In Re: Johns, J. Appeal of: Johns, A. ( 2014 )

J-A11011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: JACQUELINE ANN JOHNS, AN IN THE SUPERIOR COURT OF
INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: ANN M. JOHNS
No. 710 WDA 2013
Appeal from the Order of April 18, 2013
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): 6934 OF 2008
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E. and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 12, 2014
Appellant, Ann M. Johns, appeals from the order entered on April 18,
2013 granting a petition to transfer guardianship of Jacqueline Ann Johns to
the Commonwealth of Virginia. We affirm.
We summarize the facts and procedural history of this case as follows.
On August 24, 2009, the orphans’ court of Allegheny County adjudicated
Jacqueline Ann Johns (Jacqueline), Appellant’s mother, an incapacitated
person. At the time of adjudication, the orphans’ court appointed counsel to
represent Jaqueline who was residing in Vienna, Virginia with her daughter,
Jackie Indelicarto. The orphans’ court appointed Michael S. Johns as
guardian of Jacqueline’s person; Mark S. Johns continued serving as agent
under a durable power of attorney and, thus, the orphans’ court did not
appoint a guardian to manage Jacqueline’s estate.
J-A11011-14
On December 24, 2012, Appellant filed a petition for a rule to remove
court-appointed counsel. On December 28, 2012, Appellant filed a petition
for a review hearing, removal of the guardian of the person, and
appointment of a guardian of the estate. Jacqueline, Michael S. Johns, Mark
S. Johns, and court-appointed counsel filed preliminary objections to
Appellant’s petitions. On March 11, 2013, Michael S. Johns, filed a petition
to transfer the guardianship to the Commonwealth of Virginia, maintaining
that although Jacqueline owned a residence in Pennsylvania, she had resided
in Virginia for four years. Appellant filed an answer, objecting to a transfer.
On March 14, 2013, the orphans’ court held a consolidated hearing on all the
parties’ submissions.
On April 18, 2013, the orphans’ court (1) granted the petition to
transfer guardianship to the Commonwealth of Virginia; (2) sustained the
preliminary objections to Appellant’s petitions; and (3) granted protective
orders filed by Michael S. Johns, Mark S. Johns, and court-appointed counsel
for Jacqueline. In that same order, the orphans’ court denied Appellant’s:
(1) petitions for a review hearing, removal of the guardian of the person,
removal of court-appointed counsel, and appointment of a guardian of the
estate; (2) motion to allow telephonic testimony; (3) and motions to compel
deposition answers for Margaret Alexander, Albert Johns, and Martin Johns.
-2-
J-A11011-14
Moreover, the order cancelled a scheduled review hearing. This timely
appeal resulted.1,2
Appellant presents the following issues for our review:
1. Whether the Orphans’ Court erred as a matter of law and
exceeded its jurisdiction when it granted the petition to
transfer guardianship in the absence of any evidence of
record that the service requirements of Chapters 55 and
59 of the [Probate, Estates and Fiduciaries] Code had
been satisfied?
____________________________________________
1
Initially, we note the parties dispute whether the order at issue constitutes
a final, appealable order. Upon review, we conclude it is. As the note to
Rule 342 acknowledges, several revisions to the Rules of Appellate
Procedure have been implemented over the years because “[e]xperience has
proven that the determination of finality” of orphans’ court orders was “not
workable and ha[d] been applied inconsistently around the Commonwealth.”
Pa.R.A.P. 342, note. Pursuant to Pa.R.A.P. 342(a)(5), an appeal may be
taken as of right from “[a]n order determining the status of fiduciaries,
beneficiaries, or creditors in an estate, trust, or guardianship.” Pa.R.A.P.
342(a)(5). “Subdivision (a)(5) is intended to … resolve[] a conflict in prior
appellate court decisions by stating definitively that an order removing or
refusing to remove a fiduciary is an immediately appealable order.”
Pa.R.A.P. 342, note. While the orphans’ court order at issue herein
transferred guardianship to the Commonwealth of Virginia, it also denied
Appellant’s petition for a review hearing for the removal of the guardian of
Jacqueline’s person and the appointment of a guardian for her estate. Thus,
we conclude that under Pa.R.A.P. 342(a)(5), the order at issue is final,
appealable, and properly before us.
