J-A06012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: CHRISTIANA ZEIGER, AN               :   IN THE SUPERIOR COURT OF
    ALLEGED INCAPACITATED PERSON               :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: DIANE ZEIGER,                   :
    DAUGHTER                                   :
                                               :
                                               :
                                               :   No. 1115 MDA 2018

                  Appeal from the Decree Entered June 5, 2018
              In the Court of Common Pleas of Cumberland County
                      Orphans' Court at No(s): 21-17-0094


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                    FILED JUNE 19, 2019

        Diane Zeiger (Daughter), appeals from the decree entered June 5, 2018,

in the Court of Common Pleas of Cumberland County, Orphans’ Court Division,

appointing Keystone Guardianship Services (Keystone) as plenary guardian of

the person and estate of Christiana Zeiger, an incapacitated person. 1

Daughter contends the court: (1) lacked subject matter jurisdiction because

it had not given Christiana Zeiger proper notice of the proceedings; (2) abused

its discretion in appointing Keystone as plenary guardian of the person instead




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   Retired Senior Judge assigned to the Superior Court.

1 The decree at issue is an orphans’ court order appealable as of right pursuant
to Pa.R.A.P. 342(a)(5) (“An order determining the status of fiduciaries,
beneficiaries, or creditors in an estate, trust or guardianship[.]”).
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of Daughter; and (3) abused its discretion in denying Daughter’s discovery

request. See Daughter’s Brief, at 5. Based upon the following, we affirm.

      Christiana Zeiger, who suffers from Alzheimer’s disease, resides in the

Country Meadows Retirement Community (Country Meadows). This matter

arose when Christiana Zeiger’s agent under her power of attorney, Michael

Cherewka, Esquire, petitioned the court to declare her incapacitated and

sought the appointment of a guardian of her person and estate. On February

7, 2017, the court appointed a guardian ad litem (GAL) and issued a citation

upon Christiana Zeiger giving her notice of the scheduled hearing on the

petition. After several unopposed requests for continuance, the court held a

hearing on October 4, 2017.

      Christiana Zeiger was present for the October 4, 2017 hearing, at which

the court found her incapacitated, but did not appoint a guardian. Based upon

the GAL’s representation that Daughter opposed the appointment of a third

party as guardian of her mother’s person and wished to be appointed as the

guardian of her person, the court scheduled a second hearing for October 18,

2017, to hear from any parties interested in being appointed plenary guardian.

      On October 16, 2017, counsel entered his appearance on behalf of

Daughter. The parties agreed to continue the hearing.      On December 29,

2017, Daughter filed a petition to obtain Christiana Zeiger’s medical records,

as well as other unspecified records. The court denied the petition on January

4, 2018.


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     Additional hearings took place on January 11, 2018, and March 5, 2018.

At the January 11, 2018, hearing, Keystone was appointed interim plenary

guardian, and additional testimony was taken on March 5, 2018. On June 5,

2018, the court issued a final decree appointing Keystone as plenary guardian

of the person and estate of Christiana Zeiger.      The court described its

reasoning as follows.

     The question of who should be appointed plenary guardian arose
     out of a dispute among the three surviving children of Christiana
     Zeiger: sons, Tim and Keith, and [Daughter] that necessitated
     court involvement. Both sons, [Mr. Cherewka], and GAL all
     concurred that maintaining housing and nursing care at Country
     Meadows while appointing [Keystone] as plenary guardian of
     Christiana Zeiger is in her best interest.

     Country Meadows and Keystone are proven service providers that
     have demonstrated the ability and capacity to care best for
     [Christiana] Zeiger’s infirmities and other needs. [Daughter],
     however, has not shown an ability or capacity to care fully for her
     mother.     The record indicates, inter alia, that on multiple
     occasions while visiting Country Meadows, [Daughter]:           (1)
     verbally abused and was disrespectful to Country Meadow[s’]
     staff; (2) used profanity to address and berate staff; (3) caused
     public scenes and yelled at others — upsetting her mother and
     disrupting the community; (4) provided invalid doctor orders to
     Country Meadows; (5) removed Christiana Zeiger for up to weeks
     at a time causing temporary loss of insurance coverage for those
     overnight periods; and (6) impeded Country Meadows’ ability to
     provide medical care and services.

