J-A19017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: MICHAEL SABATINO, AN IN THE SUPERIOR COURT OF
ALLEGED INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: DISABILITY RIGHTS
PENNSYLVANIA
No. 3836 EDA 2015
Appeal from the Decree November 25, 2015
In the Court of Common Pleas of Montgomery County
Orphans' Court at No(s): 2014-X3350
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED NOVEMBER 30, 2016
Disability Rights Pennsylvania, formerly Disability Rights Network of
Pennsylvania (“DRN”)1, appeals the final decree, entered November 25,
2015, in the Court of Common Pleas of Montgomery County, adjudicating
Michael Sabatino, an alleged incapacitated person, to be totally incapacitated
person and appointing a limited guardian of the person for Michael Sabatino.
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
DRN notes in its brief: “DRN recently changed its corporate name to
Disability Rights Pennsylvania (DRP), and this Court substituted DRP in this
appeal. Since the record references DRN, however, Appellant will continue
to reference DRN in this Brief.” DRN’s Brief at 6. We likewise will refer to
Appellant as DRN in this memorandum.
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DRN contends: (1) The orphans’ court erred in denying Mr. Sabatino the
right to be represented by counsel of his choice; (2) The orphans’ court
erred by refusing to disqualify Mr. Sabatino’s appointed counsel; (3) The
orphans’ court’s determination that Mr. Sabatino was totally incapacitated
and its appointment of a limited guardian of the person was not supported
by clear and convincing evidence, and (4) The orphans’ court erred in
requiring DRN to pay the independent evaluator to testify. Based upon the
following, we affirm the orphans’ court’s final decree, and the orphans’
court’s related orders, with the exception of the order that required DRN to
pay the independent evaluator’s court appearance fee. We remand to the
orphans’ court for a hearing on the allocation of the expert’s fee for
testifying.
This appeal involves guardianship proceedings instituted on September
26, 2014, by Madelyn Harman (“petitioner” or “mother”), seeking to have
her adopted son, Mr. Sabatino, adjudicated an incapacitated person and to
have herself appointed plenary guardian of his person and estate. The
petition, filed by Patrick J. Bradley, Esquire, alleged Mr. Sabatino, age 26,
had been diagnosed as having pervasive developmental disorder, impulse
control disorder, and severe anxiety, that cause his incapacity and require
that he receive continuous monitoring and care. The petition also stated Mr.
Sabatino was living with his mother in Royersford, Montgomery County, was
receiving human services through the Pennsylvania Department of Public
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Welfare Office of Developmental Programs (“ODP”) through the Bureau of
Autism Services (“BAS”), and was enrolled in the Adult Waiver Autism
program for individuals with autism and/or autism spectrum disorders. See
Petition Under § 5511 of the Probate, Estates and Fiduciaries Code,
9/26/2014, at ¶¶2, 10, and 13. The petition averred, “Due to the alleged
incapacitated person’s current mental abilities and level of need, there are
no less restrictive alternatives to the appointment of Permanent Plenary
Guardian of the ESTATE and PERSON of the alleged incapacitated person.”
Id. at ¶16.
A preliminary decree was issued on September 30, 2014, scheduling a
hearing for November 5, 2014, which was later rescheduled to November
19, 2014. By letter to the court, dated October 24, 2014, and filed October
28, 2014, petitioner complied with Section 5511 of the Pennsylvania
Probate, Estates and Fiduciaries (PEF) Code, requiring notification to the
court “at least seven days prior to the hearing if counsel has not been
retained by or on behalf of the incapacitated person.” 20 Pa.C.S. § 5511(a).
Petitioner’s letter informed the court that counsel had not been retained for
Mr. Sabatino and no circumstances were known making it appropriate to
appoint counsel for him. See Notification to the Court of Non
Representation of Alleged Incapacitated Person, 10/28/2014.
On November 13, 2014, Shari A. Mamas, Esquire, of DRN, faxed a
letter to the orphans’ court that indicated DRN would be representing Mr.
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Sabatino in the guardianship proceedings, and that the matter would be
contested. See N.T., 7/28/2015, at 24.2 On the same day, November 13,
2014, Kelly Darr, Esquire, of DRN entered her appearance for Mr. Sabatino.
On November 14, 2014, the orphans’ court received a letter from Ms.
Darr, stating “‘BAS … asked DRN to provide advocacy services to Mr.
Sabatino after he was removed from [his] mother’s home and placed into
emergency respite due to abuse[/]neglect allegations against his family.’”
N.T., 7/28/2015, at 24. The letter further stated an Adult Protective
Services investigation had been triggered and was pending when the
guardianship petition was filed by petitioner’s mother, and “‘[c]onsequently,
DRN attorney, Shari Mamas, contacted [petitioner’s counsel,] Mr. Bradley,
on October 30, 2014, to request that he ask [the c]ourt to appoint
independent counsel for Mr. Sabatino.’” Id. at 25. Ms. Darr’s letter advised
the court that when Mr. Bradley informed DRN he would not seek
independent counsel for Mr. Sabatino, DRN Attorney Gabe Lorenzo,
community advocate Martine Lorenzo,3 and Ms. Darr met with Mr. Sabatino
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2
The orphans’ court, prior to the commencement of the guardianship
hearing, placed the procedural history of the case on the record. Therefore,
this procedural summary includes references to the July 28, 2015 transcript.
3
Martine DeLorenezo is a DRN lay advocate who “became involved with Mr.
Sabatino in the summer of 2014 at the behest of the Bureau of Autism
Services (BAS) of the Department of Human Services.” Response in
Opposition to Petitioner’s Motion to Disqualify Ms. Darr and DRN as
Respondent’s Counsel, 7/14/2015, at ¶1.
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to determine if he would like representation in the guardianship proceedings,
and Mr. Sabatino indicated he would like legal representation and he verbally
agreed to her representation for that purpose.4 See id. at 25.
On December 2, 2014, the orphans’ court held an in-chambers
conference with Ms. Darr and Mr. Bradley. “It was apparent to [the court]
from the outset that the situation was quite tense between th[e]se counsel
….” Id. at 26. However, the orphans’ court believed that
“[n]otwithstanding what was the obvious inability of counsel to communicate
… it was still possible at that point that an agreement could be reached as to
what would be in [Mr. Sabatino’s] best interest.” Id. “One [issue] was [Mr.
Sabatino’s] placement in a house in Philadelphia where he was
geographically removed from visits with his mother, his church, the job he
had formerly, and there were questions about whether or not, even if he is
incapacitated, does he need a guardianship ….” Id. at 26–27. At the end of
the conference, the orphans’ court set a 30-day deadline for the parties to
determine “whether or not there would be a resolution short of a hearing to
adjudicate incapacity.” Id. at 27. The orphans’ court “also made it clear
____________________________________________
4
Ms. Darr and Ms. Labella offered to represent Mr. Sabatino in the
guardianship hearing to oppose the petition at no charge. See Response in
Opposition to Petitioner’s Motion to Disqualify Ms. Darr and DRN as
Respondent’s Counsel, 7/14/2015, at ¶9.
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that if they could not do so, [the court] would be appointing independent
counsel to represent Mr. Sabatino.” Id.
On December 22, 2014, the orphans’ court received a letter from Mr.
Bradley, asserting that “‘[Mr. Sabatino’s] team members are not acting in
good faith,’” and requesting the court to appoint independent counsel for Mr.
