J-A11005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: MARY KOCIS, AN INCAPACITATED                  IN THE SUPERIOR COURT OF
PERSON,                                                    PENNSYLVANIA

                            Appellee



APPEAL OF: EVELYN KOCIS AND
ELIZABETH KOCIS

                                                           No. 2744 EDA 2015


                  Appeal from the Order Entered August 3, 2015
                 In the Court of Common Pleas of Lehigh County
                       Orphans’ Court at No(s): 2012-0258


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                                   FILED JUNE 29, 2016

       Appellants,    Evelyn     Kocis   and   Elizabeth   Kocis   (collectively   “the

Sisters”), appeal from the order entered on August 3, 2015, in the Lehigh

County Court of Common Pleas. We affirm.

       The relevant facts of this case were set forth by the orphans’ court as

follows:

             Mary Kocis (“Mary”) was adjudicated incapacitated
       pursuant to 20 Pa.C.S.A. § 5511 in July, 2012, at the age of 78
       years. Her sisters, Evelyn Kocis and Elizabeth Kocis, (“the
       [S]isters”) appeal from the court’s order dated July 31, 2015,
       and filed of record on August 3, 2015, which denied their
       exceptions to three separate orders dated April 15, 2015, all of
       which granted different portions of a petition to access or
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A11005-16


     partition joint funds for the payment of Mary’s care, and an
     order dated April 20, 2015, which found Elizabeth Kocis in
     contempt and imposed sanctions therefor.

                                  * * *

             At the time the §5511 petition was filed, on February 15,
     2012, the residential care facility in which Mary had resided since
     April 30, 2011, had not received consistent payment for its
     residential services to Mary since her admission. Its outstanding
     bill at that time was in excess of $50,000.00.

            The hearing on the §5511 petition was continued from
     April 2, to May 14, 2012, at the [S]isters’ request to allow them
     sufficient time to retain legal counsel. They had resided in the
     community with Mary prior to Mary’s admission to her residential
     care facility. No counsel entered an appearance prior to the
     scheduled §5511 hearing, and the [S]isters filed a written
     answer, by fax, to the Clerk of the Orphans’ Court on May 11,
     2012, which contained no indication they were represented by
     counsel. Nevertheless, on May 12, 2012, Jeffrey Gilbert, Esquire
     appeared on their behalf and requested the §5511 hearing be
     continued so that the [S]isters could arrange for an independent
     medical examination (“IME”) of Mary. That request was granted
     by order dated, May 25, 2012, and the §5511 hearing was
     continued to June 25, 2012. Elizabeth Kocis was appointed
     Emergency Guardian of the Person authorized to arrange for an
     IME of Mary and was directed to make herself available to the
     nursing home and cooperate with the Emergency Guardian of
     the Estate, Laurie Schnaufer, “...including but not limited to
     providing such financial information or access to the assets of
     Mary Kocis as the Emergency Guardian of the Estate may
     request.”

           By letter report filed on June 25, 2012, the Emergency
     Guardian of the Estate represented that, despite the language
     contained in the May 25, 201[2], Order, Elizabeth Kocis was not
     reachable by the facility to make a medical decision on Mary’s
     behalf on at least one occasion. It also represented the [S]isters’
     finances were enmeshed with Mary’s finances and they were
     unable/unwilling to provide the information and records that
     would enable the Emergency Guardian of the Estate to attempt
     to determine Mary’s ownership interest in jointly owned property
     so as to qualify her for Medical Assistance benefits to which she

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J-A11005-16


     was likely entitled. Based upon this report and the testimony at
     the June 25 hearing, at which the [S]isters were represented by
     Attorney Gilbert and did not offer testimony regarding an IME of
     Mary, Mary was found to be incapacitated and in need of plenary
     guardianship services. Elizabeth was appointed Plenary Guardian
     of Mary’s person but not of her estate. Rather, Steven A. Litz,
     Esquire, an experienced attorney who serves as guardian of the
     estate of several other wards of the court, was appointed
     Guardian of Mary’s estate.

           The Final Decree, dated July 2, 201[2], contained the
     following express direction to Elizabeth as Guardian of the
     Person:

           ...the Guardian of the Person is directed to cooperate
           in all respects with the Guardian of the Estate and
           with all providers of residential and medical services
           to Mary Kocis. The Guardian of the Person shall
           promptly provide all documentation, records, and
           information as shall be requested by the Guardian of
           the Estate, and shall complete a Guardian’s
           Information Sheet and file it...within 5 business days
           of service of this Decree. The Guardian of the Person
           shall be available to be contacted at all times by the
           providers of health and residential services to Mary
           Kocis.

     Attorney Gilbert withdrew his appearance on behalf of the
     [S]isters by praecipe filed on August 3, 2012.

            Since his appointment as Guardian of the Estate, Attorney
     Litz has spent much time and effort attempting to qualify Mary
     for medical assistance. He promptly marshalled and utilized
     Mary’s solely owned assets for her care and maintenance.
     However, the bulk of Mary’s estate is comprised of her
     ownership interest in bank accounts and savings bonds owned
     jointly with the [S]isters. Until Mary’s ownership interest in that
     jointly owned property is determined, Mary has no assets with
     which to pay for her care, and cannot qualify for Medical
     Assistance (“M.A.”) benefits to which she is entitled. This has not
     yet been accomplished because [] the [S]isters have been
     unwilling to provide all of the records/information about property
     jointly held by the [S]isters and Mary.


