J-A10008-24
2024 PA Super 141
IN RE: C.A.J., AN ALLEGED : IN THE SUPERIOR COURT OF INCAPACITATED PERSON : PENNSYLVANIA : : APPEAL OF: W.A.J. : : : : : No. 942 EDA 2023
Appeal from the Decree Entered March 8, 2023 In the Court of Common Pleas of Delaware County Orphans' Court at No(s): 0606-2021
BEFORE: PANELLA, P.J.E., BECK, J., and COLINS, J. *
OPINION BY PANELLA, P.J.E.: FILED JULY 9, 2024
W.A.J., C.A.J.’s daughter, appeals from the Delaware County Orphans’
Court’s decree finding C.A.J. incapacitated, appointing Andrew Donaghy, Esq.
as plenary guardian of C.A.J.’s estate and appointing C.A.J.’s daughter and
W.A.J.’s sister, A.R, and C.A.J.’s sister, S.M., as plenary guardians of C.A.J.’s
person. W.A.J. complains the orphans’ court abused its discretion by: refusing
to recuse itself; appointing A.R. and S.M. as plenary guardians of C.A.J.’s
person; finding C.A.J. incapacitated without issuing timely findings of fact; and
dismissing her petition for revocation of documents executed and transfers
made. Because we find that these issues are without merit, we affirm.
On December 28, 2021, W.A.J. filed a petition with two counts. Count
one was a “Petition for the Adjudication of Incapacity and Appointment of
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* Retired Senior Judge assigned to the Superior Court. J-A10008-24
Plenary Guardian of the Estate and Person” for her mother, C.A.J. In that
petition, she asked the court to appoint a neutral, non-family member as
plenary guardian of C.A.J.’s person. Count two was a “Petition for Revocation
of Documents Executed and Transfers Effected under Inference of Incapacity”
(“Petition for Revocation”). In the Petition for Revocation, W.A.J. alleged she
had been cut off from any contact with her mother. W.A.J. also alleged C.A.J.
had made changes to her deed for her real property in Florida, financial
accounts, and estate planning documents while under the care and undue
influence of A.R.
At the time of these filings, C.A.J. was a 77-year-old widow living with
A.R. and A.R.’s family. C.A.J. began living with A.R. and her family in May
2020, “due in large part to [C.A.J.’s] memory decline and emotional distress.”
Orphans’ Court Opinion, 7/7/2023, at 2.
The orphans’ court appointed a guardian ad litem (“GAL”) for C.A.J. It
also granted W.A.J.’s petition for an independent medical evaluation of C.A.J.
Dr. Marc Gramatges performed the court-ordered examination, interviewing
C.A.J. and reviewing previous medical records. The orphans’ court
summarized the conclusions and recommendations Dr. Gramatges made in
his capacity evaluation report:
[C.A.J.] met the criteria for probable major neurocognitive disorder due to Alzheimer’s disease and probable major neurocognitive disorder due to vascular disease without behavioral disturbance. [C.A.J.] was not able to manage her financial resources or meet essential requirements for her physical
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health and safety. [Dr. Gramatges] recommended that a plenary guardian be appointed for [C.A.J.] for the remainder of her life.
Id. at 3 (citations to capacity evaluation report omitted).
The orphans’ court held a hearing on the matter on August 24, 2022.
One day prior to the hearing, W.A.J. filed a motion for the orphans’ court’s
recusal.1 The court initially addressed the recusal motion at the hearing.
W.A.J. argued the court should recuse itself because it had previously presided
over her protracted divorce action, which involved allegations that “did not
put her in the best light.” N.T., 8/24/2022, at 6. The court denied the motion,
reasoning that it did not have to recuse itself simply because it had presided
over another matter that was not related to the current action and was, in any
event, of public record for any jurist to see. See id. at 12-13.
The court then proceeded to address the guardianship matter. All parties
essentially agreed that Dr. Gramatges’s capacity evaluation report, which had
been introduced into evidence, was sufficient to establish that C.A.J. was
incapacitated. See id. at 36-37. All parties also agreed to the appointment of
Attorney Donaghy as guardian of C.A.J.’s estate. See id. at 32. W.A.J.,
however, objected to A.R. and S.M. being appointed as plenary guardians of
C.A.J.’s person, instead asking that a neutral, non-family member be
appointed for that role. See id. at 37-49.