Sabatino. Id. at 27. Mr. Bradley’s letter to the court relayed petitioner’s
concern that Mr. Sabatino “‘may be getting used as a pawn in a power
struggle by [DRN] to try to exploit the concept of self-determination[.]’” Id.
at 28.
Ms. Darr responded to the letter on December 24, 2014, and
“refute[d] the concerns outlined in Mr. Bradley’s letter about how the team
was at odds on the interests of [Mr. Sabatino],” and concluded by stating
that “‘There is no reason to appoint independent counsel. … Mr. Sabatino
has the right to choose his own counsel for his guardianship hearing, and he
has voluntarily retained DRN for this purpose.’” Id. at 29. Subsequently,
on January 5, 2015, the orphans’ court issued an order, appointing Diane M.
Zabowski, Esquire, as counsel for Mr. Sabatino. Id. See Order, filed
1/8/2015.
On March 4, 2015, the court held a conference with counsel, which
included Ms. Zabowski, who had requested the conference to discuss an
independent medical evaluation for Mr. Sabatino. “No one opposed it[, and]
ultimately it was decided that Barabara Malamut, a neuropsychologist …
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would … do a comprehensive evaluation of [Mr. Sabatino’s] cognitive
abilities.” N.T., 7/28/2015, at 30. On March 10, 2015, the orphans’ court
appointed Barbara Malamut, Ph.D., to conduct an independent
neuropsychological evaluation of Mr. Sabatino. The orphans’ court ordered
Montgomery County to make payment for the neuropsychological report
rendered by Dr. Malamut. See Order, 5/27/2015. Dr. Malamut’s report
opined Mr. Sabatino was totally incapacitated and recommended
appointment of a full plenary guardian of the person and estate for Mr.
Sabatino. See N.T., 9/9/2015, at 143; Trial Exhibit DRN-6, at 3.
On June 10, 2015, during a court conference, Ms. Zabowski and Mr.
Bradley indicated their willingness to stipulate to the admission into evidence
of Dr. Malamut’s report, without the need for Dr. Malamut’s presence at the
hearing. See N.T., 7/28/2015, at 31. Ms. Darr indicated she would
stipulate to admission of the report, but she wanted to examine Dr. Malamut
as to her conclusions. Id. The orphans’ court “made clear” that if Ms. Darr
wished to call Dr. Malamut, it would be the expense of DRN. Id. The
guardianship hearing was set for July 28, 2015.
On July 8, 2015, petitioner filed a motion to disqualify Ms. Darr and
DRN. Ms. Darr filed a responsive pleading on July 14, 2015, and the court
heard argument on the motion prior to the commencement of the July 28,
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2015, guardianship hearing.5 The orphans’ court denied the motion to
disqualify Ms. Darr as Mr. Sabatino’s counsel as moot, in light of its earlier
order appointing Diane Zabowski, Esquire, as counsel for Mr. Sabatino. See
N.T., 7/28/2015, at 38. The orphans’ court further ruled Ms. Darr would
remain in the case on behalf of DRN, to whom the court granted amicus
curiae status, and the court told Ms. Darr “you may participate fully” in the
proceeding. Id. at 38 (emphasis supplied). See also Order, 7/29/2015.
The court then proceeded to hear the case.
The first witness was the petitioner. She explained that Mr. Sabatino
and his two brothers came to live with her when Mr. Sabatino was seven,
and his brothers were four and two years old. N.T., 7/28/2015, at 53.
Before Mr. Sabatino was placed with her she was aware he was autistic and
did research and had training regarding that condition. Id. at 54. She
testified one of her present concerns was that Mr. Sabatino is easily swayed
and says what he thinks people want him to say to please them. Id. at 55.
She stated she petitioned to become his guardian because his Individual
Service Plan (ISP) team suggested she would need that authority to make
medical decisions for Mr. Sabatino that he would be incapable of making on
____________________________________________
5
The orphans’ court noted on the record: “In a brief telephone conference
this week, we agreed that the motion would be decided first and that there
would be no need for a hearing; rather, I would give each party a short
opportunity to argue its position.” N.T., 7/28/2015, at 6.
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his own. Id. at 56, 60–61. She also stated that she would accept a third-
party guardian, and agreed that Arc Alliance Advocacy Services would serve
as guardian for Mr. Sabatino, should the court determined a guardianship
was appropriate. Id. at 59–60. She testified Mr. Sabatino had not lived
with her since July, 2014. Id. at 62. She stated she had visited him in
Philadelphia two or three times for ISP meetings, and once his aides brought
him “a little closer for me, and we met at a place.” Id. at 62. After the
petitioner’s testimony, the petitioner rested. Id. at 78.
Ms. Zabowski then presented Mr. Sabatino, who was examined in
chambers. In his testimony, Mr. Sabatino testified he lived alone and two
aides came every day. Id. at 83–84. He stated he had been previously
employed, but was currently unemployed and looking for a job. Id. at 85–
87. He described his day and the help he received from the aides, other
individuals on his team, and specialists. He testified his aides “help [him] to
be a grown man.” Id. at 103. He further testified he wanted to “speak out
[for himself]”, and stated that “you have to fight your way.” Id. at 103,
104. Regarding why he had initially indicated he wanted to live in
Montgomery or Delaware County, and now wanted to live in Philadelphia, he
testified, “[I]t’s what my mom wants but that’s not right. It’s my choice.”
Id. at 108. On cross-examination, he testified he did not want a guardian
appointed for him. Id. at 131.
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DRN then began its case by calling members of Mr. Sabatino’s support
staff and BAS to testify about the services provided to him. After DRN had
presented its first two witnesses, the hearing was adjourned and a second
day of hearing was scheduled for September 9, 2015.
On August 14, 2015, DRN filed a motion to disqualify Ms. Zabowski.
Ms. Zabowski filed an answer with new matter on September 3, 2015. The
orphans’ court, on September 9, 2015, heard argument on the motion just
prior to the resumption of the guardianship proceedings.6 Ms. Darr argued
that Ms. Zabowski was violating Pennsylvania Rules of Professional Conduct
1.2 and 1.7 by acting in Mr. Sabatino’s best interests rather than acting to
support his defense. Ms. Zabowski’s attorney countered that Ms. Zabowski
was properly acting in accordance with Pa. Rules of Prof. Conduct, Rule 1.14,
which addresses the role of an attorney for a client with diminished capacity.
The orphans’ court denied DRN’s motion and the guardianship hearing then
resumed.7 See N.T., 9/9/2015, at 20.
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6
The orphans’ court explained that, similar to the previous motion for
disqualification filed by petitioner, it would hear argument on DRN’s motion
and then make a ruling. See N.T., 9/9/2015, at 4.
7
The orphans’ court noted in its opinion that petitioner proceeded pro se at
the second day of the hearing:
On July 10, 2015, the Supreme Court of Pennsylvania issued a
per curiam order placing counsel for the petitioner, Patrick J.
Bradley, Esquire, on temporary suspension pursuant to Pa.R.D.E.
208(f)(5) pending further definitive action by the Court.
(Footnote Continued Next Page)
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The only expert in this case was Dr. Malamut. At the hearing, all
counsel stipulated to the admission into evidence of Dr. Malamut’s
neuropsychological evaluation of Mr. Sabatino, and DRN called Dr. Malamut
in its case to testify on cross-examination. See N.T., 7/28/2015, at 48–50;
N.T., 9/9/2015, at 133–188. Ms. Zabowski also cross-examined Dr.
