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2017 PA Super 409
IN RE: VICTORIA A. STEELE, ALLEGED IN THE SUPERIOR COURT OF
INCAPACITATED PERSON PENNSYLVANIA
APPEAL OF: VICTORIA A. STEELE
No. 268 WDA 2017
Appeal from the Order Entered January 10, 2017
In the Court of Common Pleas of Warren County
Orphans’ Court at No(s): O.C. 48 of 2016
BEFORE: BOWES, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
OPINION BY SOLANO, J.: FILED DECEMBER 27, 2017
Appellant Victoria A. Steele appeals from the order entered
January 10, 2017, by the Orphans’ Court Division of the Court of Common
Pleas of Warren County, which resolved the petition for appointment of a
permanent guardian for Steel that was filed by Warren General Hospital
(“Hospital”). Steele challenges the orphans’ court’s denial of her request to
have the issues presented by Hospital’s petition determined before a jury.
We reverse.
On November 1, 2016, Hospital filed a petition for appointment of an
“emergency guardian of the person and estate of Victoria A. Steele.” Pet.
for Appointment of Emergency Guardian, 11/1/16, at 1 (not paginated).
Later that day, a hearing on that emergency petition was scheduled for
November 7, 2016. Order, 11/1/16. According to an affidavit of service
filed on November 7, 2016, Steele was served with the petition for
appointment of an emergency guardian on November 4, 2016.
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The scheduled hearing was held on November 7, 2016, and, in an
order dated November 8, 2016, the orphans’ court “found Steele to be
incapacitated and in need of a guardian of the estate and of the person and
appointed HelpMates, Inc. to that position. The emergency order was
effective for only thirty (30) days under [20] Pa. C.S.[A.] Section 5513.”
Orphans’ Ct. Op. at 1 (not paginated); see also Order, 11/8/16. The order
would expire on December 7, 2016.
On November 16, 2016, Hospital filed a petition for appointment of a
permanent guardian for Steele. The petition claimed that permanent
guardianship was required because Steele, among other things, was unable
to make informed decisions regarding her medical care and finances.
Hospital’s Pet. for Appointment of Guardian of Person and Estate of Steele,
11/16/16, at ¶ 7. Later that same day, a hearing on this petition was
scheduled for November 29, 2016. Order, 11/16/16. According to a
certificate of service filed on November 23, 2016, Steele was served with the
petition for appointment of a permanent guardian on November 21, 2016.
Certificate of Serv., 11/23/16.
On November 29, 2016, Hospital filed a new petition for appointment
of an emergency guardian, and, later that same day, the orphans’ court
issued an order changing the subject of the hearing scheduled for that day
from Hospital’s petition for a permanent guardian to the re-appointment of
an emergency guardian. At the conclusion of the November 29 hearing, the
orphans’ court again appointed HelpMates, Inc., as Steele’s emergency
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guardian. The court rescheduled the hearing on Hospital’s petition for
appointment of a permanent guardian for December 21, 2016.
On November 30, 2016, Hospital filed an amended petition for
appointment of a permanent guardian. This petition was served on Steele
that same day, according to a certificate of service filed on December 5,
2016.
On December 14, 2016, Steele filed a Request for a Hearing Before a
Jury and an Independent Evaluation Pursuant to 20 Pa.C.S. § 5511. 1
Steele’s petition acknowledged that a hearing was scheduled for
December 21, 2016 and requested a jury trial. Steele’s Request, 12/14/16.
Steele requested an independent medical evaluation because she believed
that (1) her medication “left her in a state of lethargy, numbed mental
awareness, sleepiness, and has caused problems with her mobility,” and (2)
her doctors had refused to recognize that she could act without a guardian.
Id.
On December 16, 2016, the orphans’ court denied Steele’s request for
a hearing before a jury, “notice not having been submitted to the Court prior
to ten (10) days before the scheduled hearing on December 21, 2016 in
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1 Section 5511(a) of the Fiduciaries Code states, in pertinent part: “The
hearing may be closed to the public and without a jury unless the alleged
incapacitated person or his counsel objects. The hearing shall be closed and
with or without a jury if the person alleged to be incapacitated or his counsel
so requests.” 20 Pa. C.S. § 5511(a).
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accordance with 20 Pa.C.S. 777.”2 Order, 12/16/15 (dated December 15,
2015).
On December 21, 2016, the hearing on the petition for appointment of
a permanent guardian was continued to January 9, 2017. N.T., 12/21/16, at
30. On December 28, 2016, Steele again requested a hearing before a jury.
On January 5, 2017, the orphans’ court again denied this request. Order,
1/5/17 (dated 1/3/17).