1 By this point, the guardianship matter had been assigned to President Judge
Linda Cartisano after Judge Kathyrnann Durham had recused herself in the matter.
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The GAL represented that she had recommended the appointment of
A.R. and S.M. as guardians of C.A.J.’s person. See id. at 54. She relayed that
C.A.J. had told her that she did not want to see or speak with W.A.J. because
of W.A.J.’s behavior. See id. at 54-55.
C.A.J. also testified at the hearing. She stated she wanted to continue
to live with A.R. and have A.R. take care of her. See id. at 59-60. She shared
that she did not want to have contact with W.A.J. at that point in time because
of W.A.J.’s erratic behavior and threats but that it was difficult because W.A.J.
was still her daughter. See id. at 61.
At the conclusion of the hearing, the court appointed A.R. and S.M. as
temporary guardians of C.A.J.’s person to handle her day-to-day and medical
needs. See id. at 67.
The court entered a decree on August 30, 2022, finding that C.A.J. was
incapacitated in that she was “totally unable to manage her financial affairs
and meet those requirements essential for both her general safety as well as
her physical health.” Decree, 8/30/2022. The decree also appointed A.R. and
S.M. as temporary plenary guardians of C.A.J.’s person and Attorney Donaghy
as plenary guardian of C.A.J.’s estate. See id. Additionally, the court entered
an order denying W.A.J.’s recusal motion.
The court scheduled hearings on count two of W.A.J.’s petition, her
Petition for Revocation, for October 26, October 27, and October 28, 2022.
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According to the orphans’ court, “numerous subpoenas were issued in
anticipation of trial.” Id. at 5.
W.A.J. failed to appear for the hearing on October 26. Her counsel
“offered the court an email from [W.A.J.] dated Tuesday October 25 7:46 p.m.
wherein [W.A.J.] explained she was scared, her depression had worsened,
[she was] a mess mentally and attending the hearings would damage [her]
mental state further.” Id. (quotations and citation omitted). W.A.J. also
provided a letter from her treating psychologist, which stated:
It is in my opinion that [W.A.J.] is unable to attend upcoming hearings for the time being—yet to be determined—due to a significant exacerbation of depressive symptoms following recent events regarding her current court case and the grief secondary to the loss of her relationship with her mother.
Letter from John Glanville, Psy.D., 10/25/2022 (single page). The orphans’
court continued:
Although counsel for [W.A.J.] asserted that her client would be unavailable to appear for “the next two weeks,” (N.T., 10/26/2022, at 29), [the doctor’s] note indicates that the time period when [W.A.J.] would be ready to proceed was “yet to be determined.” Counsel asserted she would supplement the record but this was never done. “Well, the note says for a date to be determined. So I will get you a supplemental when I speak to the doctor. And I will supplement that part of the record.” [(Id. at 30)]. The court was never notified as to when [W.A.J.] could appear.
Orphans’ Court Opinion, 7/7/2023, at 5-6.
Counsel for C.A.J. vehemently opposed the giving of any continuance
on the Petition for Revocation at the 11 th hour, explaining that counsel for
C.A.J. had lined up witnesses over the three days reserved for trial and
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“there’s costs to these witnesses, expert witnesses, doctors, psychologists,
police officers who are requesting fees.” N.T., 10/26/2022, at 7. Counsel noted
C.A.J.’s family had also taken the time to come to court. Counsel requested
that, given the circumstances, the court dismiss W.A.J.’s Petition for
Revocation. See id.
The court granted counsel’s request and dismissed count two of W.A.J.’s
petition on the basis that W.A.J. did not appear for the hearing and the court
was not given a definitive date when W.A.J. might be able to appear. See id.
at 21; see also Order, 10/26/2022 (dismissing Petition for Revocation for
failure to appear). The court acknowledged that the issue of whether the
temporary plenary guardians of C.A.J.’s person, A.R. and S.M., would become
the permanent plenary guardians of C.A.J.’s person remained outstanding.
The court eventually scheduled hearings regarding guardianship of C.A.J.’s
person for March 1 and March 2, 2023.
