Opinion
J-A28037-17 No. 2570 EDA 2016
12-14-2017
IN THE MATTER OF HELEN HARPER, AN ALLEGED INCAPACITATED PERSON APPEAL OF: ROBERT J. HARPER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Decree July 26, 2016
In the Court of Common Pleas of Delaware County Orphans' Court at No(s): 597-2015 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY DUBOW, J.:
Appellant, Robert J. Harper, Co-Guardian of the Person of Helen Harper, appeals from the July 26, 2016 Order entered in the Delaware County Court of Common Pleas granting the Petition to Sell Real Estate/Use Proceeds to Satisfy Debts filed by Jacquelyn Goffney, Esquire, Co-Guardian of the Estate of Helen Harper. After review, we affirm.
Helen Harper is a ninety-nine year old woman residing at Wallingford Nursing Home. On November 25, 2015, following a hearing, the court adjudged Ms. Harper incapacitated and appointed Jacquelyn Goffney, Esquire, and Dana Breslin, Esquire, as her Co-Guardians. Appellant, her son, appealed the adjudication of incapacity and appointment of guardianship, which this Court affirmed on January 5, 2017. Matter of Harper , No. 91 EDA 2016 (Pa. Super. filed January 5, 2017) (unpublished memorandum).
During their tenure as Co-Guardians of the Estate, Attorney Goffney and Attorney Breslin determined that Ms. Harper had accrued $180,000 in unsecured debts that she could not pay with the liquid assets in her estate. The Co-Guardians further determined that Ms. Harper's debts were mainly due to the mismanagement of her assets by Appellant, acting as agent under a power of attorney.
Although Ms. Harper has very little in the way of liquid assets, she owns several tracts of land including a commercial property at 611 N. Swarthmore Avenue, Ridley Park (the "Property"). Based upon a substantial amount of unpaid taxes, the sheriff had scheduled a proposed upset tax sale of all of Ms. Harper's properties for September 2016. In response, Attorney Goffney sought to sell a portion of the Property to pay off Ms. Harper's outstanding debts and to ensure that she did not lose all of her properties to tax foreclosure proceedings. The Property contained a lumberyard, a run-down garage, and a single family home that was unsafe to occupy and required demolition.
The Co-Guardians obtained an agreement of sale of the Property for $320,000 as-is, including indemnification on any environmental issues and requiring the buyer to perform their own environmental remediation and removal of debris from the premises. Accordingly, on June 1, 2016, Ms. Goffney filed a Petition to Sell Real Estate/Use Proceeds to Satisfy Debts ("Petition"). Appellant objected to the Petition, alleging that the sale price was too low, that Attorney Goffney inadequately advertised the sale, and that a sale by auction would bring a higher sales price.
On July 26, 2016, the court held a hearing on the Petition. Ms. Goffney presented: 1) the testimony of Anthony Tartaglia, Ridley Park Brorough Code Enforcement Office; 2) a commercial appraisal completed by Kevin B. Flynn concluding that the fair market value of the Property was $310,000; and 3) a letter affidavit from Donald J. Grimes, a Pennsylvania Licensed Real Estate Sales Person, who concluded that the cash sale price offered for the Property is reasonable. Following the hearing, the court granted the Petition, approving the sale of the Property for $320,000 in order to pay Ms. Harper's outstanding debts and taxes. Appellant timely appealed.,
The court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.
On August 23, 2016, Attorney Goffney filed a Petition to Allow Sale of Real Estate to Proceed and Request for Postage of Appeal Bond. On September 12, 2016, the court granted the Petition and Ordered Appellant to post an appeal bond in the amount of $600,000 within five days. Appellant failed to post an appeal bond, and the Co-Guardians subsequently sold the Property for the amount approved by the orphans' court.
Appellant raises the following two issues on appeal:
1. Whether the lower court abused its discretion and committed error of law claiming jurisdiction over Helen Harper in violation of 20 Pa.C.S.[§] 5511(a) citing "service shall be no less than 20 days in advance of the hearing[?]"
2. Whether the lower court erred in granting the sale of 611 Swarthmore Avenue, Ridley Park, PA[] 19078 consisting of
1.3 acres of commercial land, 9,200 square foot mason[]ry commercial building, 3 bedroom frame residence, two car garage[,] and substantial hardware and building material inventory for $320,000 against the best interest of Helen Harper.Appellant's Brief at 5.
In his first issue, Appellant argues that the orphans' court lacked jurisdiction over the matter of Helen Harper's incapacity in the first instance because the court held a hearing on Ms. Harper's incapacity fewer than twenty days after providing her notice of the November 9, 2015 hearing, and because Ms. Harper did not have counsel at the hearing. Id. at 11. Appellant alleges that the Affidavit of Service of the Petition, which the Petitioner submitted as evidence to the orphans' court, was defective. Id. Appellant avers that the Affidavit of Service states that Ms. Harper received notice of the Petition at her home on October 27, 2015, but that Ms. Harper had been admitted to Wallingford Nursing Home on October 23, 2015. Thus, Appellant concludes Ms. Harper could not possibly have received personal service of the Petition at her home 4 days earlier. Id.
