J-A28037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF HELEN HARPER,              :     IN THE SUPERIOR COURT OF
AN ALLEGED INCAPACITATED                    :          PENNSYLVANIA
PERSON                                      :
                                            :
                                            :
APPEAL OF: ROBERT J. HARPER                 :
                                            :
                                            :
                                            :     No. 2570 EDA 2016

                    Appeal from the Decree July 26, 2016
    In the Court of Common Pleas of Delaware County Orphans' Court at
                              No(s): 597-2015


BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                             FILED DECEMBER 14, 2017

       Appellant, Robert J. Harper, Co-Guardian of the Person of Helen

Harper, appeals from the July 26, 2016 Order entered in the Delaware

County Court of Common Pleas granting the Petition to Sell Real Estate/Use

Proceeds to Satisfy Debts filed by Jacquelyn Goffney, Esquire, Co-Guardian

of the Estate of Helen Harper. After review, we affirm.

       Helen Harper is a ninety-nine year old woman residing at Wallingford

Nursing Home.     On November 25, 2015, following a hearing, the court

adjudged Ms. Harper incapacitated and appointed Jacquelyn Goffney,

Esquire, and Dana Breslin, Esquire, as her Co-Guardians.             Appellant, her

son,   appealed   the   adjudication   of       incapacity   and   appointment   of

guardianship, which this Court affirmed on January 5, 2017.             Matter of

Harper, No. 91 EDA 2016 (Pa. Super. filed January 5, 2017) (unpublished

memorandum).
J-A28037-17



      During their tenure as Co-Guardians of the Estate, Attorney Goffney

and Attorney Breslin determined that Ms. Harper had accrued $180,000 in

unsecured debts that she could not pay with the liquid assets in her estate.

The Co-Guardians further determined that Ms. Harper’s debts were mainly

due to the mismanagement of her assets by Appellant, acting as agent

under a power of attorney.

      Although Ms. Harper has very little in the way of liquid assets, she

owns several tracts of land including a commercial property at 611 N.

Swarthmore Avenue, Ridley Park (the “Property”). Based upon a substantial

amount of unpaid taxes, the sheriff had scheduled a proposed upset tax sale

of all of Ms. Harper’s properties for September 2016. In response, Attorney

Goffney sought to sell a portion of the Property to pay off Ms. Harper’s

outstanding debts and to ensure that she did not lose all of her properties to

tax foreclosure proceedings. The Property contained a lumberyard, a run-

down garage, and a single family home that was unsafe to occupy and

required demolition.

      The Co-Guardians obtained an agreement of sale of the Property for

$320,000 as-is, including indemnification on any environmental issues and

requiring the buyer to perform their own environmental remediation and

removal of debris from the premises.      Accordingly, on June 1, 2016, Ms.

Goffney filed a Petition to Sell Real Estate/Use Proceeds to Satisfy Debts

(“Petition”). Appellant objected to the Petition, alleging that the sale price




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was too low, that Attorney Goffney inadequately advertised the sale, and

that a sale by auction would bring a higher sales price.

        On July 26, 2016, the court held a hearing on the Petition.            Ms.

Goffney presented: 1) the testimony of Anthony Tartaglia, Ridley Park

Brorough Code Enforcement Office; 2) a commercial appraisal completed by

Kevin B. Flynn concluding that the fair market value of the Property was

$310,000; and 3) a letter affidavit from Donald J. Grimes, a Pennsylvania

Licensed Real Estate Sales Person, who concluded that the cash sale price

offered for the Property is reasonable.          Following the hearing, the court

granted the Petition, approving the sale of the Property for $320,000 in

order to pay Ms. Harper’s outstanding debts and taxes.           Appellant timely

appealed.1,   2


        Appellant raises the following two issues on appeal:

        1. Whether the lower court abused its discretion and committed
           error of law claiming jurisdiction over Helen Harper in
           violation of 20 Pa.C.S.[§] 5511(a) citing “service shall be no
           less than 20 days in advance of the hearing[?]”