A.R. testified at the hearing on March 1, 2023. She relayed that her
mother had been living with her since 2020. She testified about C.A.J.’s
routine at her house, that C.A.J. ate dinner and had a close relationship with
her, A.R.’s two adult children and A.R.’s husband, and that A.R. gave C.A.J.
her medicine daily and drove her to her appointments. See N.T., 3/1/2023,
at 25-29. A.R. agreed C.A.J. had never expressed the desire to reside
someplace else. See id. at 25-29, 44. A.R. stated she is totally devoted to her
mother. See id. at 47.
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A.R. also testified about the rocky relationship she and C.A.J. had with
W.A.J., and that C.A.J. did not want W.A.J. to visit her. A.R. reported she and
C.A.J. called the police after W.A.J. left threatening voicemails on C.A.J.’s
phone throughout the night on May 25, 2021. See id. at 146. Those
voicemails were played for the court. See id. at 149-157. A.R. testified she
and her mother sought a Protection from Abuse order against W.A.J. See id.
at 157.
S.M. testified as well. She testified she has a close relationship with
C.A.J., helping A.R. with C.A.J. and visiting C.A.J. often. She maintained that
C.A.J.’s living arrangement with A.R. and her family was “perfect.” Id. at 228.
They take care of whatever C.A.J. needs and C.A.J. is “very much a part of
[A.R.’s] family.” Id. at 228.
S.M. also reported C.A.J. does not want to see W.A.J. and testified that
W.A.J. was blocked from C.A.J.’s phone because W.A.J. harassed C.A.J. and
A.R. See id. at 235, 240, 250. According to S.M., “[W.A.J.] causes [C.A.J.]
too much anxiety and stress,” which has led to the deterioration of C.A.J.’s
medical condition. Id. at 252.
W.A.J. also testified. W.A.J. was not asking to be made guardian of
C.A.J.’s person. See N.T., 3/2/2023, at 10, 60. Rather, she did not want A.R.
and S.M. to have that role. W.A.J. admitted she left the voicemails on C.A.J.’s
phone that had been played for the court but claimed she did so because she
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was upset that A.R. was preventing her from seeing or talking to C.A.J. See
id. at 16, 43.
W.A.J. agreed C.A.J. was not malnourished or physically abused by A.R.,
but she did raise the issue that C.A.J. had itchy eyes while she had COVID and
it was W.A.J. who called the eye doctor. See id. at 68-69. W.A.J. also
attempted to plead the Fifth Amendment when asked if she contacted the
District Attorney’s office in Florida, where C.A.J. owned a house, about certain
documents C.A.J. had executed. See id. at 78.
Following the hearing, on March 8, 2023, the orphans’ court entered a
decree declaring C.A.J. an incapacitated person and appointing A.R. and S.M.
as the plenary guardians of C.A.J.’s person. W.A.J. filed a timely notice of
appeal and complied with the court’s directive to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
After the notice of appeal was filed, Attorney Donaghy filed a petition to
sell real estate and to invade principal for the care, maintenance, and costs
for C.A.J. with the orphans’ court. The orphans’ court denied the petition on
the grounds that it no longer had jurisdiction over the matter.
A.R. and S.M. then filed a petition for extraordinary relief—emergency
application with this Court. In the petition, A.R. and S.M. represented that
C.A.J.’s physical and mental condition had worsened to the extent that she
now requires all-day in-patient care. According to the petition, C.A.J. had been
moved to Rose Tree Place, a memory care facility. To cover the costs of
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C.A.J.’s expenses at Rose Tree Place, A.R. and S.M., together with Attorney
Donaghy as the plenary guardian of the estate, requested that this Court
remand the matter to the orphans’ court to determine the limited issue of
whether C.A.J.’s assets could be liquidated for medical and related expenses.
This Court granted the petition, and remanded the matter to the
orphans’ court so that the guardians could file an application to liquidate
assets necessary for C.A.J.’s uninterrupted care. This Court further directed
the orphans’ court to conduct proceedings to determine the limited issue of
the necessity for the plenary guardian of the estate to liquidate C.A.J.’s assets.
The order concluded: “All other aspects of this matter including the pending
appeal before this Court shall remain the exclusive jurisdiction of” the Superior
Court. Per Curiam Order, 4/16/2024, at 2.