2
Procedurally, on April 25, 2013, Appellant filed a notice of appeal within 30
days of the April 18, 2013 order as required. See Pa.R.A.P. 903(a). On May
1, 2013, the orphans’ court entered an order directing Appellant to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). Appellant complied on May 22, 2013. The orphans’ court issued
an opinion pursuant to Pa.R.A.P. 1925(a) on July 1, 2013.
-3-
J-A11011-14
2. Whether the Orphans’ Court erred as a matter of law
when it granted the petition to transfer guardianship
without any finding of fact that the guardianship would
be accepted by Virginia pursuant to the statute?
3. Whether the Orphans’ Court erred as a matter of law
when it granted the petition to transfer guardianship
without any finding of fact that the plans for care and
services for Mrs. Johns in Virginia are reasonable and
sufficient pursuant to the statute?
4. Whether the Orphans’ Court abused its discretion when it
refused to permit Appellant to present additional
testimony in support of her objections to the petition to
transfer guardianship?
5. Whether the Orphans’ Court abused its discretion when it
found that eleven of the Johns children consented to the
petition to transfer guardianship?
6. Whether the Orphans’ Court erred as a matter of law
when it granted the preliminary objections to [the]
petition for review hearing, removal of guardian of the
person, and appointment of guardian of the estate and
dismissed the petition for a review hearing, removal of
guardian of the person, an appointment of guardian of
the estate?
7. Whether the Orphans’ Court erred as a matter of law
when it cancelled the review hearing?
8. Whether the Orphans’ Court erred as a matter of law
when it granted Attorney Liotus’s second preliminary
objections raising questions of fact to amended petition
for a rule to remove court-appointed counsel and
dismissed the amended petition for a rule to remove
court-appointed counsel?
9. Whether the Orphans’ Court abused its discretion when it
granted the guardian and agent/[power of attorney’s]
second motion for protective order filed pursuant to
Pa.R.C.P. 4012?
-4-
J-A11011-14
10. Whether the Orphans’ Court abused its discretion when
it granted Attorney Liotus’ second motion for protective
order filed pursuant to Pa.[R.]C.P. 4012?
11. Whether the Orphans’ Court abused its discretion when
it denied the motions to compel?
Appellant’s Brief at 6 (complete capitalization and italics omitted).
Our standard of review of the rulings of an orphans' court is as follows.
“The orphans' court's factual findings receive the same deference accorded
factual findings of a jury, but we must ensure that the decision of the court
is free from legal error.” In re Estate of Rosengarten, 871 A.2d 1249,
1253 (Pa. Super. 2005).
In her first issue presented, Appellant contends that the statutory
service requirements were not met because there is no evidence that
Jacqueline was served personally with notice of the transfer petition within
20 days of the transfer proceeding. Appellant’s Brief at 18-21.
Service is required to implicate the jurisdiction of the orphans’ court in
guardianship proceedings. In re Katic, 439 A.2d 1235, 1236 (Pa. Super.
1982). “The issue of subject matter jurisdiction cannot be waived and may
be raised by any party, or by the court sua sponte, at any stage of the
litigation.” Cobbs v. SEPTA, 985 A.2d 249, 255 (Pa. Super. 2009).
Pursuant to 20 Pa.C.S.A. § 5921(a), a guardian may petition the court to
transfer guardianship to another state. Notice of such a petition “must be
given to the persons that would be entitled to notice of a petition in this
Commonwealth for the appointment of a guardian or conservator.” 20
-5-
J-A11011-14
Pa.C.S.A. § 5921(b). Relevant herein, when petitioning for the appointment
of a guardian:
Written notice of the petition and hearing shall be given in
large type and in simple language to the alleged
incapacitated person. The notice shall indicate the purpose
and seriousness of the proceeding and the rights that can
be lost as a result of the proceeding. It shall include the
date, time and place of the hearing and an explanation of all
rights, including the right to request the appointment of
counsel and to have counsel appointed if the court deems it
appropriate and the right to have such counsel paid for if it
cannot be afforded. The Supreme Court shall establish a
uniform citation for this purpose. A copy of the petition shall
be attached. Personal service shall be made on the alleged
incapacitated person, and the contents and terms of the
petition shall be explained to the maximum extent possible
in language and terms the individual is most likely to
understand. Service shall be no less than 20 days in
advance of the hearing. In addition, notice of the petition
and hearing shall be given in such manner as the court shall
direct to all persons residing within the Commonwealth who
are sui juris and would be entitled to share in the estate of
the alleged incapacitated person if he died intestate at that
time, to the person or institution providing residential
services to the alleged incapacitated person and to such
other parties as the court may direct, including other
service providers.