Malamut. Id. at 189–212. The evidentiary hearing concluded on September
9, 2015, and closing arguments were heard on October 8, 2015.
On October 16, 2015, DRN filed a motion to reopen and supplement
the record to provide evidence regarding the Adult Protective Services
investigation of Mr. Sabatino’s mother. Following the filing of an answer
with new matter, and a reply to new matter, the orphans’ court denied the
motion on November 25, 2015.
On the same day, November 25, 2015, the orphans’ court entered the
final decree at issue in this appeal. The orphans’ court adjudicated Mr.
Sabatino a totally incapacitated person, found that an extensive support
network obviates the need for the appointment of a plenary guardian, and
appointed Arc Alliance, through its Executive Director of Advocacy, Monica
Wiggins, as a limited guardian of the person of Mr. Sabatino with authority
_______________________
(Footnote Continued)
Pa.R.D.E. 208(f)(3) permitted Mr. Bradley to continue
representing petitioner, an existing client, for thirty days
following the issuance of the Order. Accordingly, Mr. Bradley
was permitted to act as counsel through the first day of hearing.
Orphans’ Court Opinion, 2/4/2016, at 5 n.3.
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to: (1) Authorize and consent to medical treatment and surgical procedures
necessary for the well-being of Mr. Sabatino, (2) Enter into contracts for Mr.
Sabatino and, as to contracts involving monetary obligations, consult with
Mr. Sabatino’s representative payee, (3) Have oversight over the
Commonwealth and providers of support services to ensure he receives all
appropriate services, and (4) Assist Mr. Sabatino in the development of self-
reliance and independence; ensure he has visits with his mother and other
family members as appropriate, attend all ISP meetings scheduled and any
other supportive services meetings, and have contact with Mr. Sabatino and
his support staff at least monthly. See Final Decree, 11/25/2015.
On December 18, 2015, DRN filed a notice of appeal on behalf of Mr.
Sabatino.8 Thereafter, Ms. Zabowski filed a motion to appoint Donald J.
Martin, Esquire, as appellate counsel, and the orphans’ court granted the
motion by order entered December 22, 2015.9
On February 4, 2016, DRN filed a Motion to Supplement the Record to
provide evidence that Mr. Sabatino and his guardian authorized DRN to
____________________________________________
8
DRN contacted Monica Wiggins, Executive Director of Arc Alliance, and
became authorized to file this appeal and represent Mr. Sabatino. See
Orphans’ Court Opinion, 2/4/2016, at 16; DRN’s Brief at 9; DRN’s Petition to
Supplement the Record, 1/8/2016, at 2–3.
9
The orphans’ court noted in its opinion: “Ms. Zabowski does not do
appellate work while Mr. Martin is frequently appointed by the Court of
Common Pleas of Montgomery County exclusively for appellate purpsoes at a
reduced hourly rate.” Orphans’ Court Opinion, 2/4/2016, at 15 n.7.
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represent him on appeal. The orphans’ court dismissed the motion as moot
in light of the Superior Court’s order, dated January 19, 2016. See Order,
2/4/2016.
On January 19, 2016, this Court issued an order granting DRN’s
application for correction to amend the caption of this appeal, as follows:
The caption is AMENDED to read: “APPEAL OF: DISABILITY
RIGHTS NETWORK OF PA.”
The trial court removed the Disability Rights Network of PA as
counsel for Michael Sabatino, and appointed Diane M. Zabowski,
Esquire, as attorney of record for Michael Sabatino. There is no
indication that Attorney Zabowski withdrew or was removed as
attorney of record. Instead Disability Rights Network of PA
appeals, inter alia, from the order removing it as counsel and
attaching Attorney Zabowski as counsel for Michael Sabatino.
Accordingly, this Court’s Prothonotary is DIRECTED to list
Disability Rights Network of PA as Appellant, Madelyn Harmon,
as pro se Appellee, Michael Sabatino as Participant, Attorney
Zabowski as Counsel for Michael Sabatino, and Attorney Donald
Martin as Co-Counsel for Michael Sabatino.
Per Curiam Order, 1/19/2016. In addition, on February 12, 2016, this Court
denied the application to quash filed by Michael Sabatino, through his
counsel, Ms. Zabowski and Mr. Martin. This Court’s order stated:
The motion of Michael Sabatino, by his court appointed
attorneys, to quash this appeal from the November 25, 2015
final decree, is hereby DENIED as moot in light of this Court’s
order granting the motion for correction filed by the Disability
Rights Network of PA. See In Re: Sabatino, No. 3836 EDA
2015 (Pa. Super. January 19, 2016).
Per Curiam Order, 2/12/2016.
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Based on this Court’s orders of January 19, 2016, and February 12,
2016, it is clear that DRN has standing to appeal the orders of the orphans’
court that (1) disqualified Ms. Darr as Mr. Sabatino’s counsel, (2) denied
DRN’s motion to disqualify Ms. Zabowski, and (3) required DRN to
compensate Dr. Malamut for her time in court. While this Court’s orders may
be ambiguous as to DRN’s standing to appeal the final decree appointing a
limited guardian for the person of Mr. Sabatino, because Mr. Sabatino’s
court-appointed guardian authorized DRN to file this appeal on behalf of Mr.
Sabatino, we find DRN does have standing to challenge the final decree.
Turning to the issues raised by DRN, we first address DRN’s contention
the orphans’ court erred in denying Mr. Sabatino the right to choose his own
counsel.
When reviewing a trial court’s order on disqualification of
counsel, we employ a plenary standard of review. Courts may
disqualify attorneys for violating ethical rules. On the other
hand, courts should not lightly interfere with the right to counsel
of one’s choice. Thus, disqualification is appropriate only when
both another remedy for the violation is not available and it is
essential to ensure that the party seeking disqualification
receives the fair trial that due process requires.
Weber v. Lancaster Newspapers, Inc., 878 A.2d 63, 80 (Pa. Super.
2005) (citations omitted).
Preliminarily, we note that it would have been preferable for the
orphans’ court to hold a hearing prior to issuing its January 5, 2015, order
that appointed Ms. Zabowski as Mr. Sabatino’s counsel, and effectively
disqualified Ms. Darr as his counsel. See Order, filed 1/8/2015. However,
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the issue arose again on July 8, 2015, when petitioner filed a motion to
disqualify Ms. Darr and DRN. On July 28, 2015, the orphans’ court heard
argument on the motion, and Mr. Bradley and Ms. Darr argued their
respective positions to the court.10 At that time, the orphans’ court
discussed the reasons for its January 5, 2015 order. See N.T., 7/28/2015,
at 29, 31–39. As already stated, the orphans’ court denied the motion to
disqualify Ms. Darr from the case as moot, ruled Ms. Darr was present on
behalf of DRN, to whom the court granted amicus curiae status, and stated
Ms. Darr was permitted to “participate fully” in the proceeding. Id. at 38
(emphasis added). The court’s ruling was reduced to an order that provided,
in part:
[T]he motion is hereby DENIED as MOOT pursuant to this
Court’s earlier advices that Kelly Darr, Esquire, may not
represent Michael Sabatino, an alleged incapacitated person, and
pursuant to this Court’s appointment of Diane M. Zabowski,
Esquire, as his counsel on January 5, 2015. The Disability Rights
Network is granted amicus curiae status and permitted to
participate herein.”