        2. Whether the lower court erred in granting the sale of 611
           Swarthmore Avenue, Ridley Park, PA[] 19078 consisting of
____________________________________________


1   The court did not order Appellant to file a Pa.R.A.P. 1925(b) Statement.

2 On August 23, 2016, Attorney Goffney filed a Petition to Allow Sale of Real
Estate to Proceed and Request for Postage of Appeal Bond. On September
12, 2016, the court granted the Petition and Ordered Appellant to post an
appeal bond in the amount of $600,000 within five days. Appellant failed to
post an appeal bond, and the Co-Guardians subsequently sold the Property
for the amount approved by the orphans’ court.



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J-A28037-17


         1.3 acres of commercial land, 9,200 square foot mason[]ry
         commercial building, 3 bedroom frame residence, two car
         garage[,] and substantial hardware and building material
         inventory for $320,000 against the best interest of Helen
         Harper.

Appellant’s Brief at 5.

      In his first issue, Appellant argues that the orphans’ court lacked

jurisdiction over the matter of Helen Harper’s incapacity in the first instance

because the court held a hearing on Ms. Harper’s incapacity fewer than

twenty days after providing her notice of the November 9, 2015 hearing, and

because Ms. Harper did not have counsel at the hearing.              Id. at 11.

Appellant alleges that the Affidavit of Service of the Petition, which the

Petitioner submitted as evidence to the orphans’ court, was defective. Id.

Appellant avers that the Affidavit of Service states that Ms. Harper received

notice of the Petition at her home on October 27, 2015, but that Ms. Harper

had been admitted to Wallingford Nursing Home on October 23, 2015. Thus,

Appellant concludes Ms. Harper could not possibly have received personal

service of the Petition at her home 4 days earlier. Id.

      In its prior Rule 1925(a) Opinion, the orphans’ court addressed the

claims Appellant raises in his first issue in this appeal. First, with respect to

Appellant’s averment that the orphans’ court did not provide Ms. Harper with




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J-A28037-17



statutory notice of the hearing regarding her capacity,3 thus, depriving the

court of jurisdiction over this matter, the court specifically found that,

       Helen Harper was properly served with notice of the Petition and
       the hearings in this matter as required by 20 Pa.C.S. § 5511(a).
       At the initial hearing on November 9, 2015, Robert George,
       Esquire, counsel for [the Delaware County Office of Services for
       the Aging], submitted into evidence an Affidavit of Service which
       was notarized and signed by Jane Ervin who attested that she
       had “personally served, read to, explained and left a copy of the
       CITATION WITH IMPORTANT NOTICE, Preliminary Decree, and
       accompanying Petition” upon Helen Harper.

Orphans’ Ct. Op., 3/10/16, at 6-7.

       Appellant bases his argument on the court’s lack of jurisdiction over

Ms. Harper on the alleged defectiveness and invalidity of the Affidavit of

Service. The Record before this Court, however, does not contain a copy of

this document, nor does it contain a transcript from the November 9, 2015

hearing, at which Appellant may have raised the issue of service of the

Petition.    Appellant had the obligation to ensure that the certified record

“contains all of the materials necessary for the reviewing court to perform its

duty.”      Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super.

2006) (citation omitted).         Owing to the absence in the record of any

evidence supporting this claim, we are unable to entertain this issue on



____________________________________________


3 20 Pa.C.S. § 5511(a) requires that a petitioner personally serve an alleged
incapacitated person with the Petition for Adjudication of Incapacity no less
than 20 days in advance of the hearing on the Petition.



                                           -5-
J-A28037-17



appeal. See Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super.

2006).