The certified record was returned to the orphans’ court. Attorney
Donaghy refiled his petition to sell real estate, and the orphans’ court held a
hearing on the petition. On May 23, 2024, the orphans’ court entered an order
granting the petition and authorizing Attorney Donaghy to enter into a long-
term contract for residential services for C.A.J., invade the principal and sell
real estate to pay for the long-term residential care of C.A.J. The certified
record was subsequently returned to this Court, allowing us to proceed with
the appeal before us. W.A.J. raises four issues for our consideration:
I. Did the [orphans’] court err in denying [W.A.J.’s] motion to recuse [the orphans’ court] from the matter[?]
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II. Did the [orphans’] court err in appointing an interested party or parties who clearly had conflicts of interest, as guardian(s) or should a neutral party have been appointed[?]
III. Did the [orphans’] court err in entering the final order for guardian of the person without the appropriate support of findings of fact and/or conclusions of law[?]
IV. Did the [orphans’] court err in dismissing [W.A.J.’s] petition for revocation of documents executed and transfers made as a result of undue influence and incapacity[?]
Appellant’s Brief at 12 (suggested responses and unnecessary capitalization
omitted; issues reordered).
Although W.A.J. raises these four distinct questions in her statement of
questions involved section, she does not divide her argument “into as many
parts as there are questions to be argued” nor does she “have at the head of
each part—in distinctive type or in type distinctively displayed—the particular
point treated therein.” Pa.R.A.P. 2119(a). As such, W.A.J.’s brief clearly does
not comply with our Rules of Appellate Procedure. While we could arguably
find W.A.J.’s arguments waived for this noticeable deficiency in her brief,
because we are still able to parse out W.A.J.’s arguments and review them,
we decline to find them waived on the basis of this deficiency.
In her first issue, W.A.J. maintains the orphans’ court erred by denying
her motion for its recusal. This claim is without merit.
Generally, a motion for recusal is properly directed to and decided by,
in the first instance, the jurist whose participation is being challenged. See
Commonwealth v. Watson, 228 A.3d 928, 939 (Pa. Super. 2020). “Where
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a jurist rules that he … can hear and dispose of a case fairly and without
prejudice, that decision will not be overturned on appeal but for an abuse of
discretion.” Id. (citation omitted) (ellipsis in original).
When a party requests recusal, it is their burden to produce evidence
establishing bias or prejudice, which raises a substantial doubt as to the ability
of the jurist to preside impartially. See id. However:
The inquiry is not whether a judge was in fact biased against the party moving for recusal, but whether even if actual bias or prejudice is lacking, the conduct or statement of the court raises an appearance of impropriety. The rule is simply that disqualification of a judge is mandated whenever a significant minority of the lay community could reasonably question the court’s impartiality.
Id. (citation omitted).
In considering W.A.J.’s motion for recusal, the orphans’ court
acknowledged that it had previously presided over the divorce action in which
W.A.J. was a party. The court also noted that W.A.J. maintained that because
the court had heard “information and characterizations that did not cast
[W.A.J.] in a true or becoming light” during the divorce action, it could not be
impartial in the current guardianship action. Orphans’ Court Opinion,
7/7/2023, at 19. The court responded:
[W.A.J.] presented no evidence as to what “information and characterizations” of [W.A.J.] the court was alleged to have heard and allegedly disclosed to the court during the [divorce] hearings. [W.A.J.] offered no evidence as to why this divorce case was different from any other family law case. There was no specific evidence presented as to what the court heard and why it would affect this case.
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Id. at 20.
As such, the court found W.A.J. had failed to produce any evidence
demonstrating any bias or prejudice and accordingly, the court had not abused
its discretion by denying W.A.J.’s motion for recusal. We agree.
In her appellate brief, W.A.J. continues to make the summary allegation
that the orphans’ court heard “information and characterizations which did not
cast [W.A.J.] in a true or becom[ing] light, matters which would be relevant
in these proceedings.” Appellant’s Brief, at 16. However, she in no way
attempts to respond to the orphans’ court by further clarifying exactly what
“information and characterizations” to which she is referring or how they are
relevant to this case. As such, we see no abuse of discretion in the court’s
determination that it was not able to be impartial in the instant matter simply
because it presided over an unrelated matter involving the same party. See
In re S.H., 879 A.2d 802, 807-08 (Pa. Super. 2005) (finding that the orphans’
court did not abuse its discretion in denying a party’s recusal motion in a
parental termination case on the basis that the court had also presided over
dependency hearings involving the party and had previously sentenced the
party in a criminal matter).