Order, 7/29/2015.
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10
The orphans’ court judge acknowledged that when he appointed Ms.
Zabowski on January 8, 2015, “I should have issued an order, perhaps,
directing you [Ms. Darr] to withdraw your appearance on behalf of [Mr.
Sabatino] and enter your appearance on behalf of [DRN]. I don’t know that
that would have said anything that wasn’t already said, but, perhaps
procedurally, it might have been a better idea.” N.T., 7/28/2015, at 37.
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In its opinion, the orphans’ court summarized its reasons for
appointing Ms. Zabowski as Mr. Sabatino’s counsel after Ms. Darr had
entered her appearance on Mr. Sabatino’s behalf:
The Court’s reasoning in denying DRN the right to represent Mr.
Sabatino and its appointment of Ms. Zabowski was stated
multiple times on and off the record throughout these tortuous
proceedings. To recap, first and foremost, in every contested
guardianship proceeding in Montgomery County for more than
twenty years, if an alleged incapacitated person does not retain
counsel independently, this Court has appointed independent
counsel whose loyalty to the alleged incapacitated person cannot
be questioned. Second, because DRN was inextricably
intertwined with the various entities making up Mr. Sabatino’s
support team, which Mr. Sabatino’s petitioning mother deemed
antagonistic to her, the appointment of independent counsel was
necessary to avoid the appearance of an unfair advantage.
Orphans’ Court Opinion, 2/4/2016, at 17–18. Additionally, the orphans’
court opined:
After the filing of the petition, DRN, which was already providing
lay advocacy services to Mr. Sabatino, sought to become his
legal counsel as well. Notwithstanding Mr. Sabatino’s well-
documented and known intellectual disabilities, Ms. Darr and
Gabriella Labella (a DRN staff attorney) went to visit Mr.
Sabatino in his apartment on their own initiative. Those
attorneys allege that Mr. Sabatino agreed to let them represent
him (at no charge) pursuant to his statement that he did not
want a guardian. This was hardly a situation where Mr. Sabatino
sought out and retained independent counsel to represent him.
Id. at 18–19.
With regard to this final finding, the orphans’ court, on the record, had
distinguished In re Estate of Rosengarten, 871 A.2d 1249 (Pa. Super.
2005), cited by DRN in support its position that Mr. Sabatino had the right to
choose his own counsel:
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[I]n that case [] Ms. Rosengarten wrote to the court a very
cogent and practical letter, and, yes, it did involve her right to
retain her own counsel; although, it was under far different
circumstances than that which was involved here. There the
guardian was filing a petition to sell Ms. Rosengarten’s house,
and Ms. Rosengarten was of the opinion that her counsel court-
appointed was not speaking for her and would not speak for her;
so she went out to retain her own counsel. That counsel didn’t
approach her; she approached them. And the court ultimately
said under those circumstances, she had the right to do so.
None of those facts are the facts of this case, and I stand by
what I said earlier that this case follows the same pattern that I
have done for 21 years.
N.T., 7/28/2015, at 39.
DRN argues the court’s findings do not support the court’s January 5,
2015, decision to appoint Ms. Zabowski to represent Mr. Sabatino, and
effectively disqualify Ms. Darr. First, DRN asserts that because Ms. Darr had
entered her appearance for Mr. Sabatino, there was no cause for the court to
appoint Ms. Zabowski. See DRN Brief at 22–23.
Furthermore, DRN contends the orphans’ court erred in suggesting Mr.
Sabatino lacked capacity to authorize Ms. Darr and DRN to represent him
due to his disabilities. DRN relies on Rosengarten, supra, and argues
“even individuals who are adjudicated incapacitated have the right to
representation by counsel of their choice.” See DRN’s Brief at 23.
Finally, DRN objects to the court’s reasoning that “DRN was
inextricably intertwined with the various entities making up Mr. Sabatino’s
support team,” which “Mr. Sabatino’s petitioning mother deemed
antagonistic to her [so] the appointment of independent counsel was
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necessary to avoid the appearance of an unfair advantage.” Orphans’ Court
Opinion at 18.
Having carefully considered DRN’s arguments in light of the record, we
conclude that, even accepting, arguendo, DRN’s claim that the court’s
findings do not justify disqualification of Ms. Darr as Mr. Sabatino’s counsel,
DRN’s claim fails because the court’s appointment of Ms. Zabowski as Mr.
Sabatino’s counsel neither ended Ms. Darr’s and DRN’s involvement in the
case, and nor Ms. Darr’s efforts on behalf of Mr. Sabatino.
This court has held that “if the certified trial record does not contain
sufficient facts to support the trial court’s ruling [to disqualify counsel], and
if that ruling had a harmful effect upon the outcome of the case, the only
remedy is to grant a new trial.” McCarthy v. Southeastern Pa. Transp.
Auth., 772 A.2d 987, 995 (Pa. Super. 2001). Harmless error is defined as
an error that does not affect the verdict. Yacoub v. Lehigh Valley Medical
Associates, P.C., 805 A.2d 579, 590 (Pa. Super. 2002).
Here, the orphans’ court made clear that Ms. Darr would remain in the
case representing DRN, to which amicus curiae status was granted, and she
was allowed to “participate fully” in the guardianship proceedings. N.T.,
7/28/2015, at 38 (emphasis added); see also Order, 7/29/2015. The
record reflects that throughout the proceeding, Ms. Darr forcefully advocated
for Mr. Sabatino’s position against the guardianship by presenting witnesses,
cross-examining witnesses, and making legal argument to the court.
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Consequently, we conclude that the orphans’ court’s disqualification of Ms.
Darr as Mr. Sabatino’s counsel was harmless error that did not affect the
final decree.
DRN, however, contends the orphans’ court’s ruling was harmful
because: (1) Once Ms. Darr was removed as Mr. Sabatino’s counsel, she was
no longer able to meet privately with him, and had she been able to
maintain a confidential attorney-client relationship with him, she may well
have put forward additional testimony from him and had him evaluated by
another expert; (2) Mr. Sabatino unequivocally testified on the record that
he did not want to have a guardian appointed, and Mr. Sabatino was entitled
to have an attorney who was willing to advance his objective, which his
appointed counsel indisputably refused to do; (3) Rather than requiring
petitioner to prove by clear and convincing evidence that Mr. Sabatino needs
a guardian, the orphans’ court allowed appointed counsel for Mr. Sabatino to
put on evidence in favor of guardianship; (4) The orphans’ court’s removal
of Mr. Sabatino’s chosen counsel prejudiced him by precluding him from
pursuing an appeal since his court-appointed counsel did not file an appeal
and, in fact, sought to quash the instant appeal, and (5) The appointment of
alternative counsel for Mr. Sabatino may prejudice him well into the future
because it is likely the court will not allow him to choose his own counsel and
will compel his representation by appointed counsel. See DRN’s Reply Brief
at 7–9.
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Furthermore, DRN relies on the United States Supreme Court decision
in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), which held that
the erroneous disqualification of counsel is a “structural error” that is not
subject to a harmless error analysis. DRN’s Reply Brief at 4. Although,
unlike Gonzalez, the present case involves neither a criminal defendant nor
Sixth Amendment violation, DRN maintains that the reasoning of Gonzalez
Lopez applies equally here because the guardianship “infringes upon Mr.
Sabatino’s liberty interests.” DRN’s Reply Brief at 5.11
We are not persuaded by the above arguments for the following
reasons: (1) Ms. Darr had a confidential attorney-client relationship with Mr.