On January 6, 2017, Steele filed a motion for reconsideration alleging
that a “Petition for Appointment of Guardian of Person and Estate was filed
on December 21, 2016 and the Court personally served Ms. Steele said . . .
Petition.” Steele’s Mot. for Reconsideration, 1/6/17, at ¶ 9. On January 9,
2017, Hospital filed a response in opposition to Steele’s request for a hearing
before a jury. In an order dated January 9, 2017, and docketed on January
10, 2017, the orphans’ court granted reconsideration: “it is hereby Ordered
and Decreed that said request is GRANTED, Ms. Steele’s right to a trial by
jury shall be reinstated.” Order, 1/10/17.
Meanwhile, also on January 9, 2017, a non-jury hearing was held on
the petition for appointment of a permanent guardian, and the orphans’
court declared Steele to be incapacitated and appointed a permanent
guardian of her person and estate. N.T., 1/9/17, at 177. On January 10,
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2 We quote Section 777 later in this opinion, but in pertinent part it states
that a request for a jury trial shall be made “at least ten days prior to the
initial hearing before the orphans’ court division” and “is waived if such
demand is not so made.” 20 Pa.C.S. § 777(d).
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2017, the orphans’ court entered a written order finding that Steele “is in
need of a permanent guardian,” that “a failure to make such an appointment
will result in irreparable harm to her person and estate,” and appointing
HelpMates, Inc., as permanent guardian of her person and estate. Order,
1/10/17.
On January 25, 2017, the orphans’ court issued the following sua
sponte order:
AND NOW this 24th day of January, 2017, the Court has
examined the complete record of the above matter and
determined that this Court’s Order of January 9, 2017 [docketed
on January 10, 2017] was in error. Said Order was based upon
an allegation in the Motion For Reconsideration that the Petition
For Appointment of Guardian of Person and Estate before the
Court was filed on December 21, 2016. A review of the record
reveals that there was no new Petition filed in December. The
Petition that is now before the Court was filed on November 30,
2016. The first hearing on the Petition now before the Court was
scheduled for December 21, 2016. The Request For a Hearing
Before a Jury was filed on December 14, 2016, less than ten
days prior to the “initial hearing” scheduled on the Petition. No
new Petition was filed on December 21, 2016 but only an Order
and Citation scheduling a second hearing date of January 9,
2017. The statute, 20 Pa.C.S.A. § 777(d) requires notice ten
days prior to the “initial hearing”.
THEREFORE, this Court’s Order of January 9, 2017 is
VACATED; and its Order of December 15, 2016 is REINSTATED.
Order, 1/25/17 (dated 1/24/17). The court’s order did not disturb its prior
January 5, 2017 order denying Steele’s prior request for a hearing before a
jury.
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On February 7, 2017, Steele filed an appeal with this Court “from the
Orders entered in this matter on December 1[6], 2016, January [5], 2017,
January 10, 2017, and January 2[5], 2017.” Notice of Appeal, 2/7/17.
On March 30, 2017, in its opinion pursuant to Pa.R.A.P. 1925(a), the
orphans’ court stated: “The appeal of the orders of December 1[6], 2016
and January [5], 2017 was not timely filed within thirty (30) days as
required by Pa.R.A.P. 341 and were interlocutory and did not fall under the
exceptions of Pa.R.A.P. 311 et. seq.” Orphans’ Ct. Op. at 1.
Steele now presents the following issue for our review:
Did the [orphans’] court err in denying Ms. Steele, an alleged
incapacitated person, the right to have a jury determine the
issue of capacity, where Ms. Steele filed a written Request for a
Hearing Before a Jury twelve days before the hearing on the
Petition for Appointment of Guardian of Person and Estate?
Steele’s Brief at 9.
Timeliness of Appeal
Before addressing the merits of Steele’s claim, we must determine
whether this matter is properly before us. Pennsylvania law makes clear
that:
[A]n appeal may be taken from: (1) a final order or an
order certified as a final order (Pa.R.A.P. 341); (2) an
interlocutory order as of right (Pa.R.A.P. 311); (3) an
interlocutory order by permission (Pa.R.A.P. 312, 1311, 42
Pa.C.S.A. § 702(b)); or (4) a collateral order (Pa.R.A.P.
313).
A final order is one that disposes of all the parties and all the
claims . . . or is entered as a final order pursuant to the trial
court’s determination. [T]he appealability of an order goes
directly to the jurisdiction of the Court asked to review the order.
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Veloric v. Doe, 123 A.3d 781, 784 (Pa. Super. 2015) (quoted citation and
quotation marks omitted).
The sole claim in this action – whether a guardian should be appointed
for Steele’s person and estate – was not decided until January 10, 2017.
This order addressed all outstanding claims for all parties. See Pa.R.A.P.