* * *
In appropriate cases, counsel shall be appointed to
represent the alleged incapacitated person in any matter for
which counsel has not been retained by or on behalf of that
individual.
20 Pa.C.S.A. § 5511(a).
Appellant’s opening claim requires that we interpret the provisions of
Section 5511(a). The object of interpretation and construction of all statutes
-6-
J-A11011-14
is to ascertain and effectuate the intention of the General Assembly. See 1
Pa.C.S. § 1921(a). “When the words of a statute are clear and free from all
ambiguity, their plain language is generally the best indication of legislative
intent.” In re Carroll, 896 A.2d 566, 573 (Pa. 2006) (citation omitted); 1
Pa.C.S.A. § 1921(b). “A reviewing court should resort to other
considerations to determine legislative intent only when the words of the
statute are not explicit.” Id. “In ascertaining legislative intent, [a court] is
guided by, among other things, the primary purpose of the statute and the
consequences of a particular interpretation.” Id. (citations omitted). We
must further assume that the legislature did “not intend a result that is
absurd, impossible of execution or unreasonable.” 1 Pa.C.S.A. § 1922(1).
Here, the plain language of the guardianship statute under § 5511
states that, “[p]ersonal service shall be made on the alleged incapacitated
person, and the contents and terms of the petition shall be explained to the
maximum extent possible in language and in terms the individual is most
likely to understand.” 20 Pa.C.S.A. § 5511(a). In transferring guardianship,
notice of a transfer petition “must be given to the persons that would be
entitled to notice of a petition … for the appointment of a guardian[.]” 20
Pa.C.S.A. § 5921(b). Thus, at first blush it appears that the plain language
required notice to Jacqueline regarding the transfer petition. However, in
reading the notice requirements for the appointment of a guardian, the
service requirements consistently refer to the subject of a potential
guardianship as “the alleged incapacitated” person. Moreover, the clear
-7-
J-A11011-14
statutory purpose is “to indicate the purpose and seriousness of the
proceedings and the rights that can be lost as a result of the proceeding …
including the right to request the appointment of counsel and to have
counsel appointed if the court deems it appropriate[.]” 20 Pa.C.S.A.
§ 5511(a). The statute again states emphatically that “[i]n appropriate
cases, counsel shall be appointed to represent the alleged incapacitated
person in any matter for which counsel has not been retained by or on
behalf of that individual.” Id. Thus, the purpose of the notice requirements
is clear. Guardianship proceedings cannot be initiated unless the alleged
incapacitated is adequately informed and/or represented at the proceeding.
The same holds true for transfer proceedings.
We have previously determined:
Notice, the most basic requirement of due process, must be
reasonably calculated to inform interested parties of the
pending action, and the information necessary to provide an
opportunity to present objections. The form of the notice
required depends on what is reasonable, considering the
interests at stake and the burdens of providing notice. As
long as a method of service is reasonably certain to give
notice [] that an action is pending [], the fact that [there is
a failure] to receive actual notice does not invalidate service
on due process grounds.
Noetzel v. Glasgow, Inc., 469, 487 A.2d 1372, 1377-1378 (Pa. Super.
1985).
Moreover, in the context of a guardianship proceeding, our Supreme
Court has previously determined:
-8-
J-A11011-14
In the absence of service of citation upon appellant or
general appearance on her behalf, all that transpired
below was without jurisdiction over her person and was,
therefore a nullity. The decree of [incapacity], without
actual jurisdiction over appellant lacks validity and binding
effect.