Sabatino until Ms. Zabowski was appointed as his counsel, and continued to
have contact with him thereafter in the presence of Ms. Zabowski, and DRN
fails to identify any additional witnesses that it wanted to call, nor any
denied opportunity to challenge the expert’s report; (2) The orphans’ court
was fully aware of Mr. Sabatino’s desire not to have a guardian, and allowed
Ms. Darr to fully advance this position; (3) Ms. Zabowski told the court Mr.
Sabatino did not want a guardian; (4) DRN has been permitted by this Court
to proceed on appeal to litigate the final decree and the court’s orders; and
____________________________________________
11
DRN points to In re Doe 06-C, 948 So.2d 30, 32 (Fla. Dist. Ct. App.
2006), where the Florida District Court of Appeals applied Gonzalez Lopez
in a case involving a minor’s petition for a judicial waiver of parental notice
of termination of pregnancy. See DRN Reply Brief at 5.
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(5) DRN’s assertion that Mr. Sabatino will not be able to choose his own
counsel in the future is speculative. Accordingly, DRN’s contention that the
orphans’ court’s disqualification of Ms. Darr was not harmless error fails.
Furthermore, we reject DRN’s reliance on Gonzalez Lopez for the
proposition that the harmless error standard does not apply, as neither a
criminal defendant nor Sixth Amendment issue is presented by this case.
In sum, we find that the court’s order appointing Ms. Zabowski as Mr.
Sabatino’s counsel was not error. Furthermore, her appointment as a
replacement for, rather than in addition to, Ms. Darr was harmless error,
since Ms. Darr was permitted to remain in the case on behalf of DRN, amicus
curiae, and to fully advocate Mr. Sabatino’s position in opposition to the
guardianship petition. Consequently, no relief is due on the first issue raised
by DRN.12
Secondly, DRN contends the orphans’ court erred in refusing to
disqualify Ms. Zabowski as Mr. Sabatino’s counsel. “When reviewing a trial
court’s order on disqualification of counsel, we employ a plenary standard of
review.” Weber v. Lancaster Newspapers, Inc., supra, 878 A.2d at 80.
DRN argues that Ms. Zabowski failed to act as adversarial counsel for
Mr. Sabatino, and instead essentially acted as a guardian ad litem by
____________________________________________
12
To the extent that DRN contends that the orphans’ court erred in
appointing Mr. Martin as appellate co-counsel for Mr. Sabatino in this appeal,
DRN can show no harm as DRN has been permitted by this Court to proceed
with this appeal and challenge the final decree.
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advocating in favor of guardianship. In this regard, DRN claims Ms.
Zabowski violated her ethical duties to Mr. Sabatino to abide by his wishes.
DRN points to Pennsylvania Rule of Professional Conduct 1.2(a), which
provides that “a lawyer shall abide by a client’s decisions concerning the
objectives of representation[.]” DRN also cites Pa. Rules of Prof. Conduct,
Rule 1.7(a), which provides that, subject to certain specified exceptions, “a
lawyer shall not represent a client if the representation involves a concurrent
conflict of interest.” DRN argues Ms. Zabowski failed to give her undivided
loyalty to her client, in violation of Rule 1.7(a), and failed to act in
accordance with her client’s objective to oppose guardianship, in violation of
Rule 1.2(a), and disclosed Mr. Sabatino’s confidences in violation of Pa.
Rules of Prof. Conduct, Rule 1.6. DRN further maintains that by allowing Ms.
Zabowski to represent Mr. Sabatino’s best interests and denying him
adversarial counsel, the court violated Mr. Sabatino’s bests interests.
DRN, in its motion seeking to disqualify Ms. Zabowski, alleged Ms.
Zabowski had acted improperly by advising the orphans’ court at an in
chambers conference that Mr. Sabatino needed some form of guardianship,
and pursuing an objective contrary to Mr. Sabatino’s wishes to oppose the
guardianship. See DRN’s Motion to Disqualify, 8/14/2015, at ¶¶26–27. In
support of its motion, and in its appellate brief, DRN cites two cases for the
proposition that court appointed counsel must take an adversarial position
on behalf of the alleged incapacitated person. See DRN’s Brief at 32–34,
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citing In re M.R., 638 A.2d 1274 (N.J. 1994) and In re Lee, 754 A.2d 426
(Md. Ct. Spec. App. 2000). These cases, however, are from other
jurisdictions and are not controlling or persuasive.
The role of counsel in a guardianship proceeding is not clearly defined
in the guardianship statute. See 20 Pa.C.S. § 5511(a) (providing for court
appointed counsel for the alleged incapacitated person). The following
provisions of the PEF Code guide our review. Section 5501 of the PEF Code
defines an incapacitated person as:
[A]n 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 or totally unable to
manage his financial resources or to meet essential requirements
for his physical health and safety.
20 Pa.C.S. § 5501. Furthermore, Section 5502 states the purpose of
Chapter 55 of the Code, dealing with incapacitated persons, as follows:
Recognizing that every individual has unique needs and differing
abilities, it is the purpose of this chapter to promote the general
welfare of all citizens by establishing a system which permits
incapacitated persons to participate as fully as possible in
all decisions which affect them, which assists these persons
in meeting the essential requirements for their physical health
and safety, protecting their rights, managing their financial
resources and developing or regaining their abilities to the
maximum extent possible and which accomplishes these
objectives through the use of the least restrictive alternative;
and recognizing further that when guardianship services are
necessary, it is important to facilitate the finding of suitable
individuals or entities willing to serve as guardians.
20 Pa.C.S. § 5502 (emphasis added).
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In light of these provisions, counsel appointed to represent the alleged
incapacitated person must present the alleged incapacitated person’s own
position to the court. See generally, 20 Pa.C.S. § 5502. However, counsel
must also consider the interests of the alleged incapacitated person under 20
Pa.C.S. § 5501 (defining incapacitated person). In this regard, counsel’s
ethical obligations are set forth at Pa. Rules of Prof. Conduct, Rule 1.14,
regarding representing a client with diminished capacity.
Rule 1.14, which addresses representation of a person with diminished
capacity, states:
a) When a client’s capacity to make adequately considered
decisions in connection with a representation is diminished,
whether because of minority, mental impairment or for
some other reason, the lawyer shall, as far as reasonably
possible, maintain a normal client-lawyer relationship with
the client.
b) When the lawyer reasonably believes that the client has
diminished capacity, is at risk of substantial physical,
financial or other harm unless action is taken and cannot
adequately act in the client’s own interest, the lawyer may
take reasonably necessary protective action, including
consulting with individuals or entities that have the ability to
take action to protect the client and, in appropriate cases,
seeking the appointment of a guardian ad litem, conservator
or guardian.
c) Information relating to the representation of a client with
diminished capacity is protected by Rule 1.6. When taking
protective action pursuant to paragraph (b), the lawyer is
impliedly authorized under Rule 1.6(a) to reveal information
about the client, but only to the extent reasonably
necessary to protect the client’s interests.
Pa. Rules of Prof. Conduct, Rule 1.14.
