Opinion
J-S32001-17 No. 3138 EDA 2016
07-21-2017
IN RE: ESTATE OF ROSALIND T. SNYDER, AN ALLEGED INCAPACITATED PERSON UNDER LIMITED GUARDIANSHIP OF C. BARBARA LEMUNYON APPEAL OF: ROSALIND T. SNYDER
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order September 20, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): No. 2014-0465 BEFORE: GANTMAN, P.J., STABILE, J., and FITZGERALD, J. MEMORANDUM BY GANTMAN, P.J.:
Former Justice specially assigned to the Superior Court.
Appellant, Rosalind T. Snyder, appeals from the order entered in the Bucks County Court of Common Pleas, which reaffirmed Appellant's status as a partially incapacitated person and confirmed the position of Appellee, C. Barbara LeMunyon, as Appellant's limited guardian. For the following reasons, we affirm.
The trial court opinion sets forth the relevant facts and procedural history of this case. Therefore, we will only briefly summarize them. Appellant is an octogenarian who was living with her ex-husband, Reginald Snyder, and her son, Daniel Snyder. On December 22, 2014, the court adjudicated Appellant as a partially incapacitated person and appointed Appellee as limited guardian of Appellant's person and estate. Appellee's duties as limited guardian included oversight of Appellant's living conditions, finances, and medical needs. On October 13, 2015, Appellee filed a petition for review, alleging Appellant's homeowner's insurance had lapsed because of the deteriorated condition of the home. Appellee further stated that Appellant and her son were not cooperating with Appellee in allowing Appellee access to the home to perform her assigned duties and arrange for repairs. Appellee requested plenary guardianship powers so she could better protect Appellant and her property.
On June 23, 2016, the trial court held an initial hearing on the petition for review, focusing on Appellant's lack of homeowner's insurance and the property's deteriorated state. Appellant testified at this hearing, did not demonstrate an understanding of the importance of homeowner's insurance, and incorrectly stated she was presently covered by insurance. Appellant also stated she recently burned her hand while reaching into her broken dishwasher. After the hearing, the court authorized Appellee to spend up to $8,000.00 to repair Appellant's home in order to obtain homeowner's insurance, granted Appellee regular and periodic access to Appellant and her home without interference, and determined that an independent expert would review Appellant's cognitive status.
On August 11, 2016, the second part of the review hearing took place. At this hearing, the court heard cognitive status testimony from Appellant's primary care physician, Dr. Bruce Lieberman, and the court-appointed psychiatric evaluator, Dr. Euhna Kim. Dr. Lieberman stated he did not notice any change in Appellant's mental status beyond that of normal aging and found no sign of dementia. In contrast, Dr. Kim testified that, after a forty-five minute evaluation of Appellant, he concluded Appellant suffers from a moderate level of progressive dementia and is in need of plenary guardianship. Appellee also testified at this hearing, regarding the repairs made to Appellant's home and the reinstated homeowner's insurance. Appellee further requested additional funding for more repairs, as well as a lockbox for easier access to Appellant's home.
On August 26, 2016, the court issued an adjudication and decree reasserting Appellant's status as a partially incapacitated person and confirming Appellee's position as limited guardian. The court also authorized the use of a lockbox, the expenditure of an additional $3,000.00 on repairs, the disposal or repair of Appellant's broken dishwasher, an evaluation of Appellant's driving abilities, and further oversight of Appellant's medications.
Appellant filed a pro se notice of appeal on September 20, 2016. On September 26, 2016, the court issued an order pursuant to Pa.R.A.P. 1925(b), directing Appellant to file her statement of errors complained of on appeal within 21 days and noting that any issues not included in her statement would be waived. Appellant's former court-appointed counsel personally hand-delivered a copy of the order to Appellant's son on October 7, 2016. Appellant failed to comply.
In her brief, Appellant raises ten issues for our review:
[WHETHER THE] SUPERIOR COURT FAILED TO ENTER JUDGMENT FOR...APPELLANT WHEN...APPELLEE DID NOT FILE A BRIEF IN OPPOSITION WITHIN THE REQUIRED TIME LIMIT[?]
[WHETHER THE ORPHANS' COURT] ERRED WHEN [IT] FAILED TO INVESTIGATE DAVID SNYDER'S CRIMINAL BACKGROUND[?] DAVID SNYDER IS...APPELLANT'S ESTRANGED SON AND THE PERSON WHO INITIATED THIS ACTION IN 2014 FOLLOWING THE HOUSE FIRE. DAVID IS NO LONGER PARTY TO THIS LAWSUIT WHICH NEVER SHOULD HAVE BEEN ALLOWED TO PROCEED IN THE FIRST PLACE.
[WHETHER THE ORPHANS' COURT] ERRED WHEN [IT] FAILED TO INVESTIGATE THE MAY 28, 2014 FIRE AT THE SNYDER HOME OR TO ORDER REPORTS FROM THE FIRE MARSHALL AND THE INSURANCE INVESTIGATOR TO BE MADE PART OF THE RECORD[?]
[WHETHER THE ORPHANS' COURT] FAILED TO ISSUE AN OPINION IN ACCORDANCE WITH THE RULES OF EVIDENCE[?] [THE ORPHANS' COURT] IMPROPERLY IGNORED EVIDENCE GIVEN BY [APPELLANT]'S PRIMARY CARE PHYSICIAN IN RENDERING [ITS] DECISION.