In re Katic, 439 A.2d at 1236 (1982) (emphasis added), citing Hicks
Estate, 199 A.2d 283, 285 (Pa. 1964).
On this issue, the orphans’ court sub judice concluded:
While [] allegations [that there was no evidence that
Jacqueline Johns was personally served with the petition to
transfer pursuant to statute] are interspersed throughout
the pleadings filed by [Appellant], she never pursued these
issues via argument in open court prior to or during the
hearing on the [p]etition to [t]ransfer. Thus, the [orphans’
court] finds that the issues are waived. Moreover, even if
the issues were not waived, the [c]ourt finds that any
failure to notify Jacqueline Johns of the request to transfer
the matter to another court is not a fatal error, as the
[c]ourt does not believe, based upon the deposition
testimony of her treating psychiatrist, that she would have
understood the current court proceedings.
Orphans’ Court Opinion, 7/1/2013, at 2.
There is no dispute that the orphans’ court had already appointed
counsel to represent Jacqueline in guardianship proceedings. Upon review of
the record, court-appointed counsel was present at the transfer proceeding.
Thus, because appointed counsel was present and representing Jacqueline’s
interest, we deem that there was fair notice of the proceeding. Actual
notice is not necessary under these circumstances and does not invalidate
service on due process grounds. Moreover, while the statute requires notice
that the transfer petition “be explained to the maximum extent possible in
-9-
J-A11011-14
language and terms the individual is most likely to understand[,]” there is no
dispute that Jacqueline was unable to understand the proceedings. See
Deposition of Dr. Rhea Nishita Mehra, M.D., 2/25/2013, at 27-31 (“I do not
think [Jacqueline Johns] totally understands the guardianship matter
completely;” “I do not see her being able to handle the stressful situations
around going to court and I do not think she would be able to contribute in
any meaningful way in the court anyways.”). In fact, Appellant conceded as
much. See Petition for a Review Hearing, 12/28/2012, at ¶ 47 (“Because of
Mrs. Johns’s medical condition, her ability to receive and evaluate
information and effectively communicate decisions regarding her personal
health and safety and financial affairs is completely impaired.”). For all of
the foregoing reasons, we believe that appointed counsel’s representation of
Jacqueline at the transfer hearing afforded her proper due process. Thus,
we discern no error by the orphans’ court and Appellant’s first issue fails.
Additionally, Appellant claims all other interested parties were not
served with notice of the transfer proceeding. Appellant’s Brief at 21. The
entire sum of her argument in this regard is as follows:
Just as with personal service and 20 days advance notice,
supra, Section 5511(a) requires that notice be provided “to
all persons residing within the Commonwealth who are sui
juris and should be entitled to share in the estate of the
alleged incapacitated person if he died intestate at that
time.” Section 5511(a) is made applicable through Section
5921(b).
Id.
- 10 -
J-A11011-14
Appellant does not indicate who did not receive notice or point to the
record to develop this issue for our review. Failing to direct this Court to
specific portions of the record in support of an argument violates Pa.R.A.P.
2119(c). See Commonwealth v. Einhorn, 911 A.2d 960, 970 (Pa. Super.
2006) (concluding, inter alia, that a claim was waived for failure to direct
this Court's attention to that part of the record substantiating his claim).
Moreover, “[i]t is not for an appellate court to scour the dockets of the
various prothonotaries to confirm or deny allegations of any party to an
appeal.” Fiore v. Oakwood Plaza Shopping Ctr., Inc., 585 A.2d 1012,
1019 (Pa. Super. 1991). Thus, we are constrained to find the latter portion
of Appellant’s first issue waived.
Appellant’s second and third claims assert that the orphans’ court
erred by granting the transfer petition without any finding of fact that
guardianship would be accepted by the Commonwealth of Virginia or that
the care and services that Jacqueline receives in that state are reasonable
and sufficient. Appellant’s Brief at 21-22.
