is “taking care
of his own finances” and “deals with a credit union in California.” Id. at 23.
Finally, Mr. Rose testified that he has helped Appellant with some minor
financial issues, but Appellant has “tried to stay diligent in trying to pay taxes.
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He even called at the beginning of the year to get certified checks to try to
pay his local taxes.” Id. at 24. Mr. Rose was unaware if the taxes were
actually paid.
At the conclusion of the hearing, the trial court adjudicated Appellant
incapacitated and appointed a plenary guardian of his person and estate.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the lower court have jurisdiction of the person of the
alleged incapacitated person?
2. Was there presentation of clear and convincing evidence
sufficient for a finding that the ability of the alleged
incapacitated person to receive and evaluate information
effectively and communicate decisions in any way was impaired
to such a significant extent that he was totally unable to
manage his financial resources or to meet essential
requirements for his physical health and safety?
3. Did various shortcomings in the proceedings deny the alleged
incapacitated person his basic rights to due process of law?
Appellant’s Br. at 5.
A.
It is well-settled that “[t]he findings of a judge of the orphans’ court
division, sitting without a jury, must be accorded the same weight and effect
as the verdict of a jury, and will not be reversed by an appellate court in the
absence of an abuse of discretion or a lack of evidentiary support.” In re
Jackson, 174 A.3d 14, 23 (Pa. Super. 2017) (citation omitted). “This rule is
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particularly applicable to findings of fact which are predicated upon the
credibility of the witnesses, whom the judge has had the opportunity to hear
and observe, and upon the weight given to their testimony.” Id. (citation
omitted). This Court’s “task is to ensure that the record is free from legal
error and to determine if the [o]rphans’ [c]ourt’s findings are supported by
competent and adequate evidence and are not predicated upon capricious
disbelief of competent and credible evidence.” Id. (citation omitted)
Consequently, “[o]ur review of the trial court’s determination in a
competency case is based on an abuse of discretion standard, recognizing, of
course, that the trial court had the opportunity to observe all of the witnesses,
including, as here, the allegedly incapacitated person.” In re Hyman, 811
A.2d 605, 608 (Pa. Super. 2002). “An abuse of discretion exists when the
trial court has rendered a judgment that is manifestly unreasonable, arbitrary,
or capricious, has failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will.” Harman ex rel. Harman v. Borah, 756 A.2d
1116, 1123 (Pa. 2000). Notably, for an appellant to establish an abuse of
discretion, it “is not sufficient to persuade the appellate court that it might
have reached a different conclusion under the same factual situation.”
Fancsali v. Univ. Health Ctr. of Pittsburgh, 761 A.2d 1159, 1162 (Pa.
2000).
Under Pennsylvania law, an incapacitated person is “an adult whose
ability to receive and evaluate information effectively and communicate
decisions in any way is impaired to such a significant extent that he is partially
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or totally unable to manage his financial resources or to meet essential
requirements for his physical health and safety.” 20 Pa.C.S. § 5501. “The
court, upon petition and hearing and upon the presentation of clear and
convincing evidence, may find a person domiciled in the Commonwealth to be
incapacitated and appoint a guardian or guardians of his person or estate.”
20 Pa.C.S. § 5511(a). A person is presumed to be mentally competent, and
the burden is on the petitioner to prove incapacity by clear and convincing
evidence. In Re Myers' Estate, 150 A.2d 525, 526 (Pa. 1959). We have
explained that “[t]he standard of clear and convincing evidence is defined as
testimony that is so clear, direct, weighty and convincing as to enable the trier
of fact to come to a clear conviction, without hesitance, of the truth of the
precise facts in issue.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009)
(citation and internal quotation marks omitted).
Further, when making a determination of incapacity, the court shall
consider and make specific findings of fact concerning:
(1) The nature of any condition or disability which impairs the
individual’s capacity to make and communicate decisions.
(2) The extent of the individual’s capacity to make and
communicate decisions.
(3) The need for guardianship services, if any, in light of such
factors as the availability of family, friends and other supports to
assist the individual in making decisions and in light of the
existence, if any, of advance directives such as durable powers of
attorney or trusts.
(4) The type of guardian, limited or plenary, of the person or
estate needed based on the nature of any condition or disability
and the capacity to make and communicate decisions.
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(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
20 Pa.C.S. § 5512.1(a).
B.
In his first issue, Appellant avers, for the first time on appeal, that the
trial court did not have personal jurisdiction over him. Appellant’s Br. at 10.
Appellant argues that the record is devoid of evidence that the Agency
personally served the adjudication of incapacity petition on Appellant as
required by 20 Pa.C.S. § 5511(a) and Pa.O.C. Rule 14.2(f), which both require
written notice of the petition and hearing to be personally served on the
alleged incapacitated person at least 20 days before the hearing. Id.
Appellant also argues that the Agency failed to present the citation and proof
of service at the hearing as required by Pa.O.C. Rule 14.6(a). Id. Therefore,
Appellant contends, the trial court never had jurisdiction of his person and the
final decree is void for lack of jurisdiction. Upon review, Appellant has waived
these challenges.
“Personal jurisdiction is a court's power to bring a person into its
adjudicative process.” Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016)
(internal quotation marks and citation omitted). “Jurisdiction of the person
may be obtained through consent, waiver or proper service of process.”