     Further concern was raised by the fact that [Daughter] was
     repeatedly warned of her unacceptable conduct by both Country
     Meadows and the GAL, but she chose not to modify her behavior.
     Despite [Daughter’s] willingness to serve as guardian, and
     undeniable love for her mother, [her] demonstrated lack of self-
     control and challenges working constructively with her siblings
     indicate [Daughter] is not the best choice as guardian of the
     person or the estate.


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Trial Court Opinion, 9/28/2018, at 5-6. On July 5, 2018, Daughter filed the

instant, timely appeal.2

       At the outset, we state our standard of review:

       When reviewing a decree entered by the Orphans’ Court, this
       Court must determine whether the record is free from legal error
       and the court’s factual findings are supported by the evidence.
       Because the Orphans’ Court sits as the fact-finder, it determines
       the credibility of the witnesses and, on review, we will not reverse
       its credibility determinations absent an abuse of that discretion.
       However, we are not constrained to give the same deference to
       any resulting legal conclusions. Where the rules of law on which
       the court relied are palpably wrong or clearly inapplicable, we will
       reverse the court’s decree.

Estate of Fuller, 87 A.3d 330, 333 (Pa. Super. 2014) (citation omitted).

       In her first issue, Daughter contends that the orphans’ court lacked

subject matter jurisdiction over Christiana Zeiger due to lack of proper service.

Daughter’s Brief, at 5. Daughter argues that the original service on Christiana

Zeiger was improper and that an additional citation needed to be issued and

served on her each time the court continued the matter. Id. at 23-32. In

support of these arguments, Daughter relies on the Pennsylvania Supreme

Court’s decision in In re Hick’s Estate, 199 A.2d 283, 285 (Pa. 1964). Id.

at 24. However, Daughter’s reliance on Hicks is misplaced and this issue is

meritless.




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2 On July 31, 2018, in response to the orphans’ court’s order, Daughter filed
a timely concise statement of errors complained of on appeal. On September
28, 2018, the court issued an opinion.

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      The orphans’ court has subject matter jurisdiction over guardianship

proceedings pursuant to 20 Pa.C.S.A. § 712(2).      See also 20 Pa.C.S.A. §

5511. In Hicks, our Supreme Court held that the failure to properly serve the

citation on the incapacitated person deprived the court of personal

jurisdiction not subject matter jurisdiction.          Hicks, supra at 285

(citation omitted) (“In the orphans’ court, a citation is the proper process by

which initial personal jurisdiction over the person is obtained.”); see also In

re Katic, 439 A.2d 1235, 1236 (Pa. Super. 1982).            Thus, Daughter’s

contention that the allegedly improper service in this matter deprived the

court of subject matter jurisdiction is mistaken. Moreover, even if we were to

deem Daughter’s claim a challenge to the jurisdiction of the court over

Christiana Zeiger’s person, the claim would fail.

      With respect to the original service of process, the record reflects that

the Deputy Clerk of the Orphans’ Court served the original citation on February

7, 2017.   See Certification of Service Order, 2/07/2017.      Moreover, Neil

Hendershot, Esquire, the attorney for Mr. Cherewka, personally served

Christiana Zeiger with the petition for adjudication of incapacity and the

attached citation on March 10, 2017. See Affidavit of Service, 3/17/2017.

The GAL, Diane Radcliff, testified that she also personally gave Christiana

Zeiger a copy of the citation and explained it to her. N.T. Hearing, 1/11/2018,

at 5. Moreover, the record reflects that Christiana Zeiger was present at the

October 4, 2017 hearing. See id.; see also N.T. Hearing, 10/04/2017, at 21.


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This is all that the statute requires. See 20 Pa.C.S.A. § 5511(a); see also

Fleehr v. Mummert, 857 A.2d 683, 685 (Pa. Super. 2004) (holding court can

obtain personal jurisdiction over party when party appears and takes actions

going to merits of case) (citations omitted), appeal denied, 889 A.2d 89 (Pa.