In its prior Rule 1925(a) Opinion, the orphans' court addressed the claims Appellant raises in his first issue in this appeal. First, with respect to Appellant's averment that the orphans' court did not provide Ms. Harper with statutory notice of the hearing regarding her capacity, thus, depriving the court of jurisdiction over this matter, the court specifically found that,
20 Pa.C.S. § 5511(a) requires that a petitioner personally serve an alleged incapacitated person with the Petition for Adjudication of Incapacity no less than 20 days in advance of the hearing on the Petition. --------
Helen Harper was properly served with notice of the Petition and the hearings in this matter as required by 20 Pa.C.S. § 5511(a). At the initial hearing on November 9, 2015, Robert George, Esquire, counsel for [the Delaware County Office of Services for the Aging], submitted into evidence an Affidavit of Service which was notarized and signed by Jane Ervin who attested that she had "personally served, read to, explained and left a copy of the CITATION WITH IMPORTANT NOTICE, Preliminary Decree, and accompanying Petition" upon Helen Harper.Orphans' Ct. Op., 3/10/16, at 6-7.
Appellant bases his argument on the court's lack of jurisdiction over Ms. Harper on the alleged defectiveness and invalidity of the Affidavit of Service. The Record before this Court, however, does not contain a copy of this document, nor does it contain a transcript from the November 9, 2015 hearing, at which Appellant may have raised the issue of service of the Petition. Appellant had the obligation to ensure that the certified record "contains all of the materials necessary for the reviewing court to perform its duty." Commonwealth v. Bongiorno , 905 A.2d 998, 1000 (Pa. Super. 2006) (citation omitted). Owing to the absence in the record of any evidence supporting this claim, we are unable to entertain this issue on appeal. See Commonwealth v. Kleinicke , 895 A.2d 562, 575 (Pa. Super. 2006).
Insofar as Appellant also baldly claims that Ms. Harper was prejudiced when the court held the November 9, 2015 hearing without providing her with counsel, the orphans' court opined as follows:
In light of the absence of Helen Harper at the November 9, 2015 hearing, the significance of the allegations regarding Helen Harper's condition and finances, and John Nilan, Esquire, appearing as opposing counsel on behalf of [Appellant], the [c]ourt appointed Jacquelyn Goffney, Esquire[,] Guardian Ad Litem on behalf of Helen Harper and scheduled this matter for an evidentiary hearing to be held on November 23, 2015 . . . [T]he court proactively appointed a Guardian Ad Litem for Helen Harper in order to ensure that the rights and best interests of Helen Harper were protected throughout this entire process.Orphans' Ct. Op, 3/10/16, at 6-7.
Following our review, we conclude that the orphans' court was plainly aware of the gravity of the issue before it, and the importance of protecting Ms. Harper's rights. Contrary to Appellant's unsupported claim, the court acted to ensure that, with the appointment of a Guardian Ad Litem, Ms. Harper had every possible protection against prejudice. Thus, Appellant's first issue fails.
In his second issue, Appellant alleges that the trial court erred in approving the sale of the Property for below fair market value, and that its decision was arbitrary and against the weight of the evidence. Appellant's Brief at 12, 15. He argues that the orphans' court erred in characterizing the inventory on the Property as "trash," and claims that Attorney Goffney inadequately advertised the sale. Id. at 13. Essentially, Appellant attempts to re-litigate on appeal the issues he raised at the hearing on the Petition.
Our standard of review of the findings of the orphans' court is deferential. In re Ware , 814 A.2d 725, 731 (Pa. Super. 2002). When reviewing a decree entered by the orphans' court, "this Court must determine whether the record is free from legal error and the court's factual findings are supported by the evidence." In re Estate of Devoe , 74 A.3d 264, 267 (Pa. Super. 2013) (citation and quotation marks omitted). "Because the [o]rphans' [c]ourt sits as the fact-finder, it determines the credibility of the witnesses and, on review, we will not reverse its credibility determinations absent an abuse of that discretion." In re Fiedler , 132 A.3d 1010, 1018 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa. 2016) (citation and quotation omitted).
The Honorable Chad F. Kenney has authored a comprehensive, thorough, and well-reasoned Opinion addressing the reasons supporting the court's conclusion that the sale of the Property was in the best interests of Ms. Harper, with references to the evidence and the testimony presented at the hearing on the Petition and relevant case law. After a review of the arguments of the parties and the record, we affirm on the basis of that Opinion, which found that Attorney Goffney presented clear and convincing evidence that Ms. Harper's financial interest is best served by the sale of the Property at the confirmed fair market value of $320,000. See Orphans' Ct. Op., 2/13/17 at 2-5.
Order affirmed. Jurisdiction relinquished.
Judge Panella joins the memorandum.
President Judge Gantman concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/14/2017
Image materials not available for display.