Fleehr v. Mummert, 857 A.2d 683, 685 (Pa. Super. 2004). One can waive
service of process by various means, including a voluntary appearance in
court. Id. See also Hicks’ Estate, 199 A.2d 283, 285 (Pa. 1964) (explaining
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that a court cannot establish personal jurisdiction “[u]nless the court has the
parties before it, by appearance or service of process”). A party demonstrates
an intent to submit to the court's jurisdiction when the party takes some action
pertaining to the merits of the case, thus evidencing an intent to forego
objection to any defective service. Fleehr, 857 A.2d at 685.
Furthermore, it is axiomatic that issues which are not raised in the trial
court are waived and cannot be raised for the first time on appeal to this Court.
Pa.R.A.P. 302(a). The failure to challenge personal jurisdiction constitutes
waiver of that defense. Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa.
2001). “This Court has long held that questions of personal jurisdiction must
be raised at the first reasonable opportunity or they are lost.” Manack v.
Sandlin, 812 A.2d 676, 683 (Pa. Super. 2002)
Instantly, Appellant appeared in court and participated in the hearing,
thereby waiving any objection to personal jurisdiction. Additionally, Appellant
failed to raise any challenge regarding personal jurisdiction, service of
process, or compliance with Section 5511 or Rules 14.2 and 14.6 at the trial
court level. Accordingly, Appellant has failed to preserve these challenges for
our review.1
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1 Appellant also argues, for the first time in his brief, that the Agency failed to
comply with the jurisdictional procedural provisions of the Probate, Estates,
and Fiduciaries Code, specifically 20 Pa.C.S. §§ 764-766, which, inter alia,
require a party in interest to obtain personal jurisdiction by serving a citation.
Appellant’s Br. at 14. Appellant failed to include this challenge in his Rule
1925(b) statement and, thus, failed to preserve this issue for our review. See
(Footnote Continued Next Page)
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C.
In his second issue, Appellant avers that the Agency did not present
clear and convincing evidence that Appellant was totally incapacitated and
that the appointment of a plenary guardian of his person and estate was the
least restrictive alternative. Appellant’s Br. at 19. Appellant argues that Dr.
Spayd’s testimony “leaps from a factual predicate of findings of moderate to
severe impairment in some cognitive domains to a conclusion that plenary
guardianship of both person and estate is the only clinically indicated result.”
Id. at 23 (emphasis added). Additionally, Appellant argues that the trial court
should have considered Mr. Rose’s testimony that Appellant was able to take
care of his own finances. Id. at 21. Essentially, Appellant is challenging the
weight of the evidence.
Instantly, the trial court placed little weight on Mr. Rose’s testimony that
Appellant was able to contact his credit union and had tried to pay his taxes,
emphasizing that “it is unknown whether those taxes were paid,” and placed
greater weight on Dr. Spayd’s uncontradicted expert testimony and report.
Trial Ct. Op., filed 6/13/22, at 18-19. The trial court emphasized Dr. Spayd’s
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Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are
waived”). Moreover, as discussed above, Appellant waived any challenge to
personal jurisdiction when he appeared in court and participated in the
hearing.
Appellant further argues, for the first time in his brief, that it is unclear
whether the trial court appointed Attorney Hendershot to serve as a guardian
ad litem (“GAL”), an attorney, or both. Appellant’s Br. at 15-18. Appellant
likewise failed to include this issue in his Rule 1925(b) statement and the issue
is, thus, waived. See Pa.R.A.P. 1925(b)(4)(vii).
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conclusions in her expert report that Appellant is “currently unable to
consistently attend to, to recall, or to effectively comprehend information
needed to make important life decisions [or] to initiate action upon them.”
Id. at 19 (quoting Petitioner’s Ex. 1, Psychological Report, at 6.)
Moreover, the trial court credited Dr. Spayd’s uncontradicted expert
testimony that Appellant is suffering from dementia secondary to Parkinson’s
Disease and her expert opinion that Appellant needs a plenary guardian of his
person and estate. The trial court opined:
Based upon the expert testimony of Dr. Spayd, as well as the
written report entered as evidence at the hearing, this [c]ourt
found by clear and convincing evidence, that [Appellant] suffers
from a condition that totally impairs his capacity to receive and
evaluate information effectively and to make and communicate
decisions concerning his management of financial affairs or to
meet essential requirements for his physical health and safety. As
there were no family members or friends who were willing to serve
as plenary guardian of the person and estate of [Appellant].
Id.at 18. The trial court’s findings are supported in the record. We decline
to usurp the trial court’s credibility determinations or reweigh the evidence.
Accordingly, we find no abuse of discretion.
D.
In his third and final issue, Appellant avers that various shortcomings in
the proceedings amounted to a denial of his right to due process of law, which
is guaranteed to him by the 14th Amendment to the Constitution. Appellant’s
Br. at 24. Appellant avers, “in essence, this claim is that this poor guy got
the bum’s rush.” Id. at 25.
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To support his claim, Appellant reiterates his arguments that the Agency
failed to comply with Pa.O.C. Rule 14.2, that the Agency failed to perfect
proper service on Appellant, and that Attorney Hendershot served as a GAL
rather than an attorney. As explained above, all of these challenges are
waived. Essentially, Appellant attempts to resurrect several waived claims of
error into an overarching due process claim of error. Appellant fails to provide
this Court with any relevant legal authority to support this broad claim.
Accordingly, Appellant is not entitled to relief on this issue.
E.
In conclusion, Appellant’s personal jurisdiction and due process claims
of errors are waived. The record supports the trial court’s conclusion that
Appellant is incapacitated and in need of a plenary guardian of his person and
estate. Accordingly, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2022
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