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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF DALE L.                   :   IN THE SUPERIOR COURT OF
    ANDERSON, SR., ALLEGED                     :        PENNSYLVANIA
    INCAPACITATED PERSON                       :
                                               :
                                               :
    APPEAL OF: JEFFREY B. ANDERSON             :
                                               :
                                               :
                                               :   No. 861 MDA 2019

                  Appeal from the Order Entered April 30, 2019
     In the Court of Common Pleas of York County Orphans' Court at No(s):
                                  67-18-2089


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                              FILED JANUARY 22, 2020

        Appellant, Jeffrey B. Anderson, appeals pro se from the April 30, 2019

Order denying his Petition to Determine Incapacity of Dale Anderson. After

careful review, we affirm.

        Appellant is the grandson of Dale L. Anderson, Sr. (“Dale Senior”).1 Dale

Senior has twelve adult children. In May 2018, Dale Senior executed a power

of attorney (“POA”) in favor of his daughter, Vickie Anderson (“Vickie”).2




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*   Retired Senior Judge assigned to the Superior Court.

1   Dale Senior, born on September 7, 1931, is now 88 years old.

2Vickie had also held the power of attorney for her mother, Dale Senior’s wife,
prior to her mother’s death in 2011.
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Around that time, Dale Senior also transferred ownership of the family home

to his daughter Michelle Anderson (“Michelle”).

       Until August 2018, Dale Senior lived with his sons Keith Anderson

(“Keith”) and Stephen Anderson, in the family home. On August 8, 2018, Dale

Senior left the family home with Appellant’s father, Dale L. Anderson, Jr.

(“Dale Junior”) and went to live with Appellant. On November 9, 2018, Dale

Senior returned to the family home.3

       On November 19, 2018, Appellant filed a Petition to Determine

Incapacity of Senior, alleging that Dale Senior is totally incapacitated and

needs a guardian separate and apart from the POA. Vickie disagreed that

Dale Senior was totally incapacitated. Although she conceded that Dale Senior

needs assistance handling his affairs, she represented that she was willing and

able care for him, and believed that he should remain in his home.

       On February 8, 2019, March 28, 2019, and April 29, 2019, the orphans’

court held hearings on Appellant’s Petition. Appellant, Vickie, and Dale Senior

all participated in the hearings represented by counsel. Appellant, Keith, Dale

Senior’s grandsons Ryan and Jeremy Anderson, and Dr. Faina Caplan, a

gerontology expert also testified.

       Relevantly, Dr. Caplan testified that after assessing Dale Senior and

reviewing the results of a cognitive exam performed by a social worker, she
____________________________________________


3 It is not entirely clear from the Notes of Testimony what precise events gave
rise to Dale Senior first leaving and then returning to his home three months
later, but it is clear that discord and conflict between and among Dale Senior
and his children and grandchildren was rampant.

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concluded that Dale Senior suffered from numerous chronic conditions

including “mixed dementia,” and she expects him to continue to decline

cognitively. She further testified that he has issues with short-term and long-

term memory and should not sign legal documents. She testified that, at the

time she examined him, Dale Senior was living with his grandson and seemed

pleased with that arrangement. She opined that he seemed easily influenced

by others, leaving him vulnerable to fraud or manipulation. She further opined

that he cannot independently manage his activities of daily living, including

his medical care and finances. She testified that he appeared to be well cared

for, well dressed, clean, alert and pleasant.

       Vickie testified and presented the testimony of Dale Senior’s daughter

Michelle; Dr. Ravi Dukkapati, Dale Senior’s neurologist; and Attorney Richard

H. Mylin, III.4

       Dale Senior testified on his own behalf, stating that he is happy with

Vickie having his power of attorney and with the care she is giving him. He

testified that he believes that he can still make some decisions and expressed

a desire to stay in his home, but recognized the need for the power of attorney.

       Dr. Ravi Dukkapati testified as an expert. He opined that Dale Senior

suffers from cognitive impairment, but that the impairment does not affect his

overall functioning or impede his ability to handle his affairs. Accordingly, Dr.

____________________________________________


4Attorney Mylin represented Dale Senior in the spring of 2018 to prepare the
deed transferring Dale Senior’s home to Michelle and to prepare Dale Senior’s
will.

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Dukkapati concluded that Dale Senior is not incapacitated.        Notably, Dr.

Dukkapati performed a follow-up examination during the pendency of these

proceedings on March 4, 2019.

       The parties stipulated to the testimony of Delores Hubbard, a York

County Area Agency on Aging caseworker.5 In particular, they stipulated that

Ms. Hubbard would testify that she investigated an August 8, 2018 “report of

need” regarding Dale Senior. This investigation yielded an unsubstantiated

determination, meaning that Ms. Hubbard did not uncover clear and

convincing evidence to substantiate the allegations of caretaker neglect or

exploitation. She would also testify that she witnessed considerable discord

among the various family members who vocalized tremendous disdain for

each other through calls and in-person interviews. Last, she would testify that

Dale Senior did not reveal any imminent harm, risk, or exploitation as per the

Older Adults Protective Services Act 35 P.S. § 10225.303(c).

       Following the three-day hearing, the trial court dismissed Appellant’s

Petition, concluding that Appellant had not proven Dale Senior’s incapacity by

clear and convincing evidence. This timely appeal followed.