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The trial court, in support of its ruling denying DRN’s motion to
disqualify Ms. Zabowski, opined:
The gravamen of the charges centers on Ms. Zabowski’s concern
for her client’s best interests which she continued to weigh
throughout the proceedings, rather than blindly opposing any
guardianship, regardless of the circumstances. Ms. Zabowski, an
experienced and capable trial attorney who has represented
many alleged incapacitated persons both privately and pursuant
to court appointments, did nothing to deserve this ad hominem
assault. Furthermore, all of Ms. Zabowski’s actions and the
outcome for which she argued were proper under Pa. Rule of
Professional Conduct 1.14, which deals with a client with
diminished capacity.
Orphans’ Court Opinion, 2/4/2016, at 20. We find no basis upon which to
find error in this analysis and the court’s attendant ruling.
Here, after being appointed to represent Mr. Sabatino,13 Ms. Zabowski
met with him and, based on her personal experience of representing alleged
____________________________________________
13
Although the order appointing Ms. Zabowski as Mr. Sabatino’s counsel did
not refer to her as “independent” counsel, it is clear from the judge’s
discussions on the record and his opinion that his intent was that Ms.
Zabowski represent both Mr. Sabatino’s legal interest and best interests in
accordance with Rule 1.14.
At the time of her appointment, the Honorable Stanley Ott, an
Orphans’ Court Judge with more than 20 years’ experience, knew that the
petition alleged Mr. Sabatino had been diagnosed as having a pervasive
developmental disorder, which was not denied by any answer; that Ms. Darr
had fully adopted Mr. Sabatino’s position against the guardianship petition;
and that Mr. Sabatino’s mother was requesting a plenary guardianship for
Mr. Sabatino.
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incapacitated persons, concluded he was a client with diminished capacity. 14,
Subsequently, and before the initial hearing on the guardianship petition,
Ms. Zabowski received Dr. Malamut’s report, opining Mr. Sabatino was
“totally unable to meet the essential requirements for his physical health and
safety (20 Pa.C.S.A. § 5505),” and recommending a full plenary guardian for
the person and the estate of Mr. Sabatino.15 Ms. Zabowski called Mr.
Sabatino as a witness so that he could testify as to his own desires, and he
was cross-examined by Ms. Darr. See N.T., 7/28/2015, at 68, 81–142.
Based on our review, we agree with the orphans’ court that Ms.
Zabowski, an experienced attorney,16 did not violate her duty to Mr.
Sabatino when she acted in accordance with Pa. Rules of Prof. Conduct, Rule
1.14.17 Ms. Zabowski reasonably believed, based on the evaluation of Dr.
____________________________________________
14
See Answer with New Matter to Motion to Disqualify Diane M. Zabowski,
Esquire, as Counsel for Respondent, Michael Sabatino, 9/3/2015, ¶82.
15
Id. at ¶84; Trial Exhibit DRN-6, at 3.
16
The orphans’ court stated, “Frequently, over the last 21 years, the person
appointed [for the alleged incapacitated person] has been Diane Zabowski …
I’ve used her a lot.” N.T., 7/28/2015, at 33.
17
This author was a member of the Pennsylvania Supreme Court’s Elder Law
Task Force, which issued a Report and Recommendations of the Elder Law
Task Force in November, 2014, and currently serves as Chair of the Advisory
Council to the Office of Elder Justice in the Courts. (Rec. 1 & 2). The
Guardians and Counsel Committee of the Task Force addressed the role of
counsel in guardianship matters, and made findings, including:
a. Representation of diminished capacity client
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
The Pennsylvania Rules of professional Conduct provide
excellent and adequate guidance.31 [31 Pa. R. Prof’l Conduct
1.14 – Client with Diminished Capacity] ….
b. Representation of respondent during proceedings to
adjudicate incapacity
The attorney must balance both best interests and zealous
advocacy. Pa.R.Prof’l Conduct 1.14, including comments,
provides an excellent roadmap for the appropriate application
of each standard.
Report and Recommendations of the Elder Law Task Force, 11/2014,
Guardians and Counsel Committee Report, § VIII.B.1.a.-b., at 50.
Among the Categorized Recommendations of the Elder Law Task Force
to the Supreme Court of Pennsylvania are the following recommendations:
Recommendation 51: The Task Force recommends that the
Orphans’ Court Procedural Rules and/or Disciplinary Rules be
amended to require attorneys to clarify to the client , the court,
and all other involved parties which role or roles counsel is
assuming and to clarify those role(s) through a letter of
engagement stating who is being represented and describing
counsel’s role. It should also be required that these role(s) be
restated to the court when entering an appearance with the
court. See Guardians and Counsel Committee Report, §
VIII.C.1.d. Page 51
****
Recommendation 126: The Task Force recommends that
discussions among attorneys and judges to better define the
roles of counsel in guardianship matters be encouraged, and
involve the participation of the PBA and local bar associations.
See Guardians and Counsel Committee Report, § VIII.C.1.a.
Page 51
Recommendation 127: The Task Force recommends that the
PBA and local bar associations be involved in providing support,
advice, and ethical counsel for attorneys willing to assume any of
the roles of counsel in a guardianship matter. See Guardians
and Counsel Committee Report, § VIII.C.1.c. Page 51
(Footnote Continued Next Page)
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Malamut, that her client had diminished capacity and was at risk for
substantial physical, financial or other harm, and it was appropriate to seek
the appointment of a guardian. See Pa. Rules of Prof. Conduct, Rule
1.14(b).
After DRN’s motion to disqualify Ms. Zabowski was denied and the
proceeding resumed, Ms. Zabowski cross-examined Dr. Malamut, and, in her
closing, highlighted Mr. Sabatino’s view that he did not need a guardian.
See N.T., 10/8/2015, at 46. In doing so, Ms. Zabowski acted properly in
making Mr. Sabatino’s position clear to the court.
Furthermore, we reject DRN’s contention that Ms. Zabowski breached
her duty under Pa. Rules of Prof. Conduct, Rule 1.6(a) to maintain Mr.
Sabatino’s confidences by framing a question to Mr. Sabatino based on
information he had provided to her. DRN asserts, “In an effort to show that
Mr. Sabatino frequently changes his mind, Ms. Zabowski revealed that he
previously told her that he wanted to live in Montgomery County or
Delaware County, rather than Philadelphia.” See DRN’s Brief at 35, citing
N.T., 7/28/2015, at 107–108. We find this question was permissible under
Rule 1.14(c). Moreover, we fail to understand how this question was a
breach of confidence since Mr. Sabatino’s mother testified she was
_______________________
(Footnote Continued)
Id. at 238, 244.
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concerned Mr. Sabatino was easily swayed and says what he thinks people
want him to say to please them, Dr. Malamut’s report indicated Mr. Sabatino
“appeared overly eager to please the examiner,”18 and the orphans’ court
judge also discussed in his opinion that it was clear from Mr. Sabatino’s
examination that he wished to please whoever was asking him questions.
See Orphans’ Court Opinion, 2/4/2016, at 6–7.
Finally, we reject DRN’s extensive argument that the orphans’ court
denied Mr. Sabatino due process by allowing Ms. Zabowski to represent his
best interests and denying him adversarial counsel to oppose the
guardianship. As already discussed, Ms. Zabowski presented Mr. Sabatino
as a witness, cross-examined Dr. Malamut, and presented Mr. Sabatino’s
position to the court, and Ms. Darr, representing DRN as amicus curiae,
continually and forcefully advocated Mr. Sabatino’s position against any form
of guardianship. The desired balance between zealous advocacy and best
interests was achieved throughout the proceedings. Accordingly, we reject
DRN’s claims that the orphans’ court erred in denying Mr. Sabatino due
process.