341(a), 342(a)(5). Steele filed her notice of appeal on February 7, 2017,
and thus it is timely. The orphans’ court’s orders of December 16, 2016,
and January 5 2017, which both denied Steele’s request for a jury hearing,
did not resolve Hospital’s claims. We acknowledge that the court sua sponte
filed a January 25, 2017 order reversing its position that Steele was entitled
to a jury. But the court never vacated or reversed its January 5, 2017 order
denying Steele’s request for a jury. Hence, Steele may still properly appeal
that ruling, as it preceded the court’s January 10th final order. A party
needs to file only a single notice of appeal to secure review of prior non-final
orders that are made final by the entry of a final order. See K.H. v. J.R.,
825 A.2d 863, 870-71 (Pa. 2003) (following trial); Betz v. Pneumo Abex
LLC, 44 A.3d 27, 54 (Pa. 2012) (summary judgment). Accordingly, we
consider the merits of Steele’s appeal.
Timeliness of Request for a Jury Trial
Steele claims the trial court misinterpreted Section 777 of the
Fiduciaries Code when it determined that Steele had waived her right to a
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hearing before a jury. Steele’s Brief at 15. Section 777, 20 Pa.C.S. § 777,
states, in relevant part:
(b) Determination of incapacity.—Any person against whom
proceedings have been instituted to establish his incapacity shall
be entitled to a trial of such issue by a jury. The verdict of the
jury shall have the same effect as the verdict of a jury in a case
at law.
...
(d) Waiver of right.—A person desiring a trial by jury shall
make demand therefor in writing at least ten days prior to the
initial hearing before the orphans’ court division or; if the initial
hearing is dispensed with as provided in section 778(b) (relating
to combined hearings and trials) then at least ten days prior to
the trial. The right to trial by jury is waived if such demand is
not so made or, after having been made, the person claiming the
right fails to appear.
20 Pa.C.S. § 777(b), (d). Steele argues:
The [orphans’] court erred in denying [Steele], an alleged
incapacitated person, the right to have a jury determine the
issue of capacity, where [Steele] filed a written Request for a
Hearing Before a Jury twelve (12) days before the hearing on the
Petition for Appointment of Guardian of Person and Estate took
place, where 20 Pa.C.S. § 777(d) requires that the request be
made at least ten (10) days prior to the hearing.
Steele’s Brief at 14.3
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3 Steele also asserts:
In the instant case, if this Honorable Court determines that the
trial court correctly interpreted the statute when it determined
that the hearing for the appointment of a permanent guardian
that was held on January 9, 2017 was not the “initial” hearing to
which the statute refers, then Ms. Steele would have had to have
made her written request ten days prior to the “initial” hearing
to appoint an emergency guardian which was held on
November 7, 2016. Under this theory, Ms. Steele would have
(Footnote Continued Next Page)
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Hospital informs us that the only relevant decision it has been able to
locate on this issue is Estate of Gregory, No. 1265 IC of 2005, 2006 WL
3041968 (C.P. Phila. 2006). Hospital’s Brief at 9.4 Hospital continues:
In Gregory, the Philadelphia Corporation for Aging filed its
Petition for a determination of incapacity and guardianship on
August 9, 2005. Id. at [*1]. . . . On September 12, 2005,
eight[] days before the scheduled initial hearing, counsel filed an
Answer to the Petition denying the allegations of dementia and in
the WHEREFORE clause asked for a jury trial.
The hearing was held on September 20, 2005 and substantial
uncontested evidence with respect to incapacity was presented
by expert testimony. Id. . . .
The Gregory Court held that the request for a jury trial was
untimely under 20 Pa. C.S.A. § 777 because the initial Hearing
was scheduled for September 20, 2005, and the request for the
jury trial was submitted on September 12, 2005, eight days
before the initial hearing. Id. at [*11].
In this case, the initial hearing on the matter of incompetency
and the appointment of a permanent guardian for the person
and estate of [Appellant] was scheduled before the [orphans’
c]ourt to take place on November 29, 2016. Appellant’s written
(Footnote Continued) _______________________
had to have filed her written request by October 28, 2016, which
would have been impossible as the petition for the appointment
of an emergency guardian was not filed until November 1, 2016.
Steele’s Brief at 17-18. We agree with Steele that this result would appear
untenable; however, neither Hospital nor the orphans’ court is contending
that the request for a jury trial would have had to have been filed ten days
before the first hearing on the petition for appointment of an emergency
guardian. Instead, both Hospital and the orphans’ court maintain that the
request for a jury trial had to be filed before the initial hearing on the
separate petition for appointment of a permanent guardian. Thus, Steele’s
argument lacks merit.
4 We note that we are not bound by decisions of lower courts in
Pennsylvania, but we may find them persuasive. Newell v. Montana
West, Inc., 154 A.3d 819, 823 (Pa. Super. 2017).