2005). Daughter’s first claim lacks merit.

     To the extent Daughter claims that the court was required to issue a

new citation and serve it every time it continued the matter and scheduled a

new hearing, she has waived this claim. The only issue Daughter raised in

the orphans’ court was that the original service of process was defective. See

N.T. Hearing, 1/11/2018, at 4-6. Instead, Daughter raised this issue for the

first time in her Rule 1925(b) statement. See Concise Statement of Errors

Complained of on Appeal, 7/31/2018, at unnumbered page 3. An appellant

cannot raise issues for the first time in a Rule 1925(b) statement.

Commonwealth v. Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues

raised for first time in Rule 1925(b) statement are waived).

     In her second issue, Daughter contends the orphans’ court abused its

discretion in naming a third-party entity as guardian of the person and estate

of Christiana Zeiger when she was available to serve as guardian of the

person. Daughter’s Brief, at 32-42. We disagree.

     We have held that:

     [t]he appointment of a guardian lies within the discretion of the
     trial court and will be overturned only upon an abuse of discretion.
     Discretion must be exercised on the foundation of reason. An
     abuse of discretion exists when the trial court has rendered a

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       judgment that is manifestly unreasonable, arbitrary, or capricious,
       has failed to apply the law, or was motivated by partiality,
       prejudice, bias, or ill will.

In re Duran, 769 A.2d 497, 506 (Pa. Super. 2001) (citations and quotation

marks omitted). “A finding by an appellate court that it would have reached

a different result than the trial court does not constitute a finding of an abuse

of discretion. Where the record adequately supports the trial court’s reasons

and factual basis, the court did not abuse its discretion.”           Mader v.

Dusquesne Light Co., 199 A.3d 1258, 1263-1264 (Pa. Super. 2018)

(citations and internal quotation marks omitted).

       At the October 4, 2017 hearing Mr. Cherewka, the agent under

Christiana Zeiger’s power of attorney since December 24, 2015, stated he did

not want to serve as guardian and recommended that the court appoint

Keystone. N.T. Hearing, 10/04/2017, at 13; N.T. Hearing 3/05/2018, at 8.3

The court then stated it was giving due deference to the recommendation of

Mr. Cherewka.

       The testimony at the hearing clearly demonstrated that Daughter loved

her mother and the two had a close relationship.             See N.T. Hearing

10/04/2017, at 14; N.T. Hearing 1/11/2018, at 6-21; N.T. Hearing,


____________________________________________


3 Mr. Cherewka testified that, on December 24, 2015, Christiana Zeiger
revoked the powers of attorney held by her children.    N.T. Hearing,
3/05/2018, at 8.




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3/05/2018, at 27. However, the evidence also showed that, whatever the

rights and wrongs of the situation were,4 Country Meadows was not willing to

allow Christiana Zeiger to remain in their facility if the court appointed

Daughter as her guardian. N.T. 3/05/2018, at 38-39. Daughter devoted the

entirety of her testimony to discussing her close relationship with her mother

and giving her version of the issues with Country Meadows. N.T. Hearing,

1/11/2018, at 21-46. At no point in her testimony did she explain how she

was going to care for her mother if Country Meadows evicted her or where her

mother would live.       See id.     The record supports the trial court’s factual

findings that, due to the friction between Country Meadows and Daughter,

there was ample reason to appoint Keystone as guardian of Christiana Zeiger’s

person. Mader, supra at 1263-1264; Duran, supra at 506; 20 Pa.C.S.A. §

5604(c)(2). We have thoroughly reviewed the briefs and the certified record,

and Daughter has not shown that the orphans’ court abused its discretion in

following the recommendation of Mr. Cherewka, the GAL and both of




____________________________________________


4On appeal, Daughter complains that the evidence presented and relied upon
by the court regarding the problems that Country Meadows had with her was
not competent because it was hearsay. Daughter’s Brief, at 39-42. However,
Daughter does not point to, and we are unable to locate any point at the
hearing where she objected to either the testimony or the admissions of the
exhibits. Thus, she has waived any challenge on this basis. See Pa.R.A.P.
302(a); Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 45-46
(Pa. 2011).