       Insofar as Appellant also baldly claims that Ms. Harper was prejudiced

when the court held the November 9, 2015 hearing without providing her

with counsel, the orphans’ court opined as follows:

       In light of the absence of Helen Harper at the November 9, 2015
       hearing, the significance of the allegations regarding Helen
       Harper’s condition and finances, and John Nilan, Esquire,
       appearing as opposing counsel on behalf of [Appellant], the
       [c]ourt appointed Jacquelyn Goffney, Esquire[,] Guardian Ad
       Litem on behalf of Helen Harper and scheduled this matter for an
       evidentiary hearing to be held on November 23, 2015 . . . [T]he
       court proactively appointed a Guardian Ad Litem for Helen
       Harper in order to ensure that the rights and best interests of
       Helen Harper were protected throughout this entire process.

Orphans’ Ct. Op, 3/10/16, at 6-7.

       Following our review, we conclude that the orphans’ court was plainly

aware of the gravity of the issue before it, and the importance of protecting

Ms. Harper’s rights.   Contrary to Appellant’s unsupported claim, the court

acted to ensure that, with the appointment of a Guardian Ad Litem, Ms.

Harper had every possible protection against prejudice.    Thus, Appellant’s

first issue fails.

       In his second issue, Appellant alleges that the trial court erred in

approving the sale of the Property for below fair market value, and that its

decision was arbitrary and against the weight of the evidence. Appellant’s

Brief at 12, 15. He argues that the orphans’ court erred in characterizing

the inventory on the Property as “trash,” and claims that Attorney Goffney

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J-A28037-17



inadequately advertised the sale. Id. at 13. Essentially, Appellant attempts

to re-litigate on appeal the issues he raised at the hearing on the Petition.

      Our standard of review of the findings of the orphans’ court is

deferential.   In re Ware, 814 A.2d 725, 731 (Pa. Super. 2002).           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.” In re Estate of Devoe, 74 A.3d

264, 267 (Pa. Super. 2013) (citation and quotation marks omitted).

“Because the [o]rphans’ [c]ourt 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.” In re Fiedler, 132 A.3d

1010, 1018 (Pa. Super. 2016), appeal denied, 145 A.3d 166 (Pa. 2016)

(citation and quotation omitted).

      The Honorable Chad F. Kenney has authored a comprehensive,

thorough, and well-reasoned Opinion addressing the reasons supporting the

court’s conclusion that the sale of the Property was in the best interests of

Ms. Harper, with references to the evidence and the testimony presented at

the hearing on the Petition and relevant case law.       After a review of the

arguments of the parties and the record, we affirm on the basis of that

Opinion, which found that Attorney Goffney presented clear and convincing

evidence that Ms. Harper’s financial interest is best served by the sale of the

Property at the confirmed fair market value of $320,000. See Orphans’ Ct.

Op., 2/13/17 at 2-5.

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J-A28037-17



     Order affirmed. Jurisdiction relinquished.

     Judge Panella joins the memorandum.

     President Judge Gantman concurs in the result.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/14/2017




                                   -8-
                                                                                           Circulated 11/28/2017 03:46 PM




               IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                                   ORPHANS' COURT DIVISION


             In re: Helen Harper,                                      No. 597 of 2015
             An lncapacitated Person




                                                            OPINION

                    Thls matter came before the Court on a Petition to Sell Real Estate/Use Proceeds to
             Satisfy Debts. After a full evidentiary hearing on July 26, 2016 regarding this current Petition at
             which all interested parties had an opportunity to submit evidence and elicit testimony, the
             Court entered a Decree allowing the Co-Guardians of the Estate to sell one of the properties
             ow�ed by Helen Harper at the price of $320,000 In order to pay for currently outstanding debts
----.,       and taxes. Robert Harper filed a Notice of Appeal of the Court's Final Decree on July 26, 2016.
             This Opinion follows and, for all of the forthcoming reasons, the Final Decree entered by the
             Court should be affirmed.