The transfer of guardianship statute provides, in pertinent part:
(d) Provisional guardianship order.--The court shall
issue an order provisionally granting a petition to transfer a
guardianship and shall direct the guardian to petition for
guardianship in the other state if the court is satisfied that
the guardianship will be accepted by the court in the other
state and the court finds that:
(1) the incapacitated person is physically present in
or is reasonably expected to move permanently to
the other state;
- 11 -
J-A11011-14
(2) an objection to the transfer has not been made
or, if an objection has been made, the objector has
not established that the transfer would be contrary
to the interests of the incapacitated person; and
(3) plans for care and services for the incapacitated
person in the other state are reasonable and
sufficient.
20 Pa.C.S.A. § 5921(d).
On Appellant’s second and third issues presented, the orphans’ court
concluded:
[Appellant] never raised [the issue of whether guardianship
would be accepted in Virginia] prior to or at the time of the
hearing. Thus, [the orphans’ court found] that this issue
has been waived. Moreover, there is no reason to believe
that the court in Virginia would not accept the guardianship
and Appellant has not established that such would occur.
* * *
[Furthermore,] [o]n the contrary, the [c]ourt found
specifically in its [o]rder dated April 18, 2013, that the
transfer would be beneficial to Jacqueline Johns because she
had been residing in Virginia for over four years at her
daughter’s residence and her daughter was providing her
with excellent care.
* * *
[S]he has been receiving excellent care in her daughter’s
home since she began living there in February 2009.
Orphans’ Court Opinion, 7/1/2013, at 2-3.
Upon review, we agree. At no time during the transfer proceeding did
Appellant argue that guardianship would not be accepted by the
Commonwealth of Virginia. Appellant cannot raise the issue for the first
- 12 -
J-A11011-14
time on appeal. See Pa.R.A.P. 302(a). Regardless, Michael Johns,
Jacqueline’s son and appointed guardian of her person, testified that he
retained counsel in Virginia “[t]o transfer guardianship in Virginia at the
request of or at the advice of the doctors down there[.]” N.T., 3/14/2013,
at 13-14. Counsel for Michael Johns also stated “[c]ounsel has been
retained down there. They are also members of the compact with this Adult
Guardianship Act and they are ready to proceed, but unfortunately [the
orphans’ court] must first order a provisional order allowing the transfer.”
Id. at 2. Moreover, there was overwhelming evidence that Jacqueline: (1)
has been living in Virginia for four years where all of her doctors are located;
(2) considers Virginia her home; (3) is concerned about being removed from
her current living arrangement; and (4) is receiving excellent care. Id. at
14, 29, and 38-40. In support, Dr. Mehra, Jacqueline’s treating psychiatrist
in Virginia, opined that although Jacqueline’s dementia is becoming “more
progressive[,]” “she is getting the best services that are appropriate for her
level of care” and that living and treating in Virginia “is the best situation she
can be in.” N.T., 2/25/2013, at 31-32. Accordingly, we discern no abuse of
discretion or error of law and Appellant’s second and third issues are without
merit.
Next, Appellant asserts that the orphans’ court abused its discretion
when it refused to permit her additional time to present testimony from
potential witnesses. Id. at 22.
- 13 -
J-A11011-14
We have previously determined:
The grant or denial of a motion for a continuance is within
the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of that discretion. An
abuse of discretion is not merely an error of judgment.
Rather, discretion is abused when the law is over-ridden or
misapplied, or the result of partiality, prejudice, bias, or ill-
will as shown by the evidence or the record. The grant of a
continuance is discretionary and a refusal to grant is
reversible error only if prejudice or a palpable and manifest
abuse of discretion is demonstrated.
Commonwealth v. Hansley, 24 A.3d 410, 418 (Pa. Super. 2011).
Moreover,
[w]hen there is no assurance that a witness can be
procured or considerable uncertainty concerning the content
of the witness' testimony, then denial of a continuance is
proper. Moreover, if the potential witness' testimony is
merely cumulative or available from another source, then
denial is proper.
Commonwealth v. Plath, 405 A.2d 1273, 1275 (Pa. Super. 1979) (internal
citations omitted).
Initially, we note that Appellant has not provided any legal authority
on this issue and, thus, has waived her claim. “This Court will not consider
the merits of an argument which fails to cite relevant case or statutory
authority.” In re Estate of Whitley, 50 A.3d 203, 209-210 (Pa. Super.