[WHETHER THE ORPHANS' COURT] RECEIVED A PAYMENT IN KIND FROM STATE REPRESENTATIVE KATHY WATSON IN THE FORM OF A CAMPAIGN MAILING ON HIS BEHALF[?] THIS VIOLATES THE SEPARATION OF POWERS.
[WHETHER] THE SUPERIOR COURT [ERRED BECAUSE IT] HAS NEVER READ DR. LIEBERMAN'S REPORT[?] [APPELLANT] HAS BEEN UNDER DR. LIEBERMAN'S CARE FOR MORE THAN 11 YEARS.
[WHETHER] IN TESTIFYING THAT [APPELLANT] HAS DEMENTIA, DR. KIM FAILED TO EXERCISE DUE DILIGENCE IN HIS EXAMINATION AND FINDINGS[?] HE FAILED TO PRESENT CLEAR AND CONCISE EVIDENCE OF DEMENTIA AND HIS TESTIMONY DOES NOT MEET THE REQUIRED STANDARD OF EVIDENCE.
[WHETHER] DR. KIM IMPROPERLY REFERRED TO DR.
MOYER'S DISCREDITED REPORT IN HIS TESTIMONY[?] [DR. KIM] FAILED TO CONDUCT AN INDEPENDENT EXAMINATION OF...APPELLANT. IN HIS TESTIMONY, DR. KIM FIRST CITES DR. MOYER'S REPORT WHICH STATES [APPELLANT] FAILED THE MATH TEST AND THEN CONTRADICTS THAT REPORT BY SAYING THAT [APPELLANT] PASSED THE MATH TEST.(Appellant's Brief at 12-13).
[WHETHER]...APPELLEE, [C. BARBARA LEMUNYON], EXPRESSED AN INTEREST IN SELLING [APPELLANT]'S HOME WITHOUT PRESENTING EVIDENCE THAT [APPELLANT] IS UNABLE TO MAINTAIN THE HOME[?]
[WHETHER THE ORPHANS' COURT] ORDERED A TEST OF [APPELLANT]'S ABILITY TO DRIVE EVEN THOUGH THERE ARE NO TRAFFIC VIOLATIONS THAT WOULD INDICATE THAT [APPELLANT] IS UNFIT TO DRIVE[?] [A]PPELLANT'S ATTORNEY GAVE [THE ORPHANS' COURT] A COPY OF [APPELLANT]'S DRIVER'S LICENSE AND THE COURT [WAS] AWARE OF [APPELLANT]'S DRIVING RECORD.
As a prefatory matter, an appellant must timely comply whenever the trial court orders a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306 (1998). "[F]ailure to comply with the minimal requirements of Rule 1925(b) will result in automatic waiver of the issues raised." Greater Erie Indus. Development Corp. v. Presque Isle Downs , Inc., 88 A.3d 222, 224 (Pa.Super. 2014) (en banc) (emphasis in original). "[O]ur Supreme Court does not countenance anything less than stringent application of waiver pursuant to Rule 1925(b)." Id. In civil cases, the Rule requires: (1) the trial court must issue a Rule 1925(b) order directing an appellant to file a response within twenty-one days of that order; (2) the trial court must file the order with the prothonotary; (3) the prothonotary must enter the order on the docket; (4) the prothonotary must give written notice of the entry of the order to each party, pursuant to Pa.R.C.P. 236; and (5) the prothonotary must record Rule 236 notice on the docket. See Forest Highlands Community Ass'n v. Hammer , 879 A.2d 223, 227 (Pa.Super. 2005).
Instantly, Appellant filed her notice of appeal on September 20, 2016. On September 26, 2016, the court entered an order, with Rule 236 notice, directing Appellant to file a Rule 1925(b) concise statement of errors complained of on appeal within twenty-one days of entry of the order. Appellant was served with the order on October 7, 2016. Therefore, Appellant's statement was due on or before October 28, 2016, at the latest. Appellant did not comply.
The trial court issued its opinion on November 21, 2016, concluding Appellant had waived her issues for failure to file a court-ordered Rule 1925(b) statement, despite successful service upon Appellant "via her son and her former court-appointed counsel on October 7, 2016." ( See Trial Court Opinion, dated November 21, 2016, at 6). Given that the trial court directed Appellant to file a Rule 1925(b) statement and strictly followed the proper filing and notice procedures, and given that Appellant failed to comply with the court's order, we agree with the court that Appellant waived her issues for appellate review.
Moreover, the court substantiated its decision on the merits to continue the limited guardianship. ( See id. at 6-8) (finding expert testimony of court-appointed psychiatric evaluator, Dr. Kim, particularly compelling, due to Dr. Kim's expertise in geriatric psychiatry, greater time spent with Appellant focusing strictly on her cognitive status, and more in-depth testing conducted; totality of evidence adduced at trial established Appellant is at very least partially incapacitated and remains in need of limited guardian of both her person and estate; adjudication and decision under review continues to provide Appellant with certain degree of independence while addressing concerns about her finances and physical welfare). Accordingly, we affirm. See generally In re K.L.S., 594 Pa. 194, 197 n.3, 934 A.2d 1244, 1246 n.3 (2007) (stating where issues are waived on appeal, we should affirm rather than quash appeal).
Due to our disposition, we deny Appellant's open motion for an addendum to her Brief, her open motion to introduce new evidence on a possible conflict of interest, and her open application for relief in the form of a motion to introduce new evidence. --------
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 7/21/2017
Image materials not available for display.