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Christiana Zeiger’s sons, when it appointed Keystone as the sole plenary

guardian of Christiana Zeiger’s person. Daughter’s second claim fails.

      In her final claim, Daughter contends that the orphans’ court erred in

denying her request for Christiana Zeiger’s medical and other unspecified

records. Daughter’s Brief, at 42-48. We disagree.

      Since this issue concerns an evidentiary ruling by the trial court, our

standard of review is as follows:

      Generally, an appellate court’s standard of review of a trial court’s
      evidentiary rulings is whether the trial court abused its discretion;
      however, where the evidentiary ruling turns on a question of law
      our review is plenary.

Buckman v. Verazin, 54 A.3d 956, 960 (Pa. Super. 2012) (citation omitted),

appeal denied, 77 A.3d 1258 (Pa. 2013).

      Patient medical records fall under the Health Insurance Portability and

Accountability Act of 1996 (HIPAA) and a facility or a physician can only

disclose   them   if    served   with   a   court   order.   See   45   C.F.R.   §

164.512(e)(1)(i)(ii).     Our courts have established a balancing test to

determine the propriety of issuing such an order.

      [W]e must engage in the delicate task of weighing competing
      interests. The factors which should be considered in deciding
      whether an intrusion into an individual’s privacy is justified are the
      type of record requested, the information it does or might contain,
      the potential for harm in any subsequent nonconsensual
      disclosure, the injury for disclosure to the relationship in which the
      record was generated, the adequacy of safeguards to prevent
      unauthorized disclosure, the degree of need for access, and
      whether there is an express statutory mandate, articulated public
      policy, or other recognizable public interest militating toward
      access.

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Buckman, supra at 961 (citation omitted).

       Here, the orphans’ court determined that Christiana Zeiger’s medical

records were irrelevant to the proceedings.5 Trial Court Opinion, 9/28/2018,

at 5. We agree that Daughter has not demonstrated any degree of need for

access to the records.

       Daughter has never challenged the orphan’s court’s finding of

incapacity.    See Daughter’s Brief, at 5.         Thus, Daughter did not need the

medical records for that purpose, for which they would, arguably, have been

relevant. Instead, Daughter contends that she needed the records to refute

the allegations made against her by Country Meadows.             Id. at 42, 46-47.

Daughter does not explain why this information would have been included in

Christiana Zeiger’s medical records or why she needed the entirety of the

records. While she baldly claims that “many of the documents” she requested

are not subject to HIPAA, she does not specify which documents she is

referring to and why they are not subject to HIPAA. Daughter’s Brief, at 45.

       Further, we disagree with Daughter’s general complaint that the

orphans’ court’s decision to deny her petition for documents prejudiced her at



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5 The record reflects that the court did direct that Mr. Cherewka turn over a
copy of Christiana Zeiger’s long-term care insurance and other financial
documents to Daughter. N.T. Hearing, 3/05/2018, at 21-22. Daughter does
not claim that she did not receive those documents and we were unable to
determine from her vague argument on this issue what additional non-medical
documents she is seeking. See Daughter’s Brief, at 42-48.

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the hearing. The purpose of the hearing was not to make a determination of

the rights and wrongs of Daughter’s complaints about Country Meadows and

their complaints about her, but to determine whether there was good cause

to appoint Keystone, a neutral third party, as Christiana Zeiger’s permanent

plenary guardian. The orphans’ court was presented with the circumstances

that, regardless of who was to blame, the friction between Daughter and

Country Meadows had reached a point where it had threatened to discharge

Christiana Zeiger in the past and specifically stated it would discharge her in

the immediate future if the court appointed Daughter as her guardian. As

noted above, Daughter offered no alternative plans for her mother’s care.

Thus, she has not shown that the court’s denial of her request for documents

prejudiced her. Further, we discern no error of law in the orphans’ court’s

refusal to turn over protected records, which were irrelevant to the

proceedings. Daughter’s final claim fails.

      Decree affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/19/2019




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