J-S70037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ESTATE OF EDWARD STAHL                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: EDWARD STAHL

                                                     No. 1764 EDA 2015


                      Appeal from the Decree May 5, 2015
                 In the Court of Common Pleas of Bucks County
                      Orphans' Court at No(s): 2014-0707


BEFORE: DONOHUE, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED DECEMBER 02, 2015

       Edward Stahl appeals from the decree of the Court of Common Pleas

of Bucks County, Orphans’ Court Division, declaring him to be a totally

incapacitated person1 and appointing Rosalin Karlin, Esquire, as plenary

guardian of his person and estate. Upon review, we remand to the Orphans’

Court for the preparation of a Pa.R.A.P. 1925(a) opinion.

       On October 15, 2014, the Bucks County Area Agency on Aging

(“Agency”) filed a petition for adjudication of incapacity and the appointment

of a plenary guardian of the person and estate of Edward Stahl. During the
____________________________________________


*
  Retired Senior Judge assigned to the Superior Court.
1
  This Court has held that an adjudication of incapacity does not deprive an
individual of standing to appeal an order affecting his rights and/or property.
See Estate of Rosengarten, 871 A.2d 1249, 1256 (Pa. Super. 2005)
(holding incapacitated person has standing to appeal order allowing sale of
residence).
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pendency of the incapacity proceedings, Mr. Stahl was represented by Legal

Aid of Southeastern PA. After the incapacity hearing at which the Orphans’

Court stated its intention to appoint a guardian, but prior to the entry of a

Final Decree, Mr. Stahl sent a letter, addressed to the “Superior Court of

Bucks,” stating his wish to “appeal the decision made in regards to being

declared incapacitated.”    This document was stamped “received” by the

Bucks County Orphans’ Court on May 5, the same date the Orphans’ Court

entered its Final Decree in which Mr. Stahl was adjudicated to be an

incapacitated person and Attorney Karlin was appointed guardian. By cover

of letter dated May 8, 2015, the Office of the Clerk of the Orphans’ Court

returned Mr. Stahl’s filing to him because he failed to submit the appropriate

filing fee. On June 1, 2015, the Orphans’ Court accepted Mr. Stahl’s letter

for filing, treated it as a notice of appeal, and forwarded a copy to the

Superior Court Office of Prothonotary.

      On June 16, 2015, the court issued an opinion in which it noted that it

had “opted not to issue an order pursuant to Pa.R.A.P. 1925(b) directing

[Appellant] to file a statement of matters complained of on appeal, upon

finding that his letter did not raise issues which required clarification.” Trial

Court Opinion, 6/16/15, at 2.        In the opinion, the court conducted a

sufficiency analysis and concluded that the Agency had presented clear and

convincing evidence that Mr. Stahl was incapacitated and in need of a

plenary guardian.




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      Subsequenty, Mr. Stahl retained appellate counsel, who filed an

appellate brief raising two issues:

      1. Did the Orphans’ Court render a decision against the weight
      of the evidence when it concluded Appellant was totally
      incapacitated in the face of equivocal testimony concerning [the]
      alleged incapacitated person’s capacity from a prior doctor, and
      stronger testimony from the court-appointed doctor who
      examined Appellant most recently and in more detail and who
      concluded that Appellant was experiencing only “mild cognitive
      impairment,” that he was alert and capable of understanding his
      finances and cooperative in taking medication?

      2. Did the Orphans’ Court commit legal error by not applying
      the statutory presumption or preference for partial incapacity
      over total incapacity and by not considering less restrictive
      alternatives to plenary guardianship?

Brief of Appellant, at 4.

      It is well-settled that:

         [a]ppellate review of a weight claim is a review of the [trial
         court’s] exercise of discretion, not of the underlying
         question of whether the verdict is against the weight of the
         evidence. Because the trial judge has had the opportunity
         to hear and see the evidence presented, an appellate court
         will give the gravest consideration to the findings and
         reasons advanced by the trial judge when reviewing a trial
         court’s determination that the verdict is against the weight
         of the evidence. One of the least assailable reasons for
         granting or denying a new trial is the lower court’s
         conviction that the verdict was or was not against the
         weight of the evidence and that a new trial should be
         granted in the interest of justice.

      Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)
      (internal citations omitted). Accordingly, there is a general rule
      barring appellate review of weight claims in the first instance.
      Armbruster v. Horowitz, 572 Pa. 1, 813 A.2d 698, 703-04
      (Pa. 2002). As such, where an appellant fails to raise a weight
      claim before the trial court, thus preventing it from addressing



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      the claim from the vantage point of having presided over the
      trial, the claim is unreviewable on appeal.

In re Estate of Smaling, 80 A.3d 485, 490-91 (Pa. Super. 2013).

      Here, Mr. Stahl’s claim that the adjudication of incapacity was against

the weight of the evidence was not raised before the Orphans’ Court and,

thus, would normally be deemed waived.          However, under the unique

circumstances of this case, we decline to find waiver. Pursuant to section

5511 of the Probate, Estates and Fiduciaries Code, an alleged incapacitated

person possesses “the right to request the appointment of counsel and to

have counsel appointed if the court deems it appropriate[.]” 20 Pa.C.S.A. §

5511(a).    In this case, the Orphans’ Court appointed Legal Aid of

Southeastern PA as counsel for Mr. Stahl, who throughout the course of

these proceedings strenuously objected to the appointment of a guardian

and sought to maintain his independence.       However, it appears that Mr.

Stahl was abandoned by court-appointed counsel at some point subsequent

to the incapacity hearing, even though counsel should have known that Mr.

Stahl would likely wish to appeal the court’s determination. Without benefit

of counsel, Mr. Stahl could not be expected to know he was required to

preserve his weight claim by filing exceptions pursuant to Pa.O.C.R. 7.1.

Moreover, because the trial court did not issue a Rule 1925(b) order, Mr.

Stahl did not have the opportunity to preserve his weight claim by including

it in a Rule 1925(b) statement. As a result of these procedural peculiarities,

the trial court did not have an opportunity to address the Appellant’s weight-



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of-the-evidence claim. Accordingly, we remand for the preparation of a Rule

1925(a) order to allow Appellant’s claims to receive appellate review.

      Case remanded to trial court for preparation of Rule 1925(a) opinion

within 30 days; panel jurisdiction retained.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2015




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