2012) (internal citation omitted). “Failure to cite relevant legal authority
constitutes waiver of the claim on appeal.” Id. Further, assuming the issue
was properly before us, we discern no abuse of discretion. Upon review of
the transcript of proceedings, Appellant testified primarily about the
- 14 -
J-A11011-14
contentious relationship she experienced with her siblings regarding
visitation. She requested additional time to procure witnesses to testify that
Jacqueline had asked to see Appellant and “other friends … who would be
able to testify as to what happened” during visits between Appellant and
Jacqueline. N.T., 3/14/2013, at 73. Appellant gave no assurances that
these witnesses could be procured. Moreover, the certified record confirms
that Appellant testified on her own behalf regarding these contentions.
Thus, additional witness testimony would have been cumulative.
With regard to the transfer of guardianship, Appellant’s fifth claim
avers that the orphans’ court abused its discretion when it determined that
eleven of Jacqueline’s children consented to the transfer when consents of
only six of her children were entered into evidence at the hearing. Id. at
22-23. Appellant claims that the orphans’ court failed to cite authority for its
position. Id. at 23. Curiously, however, Appellant fails to cite authority for
her position and does not point to the record to substantiate her claim.
Thus, she has waived the issue. See Einhorn, 911 A.2d at 970; In re
Estate of Whitley, 50 A.3d at 209-210.
In her sixth and seventh issues presented, Appellant contends that the
orphans’ court erred when it sustained preliminary objections to her petition
for a review hearing, removal of the guardian of the person, and the
appointment of a guardian of the estate and then cancelled a previously
scheduled review hearing. She claims that she pled sufficient facts to
demonstrate the need for a review hearing. Specifically, Appellant asserted
- 15 -
J-A11011-14
that Michael Johns, as guardian of Jacqueline’s person, failed to perform his
duties and/or act in Jacqueline’s best interest by: (1) preventing Appellant
from visitation with Jacqueline; and, (2) failing to provide appropriate
medical treatment for schizophrenia. Appellant’s Brief at 23-25. Appellant
further contends that the orphans’ court should appoint a guardian of
Jacqueline’s estate as there has been a change in the need for guardianship
services because the power of attorney established in 2008 was executed
while Jacqueline was already incapacitated. Id. at 26.
Our standard and scope of review of a court's order sustaining
preliminary objections are as follows:
Preliminary objections, the end result of which would be
dismissal of a cause of action, should be sustained only in
cases that are clear and free from doubt. The test on
preliminary objections is whether it is clear and free from
doubt from all of the facts pleaded that the pleader will be
unable to prove facts legally sufficient to establish his right
to relief. To determine whether preliminary objections have
been properly sustained, this Court must consider as true all
of the well-pleaded material facts set forth in appellant's
complaint and all reasonable inferences that may be drawn
from those facts.
This Court will reverse the trial court's decision regarding
preliminary objections only where there has been an error
of law or abuse of discretion.
In re B.L.J., Jr., 938 A.2d 1068, 1071 (Pa. Super. 2007) (internal citations
and quotations omitted).
Pursuant to 20 Pa.C.S.A § 5512.2(a):
The court may set a date for a review hearing in its order
establishing the guardianship or hold a review hearing at
- 16 -
J-A11011-14
any time it shall direct. The court shall conduct a review
hearing promptly if the incapacitated person, guardian or
any interested party petitions the court for a hearing for
reason of a significant change in the person's capacity, a
change in the need for guardianship services or the
guardian's failure to perform his duties in accordance with
the law or to act in the best interest of the incapacitated
person. The court may dismiss a petition for review hearing
if it determines that the petition is frivolous.
20 Pa.C.S.A. § 5512.2.
Here, the orphans’ court determined:
[…] Preliminary [o]bjections were properly [sustained] and
the [p]etition was properly dismissed for the following
reasons: (1) the [p]etition failed to contain an allegation
that there had been a significant change in Jacqueline
Johns’ capacity; (2) the [p]etition failed to contain an
allegation that there had been a change in the need for
guardianship services; (3) the [p]etition did not allege that
the court-appointed guardian had failed to perform his
duties or act in Ms. Johns’ best interest; and (4) the
[p]etition did not allege that Ms. Johns had been harmed in
any manner or that she was at risk. Rather, the main
thrust of the [p]etition was [Appellant’s] complaint that she
had not been permitted to visit with her mother, along with
claims of error that had occurred during or shortly after the
original guardianship proceeding in 2009.