In her second issue, W.A.J. contends the orphans’ court abused its
discretion by appointing A.R. and S.M. as plenary guardians of C.A.J.’s person
because their interests allegedly conflict with C.A.J.’s interests. This claim also
fails.
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Under the Decedents, Estates and Fiduciaries Code (“Code”), an
individual may be adjudicated incapacitated and a guardian of the person and
estate may be appointed if the petitioner seeking this adjudication and
appointment shows by clear and convincing evidence that the individual is
“unable to manage [her] financial resources [and] meet essential
requirements for [her] physical health and safety.” 20 Pa.C.S.A. § 5501; see
20 Pa.C.S.A. § 5511(a).
Section 5512.1(a) of the Code requires the court, when making a
determination of incapacity, to consider and make specific findings of fact
regarding certain specified areas. Those areas include: (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 “the existence, if any, of less
restrictive alternatives” such as, inter alia, “[a]dvance directives[;]” (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[;]” and (5) the “duration of the guardianship.” 20
Pa.C.S.A. § 5512.1(a)(1)-(5).
Once a court determines an individual is incapacitated and in need of a
guardian, it becomes the court’s responsibility to appoint a person or entity to
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serve as guardian. See Estate of Haertsch, 649 A.2d 719, 720 (Pa. Super.
1994). There are two classes of guardian: (1) guardian of the person, who
assumes primary physical responsibility for the care and custody of the
incapacitated individual and (2) guardian of the estate, who is entrusted with
the control of the property of the incapacitated individual. See Rock v. Pyle,
720 A.2d 137, 141 (Pa. 1998). “The spheres of authority of a guardian of the
person and of a guardian of the estate are distinct and mutually exclusive.”
Id. (citations omitted).
When deciding who shall serve as guardian of the person, the court may
consider the preference of the incapacitated person. See Estate of Haertsch,
649 A.2d at 720. The selection of a guardian is within the sound discretion of
the orphans’ court, and this Court will not disturb that selection absent an
abuse of discretion. See id. The orphans’ court may not, however, appoint a
person whose interests conflict with those of the incapacitated person unless
no other alternative exists. See 20 Pa.C.S.A. § 5511(f). “Any family
relationship to such individual, shall not, by itself, be considered an interest
adverse to the alleged incapacitated person.” Id.
Here, in appointing A.R. and S.M. as C.A.J.’s guardians of her person,
the orphans’ court found that A.R. and S.M. would be the best individuals to
“assert the rights and best interests” of C.A.J. See 20 Pa.C.S.A. § 5521(a). In
support, the court pointed to the testimony of C.A.J. that she wanted to
remain in A.R.’s home and her comfort and confidence while in A.R.’s care,
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A.R.’s testimony of how she and her family cared for her mother on a daily
basis, and S.M.’s testimony that C.A.J. was well cared for by her and A.R. See
Orphans’ Court Opinion, 7/7/2023, at 16.
W.A.J. does not dispute any of this. Instead, she continues to insist the
court abused its discretion by appointing A.R. and S.M. as guardians of C.A.J.’s
person because they have, according to W.A.J., exploited her financially as
shown by the changes made to C.A.J’s finances while C.A.J. was in A.R.’s care.
However, as the orphans’ court explained, A.R. and S.M., as guardians of the
person, “have no control over [C.A.J.’s] assets.” Id. Although W.A.J. continues
to be concerned with the handling of C.A.J.’s property and finances and bases
her objection to the appointment of A.R. and S.M. solely on that basis, the
orphans’ court appointed a neutral guardian of C.A.J.’s estate, Attorney
Donaghy, whose appointment was not disputed by W.A.J. It is Attorney
Donaghy, as the guardian of C.A.J.’s estate, who has the authority to control
C.A.J.’s property and finances. As such, we fail to see how the appointment of
A.R. and S.M. as guardians of C.A.J.’s person conflicts with C.A.J.’s interests
in the manner alleged by W.A.J.
