J-A24012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ESTATE OF HELEN WEATHERLY,                 :   IN THE SUPERIOR COURT OF
    ALLEGED INCAPACITATED PERSON               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: DONALD HIGHTOWER                :
    AS                                         :
                                               :
                       Petitioner              :
                                               :   No. 1447 EDA 2018

                      Appeal from the Decree April 13, 2018
     In the Court of Common Pleas of Philadelphia County Orphans' Court at
                               No(s): 513 AI 2016


BEFORE:      BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                         FILED JANUARY 07, 2020

        Donald Hightower (Appellant) appeals pro se from the decree, dated

April 13, 2018, issued by the Orphans’ Court Division of the Court of Common

Pleas of Philadelphia County that found Helen Weatherly to be an incapacitated

person and appointed Bruce Alwine to be the guardian of her person and her

estate.1 After review, we dismiss this appeal as moot.

        The orphans’ court issued an opinion that set forth the following facts

and procedural history of the matter.

               Donald Hightower (“Appellant”) filed a Petition for
        Adjudication of Incapacity and the Appointment of a Plenary
        Guardian of the Person and Estate on May 11, 2017.1 The Petition
        listed Helen Weatherly’s next of kin as her two sons, Appellant and
        Michael Hightower. The Petition stated that Helen Weatherly was
        a ninety-three year old female suffering from dementia.2 The
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   No appellee’s brief has been filed.
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     Petition alleged that Ms. Weatherly’s conditions caused functional
     limitation that affected her ability to receive and evaluate
     information effectively and to make and communicate decisions.
     Appellant nominated himself as the proposed guardian of the
     person and estate.

           1 Appellant originally filed an emergency petition for
           guardianship on April 29, 2016. The emergency
           petition was withdrawn. Appellant filed a Petition for
           Plenary Guardianship on May 6, 2016. The hearing
           was continued three times for Appellant[’]s failure to
           obtain medical evidence. On November 9, 2016, this
           court dismissed the petition without prejudice to refile
           after Appellant failed to appear in court. The refile
           resulted in the instant petition and appeal. Appellant
           also filed an amended petition on June 16, 2017,
           where he listed five pages worth of allegations against
           Care Pavilion and Michael Hightower[,] which included
           but was not limited to collusion against Appellant and
           Ms. Weatherly.

           2   Ms. Weatherly is now 94 years old.

           A hearing was scheduled for July 10, 2017.... The hearing
     was continued five times for Appellant’s failure to obtain medical
     testimony and for failure to make service on Ms. Weatherly. On
     November 15, 2017, Yvette Rogers, Esquire[,] was appointed to
     represent the rights, interests and person of Helen Weatherly.3

           3 The Honorable Shanese I. Johnson was originally Ms.
           Weatherly’s court[-]appointed counsel before she was
           elected as a Judge in Philadelphia County.

            On April 10, 2018, the [c]ourt held a hearing on the Petition
     for Adjudication of Incapacity and the Appointment of a Plenary
     Guardian of the Person and Estate. Appellant submitted a written
     doctor’s deposition of Dr. Kenneth Rosenstein pursuant to 20
     P[a].C.[S.] § 5518.4 Dr. Rosenstein diagnosed Ms. Weatherly with
     dementia, moderate to severe, probably mixed vascular and
     Alzheimer’s type. She scored an 11 out of 30 on the mini mental
     status exam and a 3 out of 30 on the SLUMS. In the doctor’s
     opinion[,] her ability to receive and evaluate information
     effectively and communicate decisions was significantly impaired.
     He also indicated she was totally unable to manage her financial

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J-A24012-19


     resources and also totally unable to meet            the   essential
     requirements for her physical health and safety.5

           4In lieu of [a] recitation of all of Dr. Rosenstein’s
           qualification and findings, the [c]ourt incorporates the
           written deposition marked as P-1[.]

           5All opinions are based upon a reasonable degree of
           medical certainty.

            Appellant testified that he seeks guardianship of his
     terminally ill mother. Appellant did not testify about his mother’s
     daily needs and activities, medical needs, medications, finances
     or why he should be appointed guardian. Appellant called no other
     witnesses. [Attorney] Rogers called Michael Hightower in her
     case-in-chief. Michael Hightower objected to Appellant[’s] serving
     as guardian. However, he did not oppose the guardianship and
     was agreeable to a neutral guardian. Michael Hightower stated
     that he has been making decisions on behalf of his mother since
     she has been at Care Pavilion and that her social security income
     is directed to Care Pavilion as payee. [Michael] Hightower testified
     that Ms. Weatherly owns a house that is in reverse mortgage …
     and that Appellant lives in the house.           Appellant’s cross-
     examination and re-cross of Michael Hightower was tantamount
     to an argument about their family history and relations.
     [Attorney] Rogers made a statement to the [c]ourt in closing[,]
     requesting a neutral guardian be appointed since the two brothers
     cannot work together and that because of [Ms. Weatherly’s]
     physical condition and reverse mortgage she is in need of a
     guardian of both her person and estate.

           On April 13, 2018, this [c]ourt issued a final Decree
     adjudicating Helen Weatherly a totally incapacitated person and
     appointing Bruce Alwine as the guardian of the person and estate
     of Helen Weatherly, an incapacitated person.

           On May 13, 2018, Appellant filed a timely Notice of Appeal.

Orphans’ Court Opinion, 5/18/18, at 1-3.

     On appeal, Appellant raises the following issues for our review, which

we reproduce verbatim:



                                    -3-
J-A24012-19


      1) Whether the Trial Court abused its discretion when it blatantly
      disregarded Pennsylvania Rules of Court; in Pertinent Rule 212.3
      as it pertains to Pre-Trial conference and scheduling, by holding a
      surprise trial and using a surprise witness.

      2) Whether the trial court abused its discretion when it rendered
      a final order not based on any “foundation of reason” and appears
      to be manifestly unreasonable, arbitrarily capricious, motivated by
      partiality, prejudice, bias or ill will. (Given the trial court’s blatant
      and egregious behavior, one would say “All of the Above”)

      3) Whether the trial court abused its discretion when it held a
      surprise trial featuring a surprise witness, essentially denying pro
      se petitioner “procedural due process”, denying pro se petitioner
      opportunity to do an in-court presentation.

      4) Whether the trial court abused its discretion when it blatantly
      disregarded 20 C.S.A. 5604a(c)(2) which clearly states “[I]n
      absence of proof of good cause or disqualification based on
      competent evidence, at the Guardianship hearing there was no
      need to appoint independent party as permanent guardian.”

Appellant’s brief at 6.

      We note that Appellant’s brief contains a partial statement of a fifth issue

on page 6. We are unable to comprehend the point of this incomplete issue.

Moreover, Appellant’s brief contains no argument related to a fifth issue.

Thus, we are compelled to conclude that a waiver is appropriate under the

circumstances.    See Pa.R.A.P. 2116(a).        However, because the panel at

argument was apprised by Appellant of the death of Ms. Weatherly on July 17,

2018, we conclude that this matter is moot.          Accordingly, we dismiss the

appeal as moot.

      Appeal dismissed as moot.




                                       -4-
J-A24012-19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/20




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