       Appellant raises the following issue on appeal:

       Whether Appellant demonstrated by clear and convincing
       evidence that Dale Anderson, Sr. is an incapacitated person[?]
____________________________________________


5 They also stipulated to the testimony of Dale Senior’s daughter Bonnie
Shaffer pertaining to the circumstances surrounding Dale Senior’s execution
of the POA in favor of Vickie.



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Appellant’s Brief at 5.6

       “Our standard of review is well-settled in cases involving . . . an orphans’

court decision.” In re Estate of Cherwinski, 856 A.2d 165, 167 (Pa. Super.

2004). As we have explained:

       The findings of a judge of the orphans’ court division, sitting
       without a jury, must be accorded the same weight and effect as
       the verdict of a jury, and will not be reversed by an appellate court
       in the absence of an abuse of discretion or a lack of evidentiary
       support. This rule is particularly applicable to findings of fact
       which are predicated upon the credibility of the witnesses, whom
       the judge has had the opportunity to hear and observe, and upon
       the weight given to their testimony. In reviewing the Orphans’
       Court’s findings, our task is to ensure that the record is free from
       legal error and to determine if the Orphans’ Court’s findings are
       supported by competent and adequate evidence and are not
       predicated upon capricious disbelief of competent and credible
       evidence. However, we are not limited when we review the legal
       conclusions that Orphans’ Court has derived from those facts.

Id. (quoting In re Estate of Schultheis, 747 A.2d 918, 922 (Pa. Super.

2000)).

       Under Pennsylvania law, an incapacitated person is “an adult whose

ability to receive and evaluate information effectively and communicate
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6 As a prefatory matter, Appellant’s Argument section contains four distinct
issues, which do not correspond with, and are not fairly suggested by, the one
issue presented in his Statement of Questions Involved as required by
Pa.R.A.P. 2116(a). We need not, and will not, consider any issue that is not
contained in Appellant’s “Statement of Questions Involved” or that is not fairly
suggested thereby. Graziani v. Randolph, 856 A.2d 1212, 1216 (Pa. Super.
2004) (where appellant’s argument section contained “nine discrete sections
that corresponded in no clear way to the three questions presented,” the Court
addressed only those aspects of the argument that clearly pertained to each
question as stated); Pa.R.A.P. 2116(a) (stating, inter alia, “[n]o question will
be considered unless it is stated in the statement of questions involved or is
fairly suggested thereby”).

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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.

      A petitioner must prove incapacity by clear and convincing evidence.

We have explained that “[t]he standard of clear and convincing evidence is

defined as testimony that is so ‘clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without hesitance, of the

truth of the precise facts in issue.’” In re R.N.J., 985 A.2d 273, 276 (Pa.

Super. 2009) (citation omitted).

      In support of his claim that the orphans’ court erred in concluding that

he did not prove Dale Senior’s incapacity by clear and convincing evidence,

Appellant highlights the testimony of Dr. Caplan and Dale Senior that he

asserts was favorable to his position, and impugns Dr. Dukkapati’s testimony

as uninformed and “superficial at best.”       Appellant’s Brief at 10-14.     He

suggests, therefore, that the testimony favorable to him proved Dale Senior’s

incapacity by clear and convincing evidence.         Id.    Appellant’s claim is

essentially a challenge to the weight of the evidence.

      Instantly, the orphans’ court explained on the record its reasons for

dismissing Appellant’s Petition. It noted that it had heard a lot of testimony,

and that “a lot of it was contradictory and perhaps just as much of it [was]

based on speculation and the respective points of view of the various family

members.” N.T., 4/29/19 at 97.




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      The court credited the testimony of both Dr. Caplan and Dr. Dukkapati,

but noted that, because Dr. Dukkapati had examined Dale Senior more

recently, his observations were “perhaps better founded” than Dr. Caplan’s.

Id.

      The court did not credit the testimony of Keith, noting that it “was not

impressed with [his] credibility” and found him “somewhat evasive in his

answers” and having a “somewhat obvious” bias. Id. at 98.

      With respect to Appellant, the court found it “not clear from the

testimony that [Appellant] lacks an adverse interest to that of [Dale Senior].

Id. at 98-99.

      The court also made an assessment of Dale Senior’s in-court demeanor

and comportment, observing that he “was at all times appropriate in his

behavior[,] responded to questions appropriately[, and spoke ] to his attorney

during the course of the proceedings.” Id. at 100. The court did “note some

deficiencies in his memory and perhaps some understanding as well.” Id. at

100-01. The court concluded that Dale Senior displayed the ability to provide

for his health and safety through his arrangements with his daughters Michelle

and Vickie. Id. at 99. The court emphasized that Dale Senior “was pretty

with it when figuring out his life plan” by transferring the deed to his home to

Michelle and in executing a POA in favor of Vickie. Id. at 100.

      After considering the credibility of the witnesses, including their motives

and biases, the court concluded that Appellant failed to prove by clear and

convincing evidence that Dale Senior is an incapacitated person. Appellant

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essentially asks us to reassess the court’s determination of credibility of the

witnesses, and to reweigh the testimony and evidence presented at trial. We

cannot and will not do so. Accordingly, Appellant’s claim does not garner him

relief.

          Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/22/2020




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