                                                         BACKGROUND
                    Helen Harper is a ninety-nine {99} year old Individual residing at Walllngford Nursing
         Home. On November 25, 2015, Helen Harper was adjudged Incapacitated and                     Jacquelyn

         Goffney, Esquire, the Petitioner on this matter, was appointed Co-Guardlan of the Estate with
         Dana Breslin, Esquire (hereinafter jointly referred to as Co-Guardlans of the Estate) and Co-
         Guardian of the Person. This adjudication of incapacity and appointment of guardianship was
         subsequently appealed by Robert Harper, the son and appointed Co-Guardian of the Person of
         Helen Harper, and subsequently affirmed by the Superior Court on January 7, 2017.1
                    During their tenure as Co-Guardians of the Estate, it was determined that Helen Harper
         had accrued $180,000.00 in secured and unsecured debts which was unable to be paid with the


         1
             Matter ofHarper, No. 91 EDA 2016 (Pa. Super. 2017).

                                                                   1
                I
                i


                I
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                     liquid assets of her estate. This excessive debt was determined to be mainly due to the
            l
            I
                     mismanagement of Helen Harper's assets by Robert Harper, her son, acting as agent under a
            I
                     power of attorney.' Although having no llquld assets, Helen Harper owns several tracts of land,
            I
                     Including a commercial property located at 611 N Swarthmore Ave, Ridley Park. Based upon a
            I
            j        substantial amount of unpaid taxes, all of the properties held by Helen Harper were subject to a
                     proposed upset tax sale scheduled for September 2016. Pursuant to the need of the Co-
            I




                     Guardians of the Estate to pay· off these outstanding debts and to ensure that all of the
                     properties owned by Helen Harper would not be lost to tax foreclosure proceedings, they
                    sought to sell a portion of 611 N. Swarthmore Avenue, Ridley Park, PA located north of
                    Swarthmore Avenue (hereinafter the Real Property) containing a lumberyard; garage, and
                    single-family home.
                            The Petitioner obtained an Agreement of Sale at a price of $320,000.00 as-is, which
                    includes indemnification on any environmental issues and requiring the buyer to perform their
                    own environmental clean-up and removal of debris from the premises.               The buyer would
                    further demolish the rundown building and residential home located on the Real Property
                    which are not up to code and unsafe to occupy. Subsequently, court approval was sought for
                    the private sale of the Real Property and Robert Harper objected. Mr. Harper asserts that the
                    sales price Is too low, the sale was not properly advertised, and that sale by auction would
                    produce a higher sales price.


                                                              DISCUSSION
                           Approval of a private sale of an incompetent's interest In real estate will be granted
                    when the court determines that the proposed sale Is In the best interest of the Incapacitated
                    lndivldual. In re Pelechacz' Estate, 116 A.2d 117 (Pa. Super. 1955). The Orphans' Court Rules set
                    forth differing requirements for a petition of private sale of real property to allow the court to
                    properly determine the best interest of an incapacitated person. Pa.O.C. Rule 5.11. Under ·
                    these rules, a Petitioner must provide, inter alto, two (2) affidavits attesting to the value of the
                    property from competent individuals knowledgeable about the real estate in the area and that
,. . ._,_           have inspected the property Intending to be sold at private sale. Pa.O.C. Rule 5.11(b). These