Third, DRN argues that the orphans’ court’s appointment of a limited
guardian for the person of Mr. Sabatino is not supported by clear and
convincing evidence.
____________________________________________
18
Trial Exhibit DRN-6, at 10.
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Our standard of review is well established: “The orphans’ court’ 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.”
Rosengarten, supra, 871 A.2d 1249, 1253 (Pa. Super. 2005).
Section 5511(a) of the PEF Code provides, in relevant part:
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).
As already discussed, an “incapacitated person” is defined as:
[A]n 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 or totally unable to
manage his financial resources or to meet essential requirements
for his physical health and safety.
20 Pa.C.S. § 5501. Furthermore,
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, 395 Pa. 459, 150 A.2d 525,
526 (1959). Our 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. Id. “A finding of mental incompetency is
not to be sustained simply if there is any evidence of such
incompetency but only where the evidence is preponderating and
points unerringly to mental incompetency.” Id. at 527.
In re Hyman, 811 A.2d 605, 608 (Pa. Super. 2002).
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At the close of the hearing, the orphans’ court judge placed his
findings of facts and conclusions of law on the record.19 See 20 Pa.C.S. §
5512.1(a).20 The orphans’ court judge stated:
Characteristically, [Dr. Malamut’s] report, issued April 3 of 2015,
was comprehensive, detailed, and quite specific outlining the
results of multiple tests, which I will not go over here; however,
____________________________________________
19
See N.T., 10/8/2015, at 54–74.
20
Section 5512.1(a) provides:
In all cases, 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.
(5) The duration of the guardianship.
(6) The court shall prefer limited guardianship.
20 Pa.C.S. § 5512.1(a).
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I will highlight several of the pertinent findings in that report,
which is not to be to the exclusion of others, but I think the ones
that matter the most for this analysis are as follows:
From page 2: “In addition to autism, Michael has mild
intellectual impairment with extremely low verbal and visual
perceptual reasoning abilities. His academic skills are
rudimentary. While he can read words at a fourth-grade level,
his comprehension is estimated to fall at the first-grade level.
“In addition, Michael had difficulty when tasks were reliant
on more complex verbal and visual spacial reasoning skills that
involved executive functions, such as divided attention and
working memory, which also were extremely low.
“Moreover, his weaknesses with attention and receptive
language skills have a negative impact on his ability to acquire
information that he hears only once.”
From page 3: “Because he has problems with abstract
reasoning, he cannot always generalize past learning to new
situations and needs guidance whenever a new problem arises.
“Further, his attention and working memory impairments
interfere with his ability to process a situation fully and
appreciate the risks and benefits to make sound decisions.
“Neurocognitive and social disabilities and emotional
vulnerabilities have a substantial negative impact on his ability
to function in a safe manner with total independence, and he will
always be in need of some level of support in all aspects of his
life, including but not limited to living arrangements, medical and
financial management and decision making, negotiating social
relationships, finding and maintaining a job, and transportation.”
Ultimately, Dr. Malamut opined that “Michael is incapable
of receiving and evaluating medical and financial information
effectively and consistently making decisions in a rational and
consistent manner to such an extent that he is totally unable to
meet the essential requirements for his physical health and
safety.”
That’s pretty unequivocal, and it’s pretty certain, and it’s
understandable, and it’s believable, and it’s credible, because in
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addition to those opinions, which were backed up when she was
cross-examined, she never wavered.
I had the opportunity to see and listen to Michael as he
was examined by counsel in my chambers on the first day of
trial. He’s a remarkably likable young man in every way, very
affable, very pleasant, instantly likeable, but at the same time,
objectively its very clear that the limitations outlined by Dr.
Malamut are real, and they are pervasive.
I quickly determined that he was easily led. I would have
no difficulty concluding that I could have gotten Michael to agree
to virtually anything, I think, because I think all it really takes is
a kind voice with a smile, and he’ll pretty much go along with
what you're saying. That was apparent.
Thus, looking at the criteria in the determination section,
which counsel have cited to, namely 5512.1, Subsection (a) asks
the Court to consider and make specific findings concerning,
one, the nature of any condition or disability which impairs the
individual's capacity to make and communicate decisions and the
extent of the individual’s capacity to make and communicate
decisions. Well, that’s what I just read from [Dr.] Malamut. She
said it as well as I can say it. I find her credible, and I accept her
testimony in full in that regard.
I accept further that her testimony to the effect that this
will never change is credible and accurate. To the extent of
Michael’s disabilities, his rudimentary skills, his fourth-grade
reading level with a first-grade comprehension is something that
we have to deal with and that he has to deal with.
I think in this section [20 Pa.C.S. § 5512.1(a)] the most
difficult one to draw conclusions about and make findings on --
although I will -- is Subsection 3, and that says to consider 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 trust.
The latter part of that has no application here. Michael has
never executed any documents and could not execute any
document as Dr. Malamut made perfectly clear. He does not
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have the capacity to sign a valid power of attorney or healthcare
proxy or anything of that event.
****
I do think that Michael can benefit from an array of
services, some of which are being provided for him, but I don’t
believe that the services in place and the way they are being
administered -- … --I don’t believe that they are adequate
substitutes for a guardian here.
****
I want to make it clear I credit the testimony of Dr.
Malamut that Michael is a totally incapacitated person as that
term is defined. That does not mean, however, that there can
only be a plenary guardianship. That would be inconsistent with
the less restrictive alternative which is always favored.
****
… I intend to appoint a limited guardian of Michael’s
person[.]
N.T., 10/8/2015, at 58–62, 66–69.
Here, DRN makes a two-fold argument: (1) The evidence does not
clearly and convincingly demonstrate that Mr. Sabatino is incapacitated, and
(2) the evidence does not clearly and convincingly demonstrate that Mr.
Sabatino needs a limited guardian of the person. DRN maintains that Mr.
Sabatino, in his testimony, “reflected an ability to receive and evaluate
information and use it effectively to make and communicate decisions to
meet his needs.” DRN’s Brief at 48. Furthermore, DRN cites In re Peery,
727 A.2d 539 (Pa. 1999), wherein the Pennsylvania Supreme Court held that
“a person cannot be deemed incapacitated if his impairment is
counterbalanced by friends or family or other support.” Id. at 541. DRN
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maintains that Mr. Sabatino “has an exceptional and reliable support system
in place negating the need for guardianship[.]” DRN’s Brief at 52.
In his opinion, the trial judge discussed DRN’s reliance on Peery and
opined that “the guardianship was necessary and appropriate”, explaining:
Instantly, DRN insists that despite Mr. Sabatino’s acknowledged
incapacity, the support systems now in place are a viable less
restrictive alternative. It is wrong. As explained by Dr. Malamut,
no support system can account for all of the vulnerabilities of Mr.
Sabatino. He is vulnerable to designing persons and, by
extension, to members of his team who might be advancing a
separate agenda. The limited guardianship imposed by this Court
was carefully crafted and provides Mr. Sabatino protection by
declaring him incapable of entering contracts and providing his
limited guardian with authority to make appropriate medical
decisions on his behalf. Just as important, given the antipathy
between the various team members and Mr. Sabatino’s family,
his stated desire to visit with his mother and other family is
presently being frustrated and the limited guardian can provide
oversight to ensure that this does not continue. To be sure, a
limited guardianship of the person only is the least restrictive
alternative available to ensure that Mr. Sabatino’s needs are
met.