W.A.J. also takes issue with the court taking into consideration C.A.J.’s
preference to stay in the care of A.R. when selecting who the guardians for
C.A.J.’s person should be. However, the Code specifically contemplates that a
court may consider the preference of the incapacitated person when
appropriate. See 20 Pa.C.S.A. § 5511(f)(1); see also Estate of Haertsch,
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649 A.2d at 720. As such, the fact that the orphans’ court considered C.A.J.’s
preference to continue to have A.R. care for her does not, contrary to W.A.J.’s
assertion, represent an abuse of discretion.
Based on the above, we see no abuse of discretion in the court’s
determination to appoint A.R. and S.M. as guardians of C.A.J.’s person. It is
clear from the record and the court’s opinion that it weighed all the evidence
presented, including the findings of Dr. Gramatges and the testimony of the
GAL, C.A.J., A.R., S.M. and W.A.J., when selecting who should be appointed
to care for C.A.J. Given the evidence presented to the orphans’ court and the
discretion afforded to the court to select the guardian of a person, no relief on
this claim is due.
Next, W.A.J. contends the orphans’ court erred by entering a decree
declaring C.A.J. incapacitated and appointing guardians for her person without
any accompanying findings of fact. She contends the court only issued its
written Findings of Fact and Conclusions of Law after the notice of appeal was
filed and she argues this was untimely. This claim also does not warrant any
relief.
The court found W.A.J.’s contention that it failed to make any findings
of fact was simply “inaccurate.” Orphans’ Court Opinion, 7/7/2023, at 23. The
court noted that its Orders entered on August 29, 2022 and March 8, 2023
made the findings of fact required by Section 5512.1(a), which the court noted
is a procedure this Court has found to be sufficient. See id. at 23, n.5 (citing
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In Re: Guardianship of H.T., 747 MDA 2021 (Pa. Super. filed August 25,
2022) (unpublished memorandum)).
The court further noted that, in any event, it issued additional findings
of fact on April 25, 2023. See Findings of Fact and Conclusions of Law,
4/25/2023. In those findings, the court recounted that the court-appointed
evaluator found C.A.J. had Alzheimer’s, was not able to manage her financial
resources or meet essential requirements for her care and therefore
recommended the appointment of a plenary guardian for the remainder of her
life. It noted C.A.J.’s preference to remain in A.R.’s care. The court also
specifically referenced A.R.’s testimony regarding how she cared for her
mother and that there was “no testimony about any problems with [C.A.J.]
residing with [A.R.].” Id. at 5 (emphasis in original).
W.A.J. does not challenge the sufficiency of these written findings of fact
but argues they were untimely filed because the court did not issue them until
after the notice of appeal had been filed. The only authority W.A.J. offers for
this timeliness claim is Section 5512.1, cited above, which requires courts to
consider and make specific findings of fact in certain specified areas when
determining whether a person is incapacitated and if so, what type of
guardianship is needed. We note that W.A.J. does not dispute any of the
court’s findings pursuant to Section 5512.1 regarding C.A.J.’s incapacitation
and her need for plenary guardianship. Even so, as counsel for C.A.J. points
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out, Section 5512 does not set “forth the deadline for when [the] findings [of
fact] shall be filed.” Appellee’s Brief at 11.
Moreover, as the orphans’ court found, W.A.J. has not established she
was prejudiced by the filing of the Findings of Fact and Conclusions of Law on
April 25, 2023, as the court granted W.A.J.’s petition for additional time to file
her amended Rule 1925(b) statement and she had “ample time” to review the
Court’s Findings of Fact and Conclusions of Law before filing her amended
1925(b) statement on May 30, 2023. Orphans’ Court Opinion, 7/7/2023, at
24. Based on all the above, this claim does not afford W.A.J. any relief.
In her last claim, W.A.J. argues the court improperly dismissed count
two of her petition, her Petition for Revocation based on claims of undue
influence, because of her failure to appear for the hearing on that petition.
Again, this claim does not warrant any relief.