                                                                     2   .
         affidavits are provided so the court can adequately confirm that the price obtained at private
         sale is the fair market value of the premises.
                 The Petitioner has met all of the criteria set forth In Pa.O.C.Rule 5.11, Including an
         appraisal report and an affidavit of value which Indicate that the fair market value for the Real
         Property is approximately $310,000 and $320,000, respectively. The appraisal report prepared
         by Kevin B. Flynn, MAI, CCIM, a certified general appraisal and real estate broker, determined
         the value of the Real Property using the Industry approved sales comparison approach. Using
         comparable commercial properties and adjusting these prices for the condition and location of
         the Real Property, Mr. Flynn determined the fair market value to be $310,000.00 and that the
         economic life of the structures on the Real Property contribute no value to the underlying land.
         This fair market value is $10,000 less than the sales price obtained by the Petitioner In as-is
         condition.
                Testimony from Anthony Tartaglia, a building code official with thirty-one (31) years'
         experience for various boroughs, indicates that no one could safely occupy the lumberyard
         building and that the residential home was uninhabitable.            Mr. Tartaglla took numerous
         pictures of the Real Property showing substantlal water damage and deterioration to both the
         building and slngle-famllv home. Photographic evidence shows that the Real Property is In
         shambles and contains numerous lnoperatlve rundown cars and trucks which act as attractive
         nuisances. These pictures and testimony further establish that the contents of the building had
         little to no value and most items were not In any condition to be sold, but were merely trash.
         The building Inspector indicated that Robert Harper had received notices of these violations in
         prior years, but Mr. Harper never remedied these substantial issues and merely allowed this
         property to remain in this condition for the past three (3} years.
                Robert Harper asserts he believes that the buildings on the Real Property could be
         rehabbed and the house could be rented for $1,500/mo. and the building could be rented for
         $10,000/mo. Instead of demolishing the buildings. Mr. Harper also states that the contents of
         the items within the buildings would essentlallv cover the entire proposed sales price.
         However, he did not provide any testimony or evidence of how he obtained these figures or
.   ._   their accuracy. The record Is 'devoid of any estimates presented by Mr. Harper to indicate the


                                                          3
       cost of repairs to the Real Property, its rental value, or the resale price of the Items contained In
       the building.
              Mr.   Harper further stated that he believes that the proposed sales price of the Real
       Property is too low. To support this claim Mr. Harper submitted online print-offs from Trend
       MLS, a real estate listing website, for commercial properties in Ridley Township and Eddystone
       Borough Identifying their sales prices at $1,000,000 and $1,400,000.           Mr. Harper did not
       Indicate how these properties. were comparable to the Real Property in question nor did he
       indicate any experience he had in appraising market values. Mr. Harper also provided hearsay
       testimony that a neighboring owner of a 50 ft. x 175 ft. commercial property was intending to
       put his property on the market for $210,000, which is less than one-fourth {1/4) of the size of
       the Real Property. Mr. Harper did not obtain any actual appraisals for the sales price, but relied
       mainly on his own speculation of price for the Real Property. Furthermore, the plctures of the
       Real Property directly contradict the testimony of Robert Harper in his assessment of the
       property and contents therein.
-             The Petitioner has established that the sales price of $320,000 is consistent with the fair
      market value for the Real Property, the property has not been maintained, and the structures
      on the Real Property are in disrepair. Without this private sale Helen Harper is unable to pay
      off the taxes owed on her remaining properties and risks losing them at tax sale. In retaining
    · the Real Property, Helen Harper also subjects herself to potential lawsuits stemming from the
      attractive nuisances currently present on the property and accumulates additional debt.
      Robert Harper has not provided any evidence or testimony, except for his own assumptions,
      which would establish that it is in the best financial interest of Helen Harper to renovate the
      property and attempt to sell it at auction. It has also been shown that Helen Harper has no
      liquid assets to make the necessary repairs to the property needed to bring the building and
      residential home up to code and increase the sales price.


                                               CONCLUSION
             Based upon the record presented in this matter, there is clear and convincing evidence
     that the financial interest of Helen Harper, an lncapacltated individual, is best served by the

                                                      4
          private sale of a portion of 611 N. Swarthmore Avenue, Ridley Park, PA located north of
          Swarthmore Avenue at the confirmed fair market value of $320,000. It has further been
          established that the proper procedure and applicable law was applied to determine the best
          Interest of Helen Harper.   Accordingly, the Court's July 26, 2016 Flnat Decree should be
          affirmed.




          DATED:




                                                          President Judge




.---...




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