Orphans’ Court Opinion, 2/4/2016, at 21.
Based on our review of the record, we conclude, without hesitation,
that the orphans’ court did not err in adjudicating Mr. Sabatino a totally
incapacitated person and appointing a limited guardian of the person of Mr.
Sabatino with authority over social services, contracts, health care and
family relationships. See Final Decree, 11/25/2015.
In this case, the orphans’ court had the opportunity to hear and
consider the testimony of petitioner, Mr. Sabatino’s mother; Mr. Sabatino,
himself; the various representatives of the support services provided to Mr.
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Sabatino; and Dr. Malamut. Here, the orphans’ court credited Dr.
Malamut’s testimony as to Mr. Sabatino’s capacity and carefully crafted the
limited guardianship of the person of Mr. Sabatino in four areas. The record
evidence supports the decision of the orphans’ court judge and, therefore,
we will not substitute our judgment for that of the lower court absent a clear
abuse of discretion. See In re Hyman, supra, 811 A.2d at 608.
Accordingly, we reject DRN’s third claim and affirm the orphans’ court’s final
decree.21
Lastly, DRN contends the orphans’ court erred in obligating DRN to pay
for Dr. Malamut, the independent evaluator, to appear and testify at the
hearing.
We review a trial court’s allocation of expert fees for an abuse of
discretion. See Pavex, Inc. v. York Fed. Sav. & Loan Ass'n, 716 A.2d
640, 647 (Pa. Super. 1998).
Pursuant to Section 5511(c) of the PEF Code, the orphans’ court may
order an independent evaluation paid for by the county if the alleged
incapacitated person is unable to pay the cost. 20 Pa.C.S. 5511(c)-(d).
Furthermore, Section 5518.1 provides that “[t]estimony as to the capacity of
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21
It bears mention that a final decree may always be reviewed “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.” 20 Pa.C.S. § 5512.2.
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the alleged incapacitated person shall be subject to cross-examination by
counsel for the alleged incapacitated person.” 20 Pa.C.S. § 5518.1.
As already mentioned, the parties agreed that the orphans’ court
judge would appoint Dr. Malamut as independent evaluator. The orphans’
court ordered Dr. Malamut to conduct a neuropsychological evaluation of Mr.
Sabatino and ordered the county to compensate Dr. Malamut for her report.
See Orders, 3/10/2015, 5/27/2015.
The orphans’ court discussed Dr. Malamut’s report and testimony with
counsel at a court conference on June 10, 2014, which the court recounted
on July 28, 2015, the first day of the hearing:
I appointed Dr. Malamut. She issued a comprehensive
evaluation under date of May 17th. I was on vacation. When I
came back on May the 26th, I immediately e-mailed it to counsel,
and we had a conference again on June 10th of 2015.
I asked if everybody had a chance to digest the report,
and they had. Ms. Zabowski and Mr. Bradley indicated they
would stipulate to the admission of the report without the need
for Dr. Malamut’s presence. Ms. Darr indicated she would
stipulate to its admission, but she wanted to examine Dr.
Malamut as to her conclusions.
I made it clear to her that under those circumstances if
she wished to call Dr. Malamut, she could, but she would be her
witness, and it would be at the expense of DRN if they wanted to
call her.
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N.T., 7/28/2015, at 30-31.22 As the orphans’ court notes in its opinion,
“DRN arranged for Dr. Malamut to sit through the testimony of every witness
over two full days of hearing before she was called to the stand on the
second day.” Orphans’ Court Opinion, 2/4/2015, at 22.
In support of its decision, the orphans’ court provided the following
rationale:
Because the County had already paid approximately $5,000 for
the report, and because counsel for petitioner and Mr. Sabatino
saw no need to cross-examine Dr. Malamut, the Court advised
Ms. Darr that it would be free to call Dr. Malamut as DRN’s
witness, however, DRN would have to bear the cost for that
appearance. … DRN was not deprived of the right to cross-
examine Dr. Malamut; it was simply required to bear the costs
for calling an expert witness. That ruling was neither
unreasonable nor unfair.
Orphans’ Court Opinion, 2/4/2016, at 22. We disagree with the orphans’
court, and conclude that the court abused its discretion to the extent it
forced DRN to accept the report without the opportunity to cross-examine
Dr. Malamut unless DRN paid her fee to testify at the hearing.
In arriving at our determination, we have considered that the
guardianship petition was contested, that Mr. Sabatino had the right to
cross-examine Dr. Malamut, and that Ms. Darr was permitted to participate
fully in the proceeding to advocate Mr. Sabatino’s position against the
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22
DRN challenged the orphans’ court’s ruling in a letter to the court, dated
July 10, 2015. See Response in Opposition to Petitioner’s Motion to
Disqualify Kelly Darr, Esquire, and DRN, 7/14/2015, Exhibit D.
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petition. The cross-examination of Dr. Malamut by Ms. Darr was clearly
conducted to advance Mr. Sabatino’s position. Therefore, we agree with
DRN that “the [o]rphans’ [c]ourt’s order requiring DRN to pay for Dr.
Malamut to appear and testify, rather than the county, effectively required
Mr. Sabatino’s counsel to bear the costs.” See DRN’s Brief at 63. We
further note the argument of DRN in its brief that “after Ms. Darr subjected
Dr. Malamut to cross-examination, Ms. Zabowski argued and the [o]rphans’
court concluded that Mr. Sabatino did not need a plenary guardian of the
person (only a limited guardian) and did not need a guardian of the estate at
all.” Id. at 63–64.
We conclude that the County should bear the cost of Dr. Malamut’s fee
for the time she testified in court. Nonetheless, it is unclear to this Court as
to whether it was necessary for DRN to arrange for Dr. Malamut to be
present for the two days of the hearing. Therefore, we remand to the
orphans’ court for a hearing to determine whether there were less expensive
alternatives for Dr. Malamut to obtain the information from the witnesses
and how critical the witnesses’ testimony was to Dr. Malamut’s cross-
examination. Consequently, we reverse the orphans’ court’s order that
required DRN to pay the court appearance fee of Dr. Malamut, and remand
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for a hearing on whether DRN should compensate Dr. Malamut for her court
appearance apart from her examination.23
Final Decree affirmed. Orders of January 8, 2015 and July 29, 2015,
appointing Ms. Zabowski as Mr. Sabatino’s counsel to replace Ms. Darr are
affirmed. Order of September 9, 2015, denying DRN’s motion to disqualify
Diane Zabowski, Esquire, as counsel for Mr. Sabatino, is affirmed. Order of
July 28, 2015, directing DRN to pay Dr. Malamut’s court fees is reversed and
remanded for a hearing regarding allocation of Dr. Malamut’s court
appearance fee. Jurisdiction relinquished.
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23
It bears mention that The Guardianship Monitoring Committee of the Elder
Law Task Force, chaired by this author, made Committee Findings, which
included the following finding:
1. A deposition form completed by the evaluator that contains
the evaluator’s assessment of the capacity of the alleged
incapacitated person (“AIP”) may be submitted to the court in
the place of sworn testimony. Accepting written testimony is
a cost-saving measure that relieves the evaluator of the
burden of testifying in person and is especially applicable in
uncontested cases.
Report and Recommendations of the Elder Law Task Force, 11/2014,
Guardianship Monitoring Committee Findings and Recommendations, § I.B.1.
at 113.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2016
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