In rejecting W.A.J.’s claim, the orphans’ court noted that W.A.J. not only
failed to appear for the first day of her scheduled three-day hearings on her
Petition for Revocation, but the doctor’s note given to explain W.A.J.’s failure
to appear did not provide or even estimate a date upon which W.A.J. could
return. The court explained that when a case is called for trial, and the
petitioner/plaintiff is not ready without satisfactory excuse, the orphans’ court
may enter a nonsuit upon the motion of the respondent/defendant. See
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Pa.R.C.P. 218(a).2 “A party who fails to appear for trial shall be deemed to be
not ready without satisfactory excuse.” See Pa.R.C.P. 218(c); see also
Pa.R.C.P. 218, note (“the mere failure to appear for trial is a ground for the
entry of a nonsuit”).3
The orphans’ court further explained that a “nonsuit may be entered
against a party where the disposition of the case depends on an issue on which
that party has the burden of proof and has failed to satisfy that burden.” 20
Pa.C.S.A. § 779(c). Applying these principles to the case at hand, the orphans’
court noted that because W.A.J. failed to appear for trial, the court could not
reach the allegations of undue influence and therefore W.A.J. had failed to
meet her burden of proof regarding the Petition for Revocation that she had
filed. Accordingly, the orphans’ court reasoned it had properly dismissed the
Petition for Revocation and emphasized that it had done so without prejudice.
Before we address W.A.J.’s claim that the orphans’ court erred in
reaching this conclusion, we must address counsel for C.A.J.’s claim that this
Court does not have jurisdiction over this final claim. See Murphy v.
2 “The orphans’ court division may enter a nonsuit in the same manner as in
an action at law. 20 Pa.C.S.A. § 779(a).” In re Estate of Schmidt, 596 A.2d 1124, 1131 (Pa. Super. 1991). Here, the court’s granting of counsel’s motion for the dismissal of the Petition for Revocation was, in effect, an entry of nonsuit for W.A.J.’s failure to appear.
3 While we recognize that explanatory notes are nonbinding, this Court has
found the explanatory notes and comments “accompanying rules of civil procedure to be both persuasive and instructive.” Hoopes v. Hadley, — A.3d—, 2024 WL 189116, at * 5 n.4 (Pa. Super. filed May 1, 2024).
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International Druidic Society, 152 A.3d 286, 289 (Pa. Super. 2016)
(stating that this Court may raise the issue of jurisdiction at any time). Counsel
claims that we lack jurisdiction because W.A.J. failed to file a post-trial motion
to remove the nonsuit entered by the orphans’ court pursuant to Pa.R.C.P.
227.1(a)(3) and this Court has held that the appeal from the entry of a nonsuit
lies only from the lower court’s denial of the post-trial motion to remove the
nonsuit. See id. at 290. However, Pennsylvania Orphans’ Court Rule 8.1
provides that no “post-trial motions may be filed to any order or decree of the
[orphans’] court.” Pa.O.C.R. 8.1. The explanatory comment clarifies that the
“post-trial motion practice applicable in the Civil Division of the Court of
Common Pleas is not applicable in the Orphans’ Court Division.” Pa.O.C.R. 8.1,
cmt.
As such, we do not find any jurisdictional impediment to reaching the
merits of W.A.J.’s claim that the orphans’ court abused its discretion by
entering the nonsuit. However, in doing so, we find no abuse of discretion in
the orphans’ court decision to dismiss W.A.J.’s Petition for Revocation. W.A.J.
failed to appear for the hearing on the petition she filed, and Rule 218 provides
the orphans’ court with the option to enter a nonsuit upon the respondent’s
request in such circumstances. While W.A.J. argues there would have been no
prejudice to the parties had the orphans’ court “taken up the matter at a
hearing day scheduled later in the action,” Appellant’s Brief at 30, C.A.J.’s
counsel’s arguments advocating for dismissal of the petition at the hearing at
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which W.A.J. failed to appear reflects the opposite. In any event, the orphans’
court stressed that, even though its order did not explicitly state as much, the
Petition for Revocation was dismissed without prejudice and W.A.J. did not
subsequently challenge the dismissal or follow up by providing the court with
a date she would definitively be able to return to court. W.A.J. does not dispute
any of this. Given all of these circumstances, we see no merit to W.A.J.’s claim
that the court erred by dismissing her Petition for Revocation for her failure to
appear.
Decree affirmed.
Judge Beck joins the Opinion.
Judge Colins did not participate in the consideration or decision of this
case.
Date: 7/9/2024
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