[…] The review hearing was cancelled because the [c]ourt
had dismissed the [p]etition for [r]eview and granted the
[p]etition to [t]ransfer the [g]uardianship to Virginia. As
such, there was no matter pending before the [c]ourt.
Moreover, it would not have made sense to conduct a
review hearing after the guardianship had been transferred
to another state.
Orphans’ Court Opinion, 7/1/2013, at 4-5.
- 17 -
J-A11011-14
Initially, we note that the orphans’ court was not viewing Appellant’s
petition in isolation due to the ongoing proceedings since the guardianship
was established in 2009. We are mindful that:
When considering preliminary objections, a court may not
ordinarily take judicial notice in one case of the records of
another case, whether in another court or its own, even
though the contents of those records may be known to the
court. The general rule against taking judicial notice when
considering preliminary objections in the nature of a
demurrer is subject to limited exceptions. It is appropriate
for a court to take notice of a fact which the parties have
admitted or which is incorporated into the [petition] by
reference to a prior court action.
Joyce v. Erie Ins. Exch., 74 A.3d 157, 165 (Pa. Super. 2013) (citations
and brackets omitted). There is no dispute that the orphans’ court judge
has presided since 2009 over all of the proceedings related to Jacqueline’s
guardianship and Appellant does not argue that the orphans’ court erred in
sustaining the preliminary objections based on evidence outside of the four
corners of her petition.
As previously mentioned, at the transfer hearing held on March 14,
2013 while the preliminary objections were pending, the orphans’ court
heard testimony and was presented with the deposition of Jacqueline’s
treating psychiatrist who opined that she is receiving the best possible care
in Virginia. Moreover, Jacqueline is currently being “treated for chronic
paranoid schizophrenia and depression and dementia.” N.T., 2/25/2013, at
20. Furthermore, upon review of the certified record, Appellant herself
testified that she had been permitted visitation with Jacqueline on several
- 18 -
J-A11011-14
occasions. N.T., 3/14/2014, at 55-57, 71-72. Dr. Mehra testified that
Jacqueline’s demeanor changed after one such visit and she became “a little
bit more isolative, somewhat irritable, sometimes uncooperative recently
and just edgy. Nothing very serious, but just more stressed out.” Id. at 26.
In response to Dr. Mehra’s questions about a lunch visit with Appellant,
Jacqueline stated that she did not want anything to change and she did not
want to leave where she is living in Virginia. Id. at 27. Moreover, upon
further review, Appellant contacted protective services in Virginia regarding
Jacqueline and after investigation it was determined protective services were
not warranted. N.T., 3/14/2013, at 44. At one point when Jacqueline
initially moved to Virginia, Jacqueline called Appellant and told her that she
wanted to move back to Pittsburgh and Appellant called the police. Id. at
67. The orphans’ court was privy to all of this information at the time that it
decided the preliminary objections. Based upon the record before us,
visitation has been contentious since the inception of the guardianship and
the orphans’ court found that the guardian of Jacqueline’s person was acting
in her best interest in managing Jacqueline’s medical care and handling
visitation. Accordingly, the orphan’s court ultimately determined that the
petition for review was frivolous and sustained preliminary objections. We
discern no error or abuse of discretion.
In addition, we briefly note that a challenge to the power of attorney
should have occurred at the time of the original guardianship proceeding, if
Appellant believed that Jacqueline was incapacitated at the time she
- 19 -
J-A11011-14
executed the power of attorney. On appeal, Appellant does not argue that
Mark S. Johns, is not acting in Jacqueline’s best interest under the durable
power of attorney. There is no averment that there was a “significant
change in the person's capacity, a change in the need for guardianship
services or the guardian's failure to perform his duties in accordance with
the law or to act in the best interest of the incapacitated person.” 20
Pa.C.S.A. § 5512.2. Hence, the orphans’ court properly held there was no
alleged change in the need for guardianship services because “the claims of
error … had occurred during … the original guardianship proceeding in
2009.” Orphans’ Court Opinion, 7/1/2013, at 4-5. Thus, preliminary
objections were properly sustained on this basis as well.