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request for a trial by jury was not filed with the [orphans’ c]ourt
until December 14, 2016. The [orphans’] court correctly found
that the Appellant’s request for a jury trial was not timely filed
because it was not received at least ten days prior to the initial
Hearing scheduled for November 29, 2016.
Id. at 9-10. The orphans’ court also asserted that Steele’s “request for a
jury would have had to be filed at least ten days prior to the scheduled
November [29], 2016 hearing date, the ‘initial hearing’.” Orphans’ Ct. Op.
at 3. We disagree.
We have held:
“In evaluating a trial court’s application of a statute, our
standard of review is plenary and is limited to determining
whether the trial court committed an error of law.”
Commonwealth v. Stevenson, 850 A.2d 1268, 1271 (Pa.
Super. 2004) (en banc) (citation omitted). In making this
determination, we are guided by the Statutory Construction Act,
Commonwealth v. Merolla, 909 A.2d 337, 345 (Pa. Super.
2006), which dictates:
§ 1921. Legislative intent controls
(a) The object of all interpretation and construction
of statutes is to ascertain and effectuate the
intention of the General Assembly. Every statute
shall be construed, if possible, to give effect to all its
provisions.
(b) When the words of a statute are clear and free
from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.
1 Pa.C.S. § 1921. “As a general rule, the best indication of
legislative intent is the plain language of a statute.”
Commonwealth v. Bradley, 575 Pa. 141, 834 A.2d 1127, 1132
(2003).
Commonwealth v. McFadden, 156 A.3d 299, 305 (Pa. Super.), appeal
denied, 170 A.3d 993 (Pa. 2017); see also Sch. Dist. of Phila. v. Dep't
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of Educ., 92 A.3d 746, 751 (Pa. 2014) (“This matter hinges on statutory
interpretation . . . , which, as a question of law, is subject to a de novo
standard of review and a plenary scope of review”).
In In re Estate of Miller, 18 A.3d 1163, 1171 (Pa. Super. 2011) (en
banc), the trial court, on October 29, 2008, scheduled an initial hearing for
January 16, 2009. Id. at 1170-71. Four days after the hearing, on
January 20, 2009, the appellant made a written request for a jury trial. Id.
The trial court denied the request, and this Court affirmed, concluding that
appellant’s request was untimely as it was not made ten days prior to
January 16, 2009. Id. at 1171. We stated: “[F]ailure to comply with the
requirements of Section 777(d) constitute[s] a waiver of [the] right to have
the Orphans’ Court consider whether to permit a jury trial[.]” Id.
Neither Miller nor the trial court decision referenced by Hospital,
Gregory, provide guidance on how to apply Section 777 when a hearing has
been scheduled and later continued. The statute says that a request for a
jury must be made at least ten days before “the initial hearing before the
orphans’ court division.” The language thus suggests an intent to address a
situation where multiple hearings are held to resolve an incapacity petition.
Here, however, there was just one hearing, which was continued until
January 9, 2017. On December 28, 2016, upon learning of the continuance,
Steele renewed her December 14, 2016 request for a jury. Both jury
requests were made more than ten days before the January 9, 2017
hearing.
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A note to Section 777 states:
Subsection (d): This subsection is rewritten to make it clear
that the party desiring jury trial must make demand in writing in
all cases and do so at an early stage; delays of the hearing by
demanding a jury trial at the last moment should thus be
avoided.
20 Pa.C.S. § 777 note. We do not agree that Steele’s request was made “at
the last moment” here. We note that the hearing initially was scheduled to
be held on November 29, 2016, less than ten days after November 21,
2016, the date Steele was served with the petition for appointment of a
permanent guardian. It was impossible for Steele to request a jury trial ten
days prior to that hearing date. On December 14, 2016, after the hearing
was rescheduled for December 21, 2016, Steele requested a jury. Her
request was made too late to apply to the hearing on December 21, but
when the hearing was rescheduled for January 9, Steele made sure she
presented a jury request within the time allowed.
Commitment proceedings threaten “significant deprivations of liberty.”
In re S.M., ___ A.3d ___, 2017 WL 6395865, at *2 (Pa. Super., Dec. 15,
2017); see also id. at *7, *10. The statutory guarantee of a jury trial in
Section 777(b) provides the allegedly incapacitated person with an important
protection against that deprivation. We should not lightly deem this
protection waived. Steele requested a hearing before a jury more than ten
days before the “initial hearing” on Hospital’s petition was held. She
therefore complied with the plain language of the statute. Accordingly, we
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hold that the trial court erred in denying Steele’s right to a jury, and we
reverse.
Order reversed. Case remanded for further proceedings in accordance
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/27/2017
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