As such, because we discern no error or abuse of discretion in
sustaining the preliminary objections, and thereafter dismissing Appellant’s
petition for review, we agree with the orphans’ court that there was no need
for a review hearing. Accordingly, Appellant’s sixth and seventh claims fail.
In her eighth issue presented, Appellant contends the orphans’ court
erred by sustaining preliminary objections to her amended petition for a rule
to remove court-appointed counsel. Appellant’s Brief at 30. Appellant avers
that, in her petition, she asserted three instances where Jacqueline’s court-
appointed counsel made unsubstantiated accusations that “forced contact
with Appellant was taking its toll on Mrs. Johns.” Id. at 31. Based upon our
standard of review and the petition before us, we discern no abuse of
- 20 -
J-A11011-14
discretion in sustaining preliminary objections. As such, preliminary
objections to Appellant’s rule to remove court-appointed counsel were
properly sustained.
In her last three allegations of error, Appellant argues that the
orphans’ court abused its discretion in denying motions to compel discovery
and granting motions for protective orders filed by the guardian of the
person, the power of attorney, and court-appointed counsel. Appellant’s
Brief at 36-44.
“When reviewing alleged discovery violations, we must first determine
whether the discovery rules are violated, and if so, whether the trial court
abused its discretion in fashioning its remedy.” Commonwealth v.
Tomasello, 693 A.2d 1310, 1311 (Pa. Super. 1997) (citation omitted).
“Moreover, questions involving discovery lie within the discretion of the trial
court and that court's decision will not be reversed absent an abuse of that
discretion.” Id. (citation omitted).
The orphans’ court denied Appellant’s three identical motions to
compel discovery wherein Appellant sought to compel three of her siblings to
explain how they retained counsel after they refused to do so during their
depositions. The orphans’ court determined “[t]he manner in which one
retains counsel has no relevance to these proceedings, especially in light of
the fact that there was no claim by the [siblings] that Appellant pay their
attorney’s fees.” Orphans’ Court Opinion, 7/1/2013, at 6. On appeal,
- 21 -
J-A11011-14
Appellant claims that her question pertaining to the retention of counsel “has
the potential to show partiality or bias.” Appellant’s Brief at 44. However,
Appellant fails to argue how or why the parties were potentially biased or
showed partiality. We agree with the orphans’ court and cannot discern
how counsel privately retained by three interested family members has any
relevancy or bearing on the guardianship proceedings. As such, we discern
no abuse of discretion in denying relief.
Finally, the orphans’ court granted protective orders to the guardian of
Jaqueline’s person and her power of attorney, as well as her court-appointed
counsel. Appellant requested permission to subpoena bank records from
PNC Bank and Dollar Bank to determine whether Jacqueline had issued
checks after the orphans’ court had declared Jacqueline incapacitated.
Appellant’s Brief at 38-39. Appellant also directed interrogatories and
requests to court-appointed counsel “relate[d] to whether she is performing
her duties as [c]ourt-appointed counsel for Mrs. Johns.” Id. at 42. The
orphans’ court determined that it had already previously rejected these
identical discovery requests. More specifically, it concluded that since it “had
already ruled that the first request[s] sought information that was not
relevant and pertinent to the guardianship proceeding, it was wholly proper
to grant the protective order[s] with regard to the second request[s].”
Orphans’ Court Opinion, 7/1/2013, at 6. “Upon motion by a party or by the
person from whom discovery or deposition is sought, and for good cause
- 22 -
J-A11011-14
shown, the court may make any order which justice requires to protect a
party or person from unreasonable annoyance, embarrassment, oppression,
burden or expense.” Pa.R.C.P. 4012. Upon review, we discern no abuse of
discretion by the orphans’ court in granting protective orders after Appellant
continued to request information already deemed irrelevant. For all of the
foregoing reasons, Appellant’s final three issues are without merit.
Order affirmed.
Ford Elliott, P.J.E., did not participate in this decision.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
- 23 -