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           Because of the lack of cooperation from the [S]isters, the
     M.A. application filed by the Guardian of the Estate was denied
     for want of explanation about Mary’s jointly owned assets.
     Attorney Litz was compelled to file an appeal from the denial of
     M.A. benefits. In April, 2014, the Lehigh County Assistance
     Office, (“LCAO”) issued a list delineating the information that it
     required to reconsider its denial of M.A. benefits. Though Evelyn
     did participate with Attorney Litz in reaching an agreement
     whereby the LCAO extended the deadline to October 27, 2014
     for submission of the necessary documentation to LCAO, the
     [S]isters did not supply the delineated items to the Guardian of
     the Estate. On September 26, 2014, Attorney Litz filed a report
     that set forth the steps he had taken to supply the necessary
     information to LCAO and the lack, of cooperation/compliance
     from the [S]isters. Based upon that report, an Order dated
     September 29, 2014, was entered that directed the [S]isters
     provide the information and documentation required by the
     LCAO to Attorney Litz within 20 days. The September 29, 2014,
     Order contained the following language in bold print: “failure to
     comply with this direction may result in the imposition of
     sanctions.” The [S]isters did not appeal or file exceptions to the
     September 29, 2014, Order; neither did they comply with it.

            The Guardian of the Estate nevertheless allowed the
     [S]isters an additional four months to provide the necessary
     information/documentation; even meeting personally with
     Elizabeth and speaking on the telephone with Evelyn in early
     February 2015. These additional efforts and courtesies proved
     fruitless as is set forth in the Guardian of the Estate’s second
     report filed on February 18, 2015. On February 25, 2015, the
     residential care facility, whose unpaid bill for services rendered
     then exceeded $300,000, filed a partition petition. A rule to show
     cause was issued on March 2, 2015, that clearly and
     unambiguously informed the [S]isters of the relief requested and
     the consequence of failing to file a written answer or other
     responsive pleading by a date certain:

                IT IS ORDERED, pursuant to Leh. O.C. Rule
          3.5-1(d), that a Rule be, and hereby is, issued upon:

                 Elizabeth Kocis, individually and as Guardian of
                  the Person of Mary Kocis, and;

                 Evelyn Kocis; and,

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J-A11005-16


                 Steven A. Li[t]z, Esquire, Guardian of the
                  Estate of Mary Kocis, to show cause, if any
                  there be why:

          1. All accounts/assets /investments titled in the joint
          names of Mary Kocis and/or Elizabeth Kocis and/or
          Evelyn Kocis as of November 1, 2014, should not be
          partitioned into as many shares as there are named
          joint owners and the fractional share of Mary Kocis
          be accessed and utilized by Steven A. Litz, Esquire,
          Guardian of the Estate of Mary Kocis to pay for the
          care and maintenance of his ward1 and,
                  1
                      The current unpaid balance for
                  residential services provided to Mary
                  Kocis at Phoebe Home is reported to be
                  in excess of $300,000.00.

          2. Elizabeth Kocis should not be removed as
          Guardian of the Person of Mary Kocis for her
          failure/refusal to cooperate with and provide
          necessary documentation to the Guardian of the
          Estate as requested by him and as directed by Order
          of this Court, and her failure to file annual reports as
          directed by Decree dated, July 2, 2012; and,

          3. Elizabeth Kocis and Evelyn Kocis should not be
          found in contempt of this Court’s Order dated,
          September 29, 2014 and be subject to the
          immediate imposition of sanctions, including but not
          limited to:

                  a. Payment of legal and guardianship
                  fees incurred by the Guardian of the
                  Estate and by the residential care
                  provider in connection with their efforts
                  to determine Mary Kocis’ interest in
                  jointly owned assets and to obtain access
                  thereto to pay for the cost of the care
                  and maintenance provided to Mary Kocis
                  since April 30, 2011; and/or

                  b. Payment of a daily fine in an amount
                  not less than $50/day; and/or,

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J-A11005-16



                 c. Incarceration in Lehigh County Prison.

           NOTICE IS HEREBY GIVEN THAT:

                           ANY    OF  THE    ABOVE-NAMED
                 PERSONS WHO IS OPPOSED TO THE
                 GRANTING OF THE PETITION FOR RULE TO
                 SHOW CAUSE, AND TO THE GRANTING OF THE
                 RELIEF AND IMPOSITION OF SANCTIONS AS
                 SET FORTH ABOVE AT NUMBERS 1-4 OF THIS
                 RULE RETURNABLE, MUST FILE A WRITTEN
                 ANSWER OR OTHER RESPONSIVE PLEADING
                 WITH THE CLERK OF THE ORPHANS’ COURT
                 DIVISION       OF     LEHIGH     COUNTY,
                 PENNSYLVANIA,        LEHIGH       COUNTY
                 COURTHOUSE, 455 WEST HAMILTON STREET,
                 ALLENTOWN, PENNSYLVANIA, ON OR BEFORE
                 APRIL 1, 2015.

                         FAILURE TO TIMELY FILE A
                 WRITTEN ANSWER OR OTHER RESPONSIVE
                 PLEADING WILL OPERATE AS AN ADMISSION
                 OF ALL AVERMENTS IN THE PETITION FOR
                 RULE TO SHOW CAUSE AND MAY RESULT IN
                 THE ENTRY OF AN ORDER GRANTING SAID
                 PETITION AND DIRECTING THE RELIEF
                 AND/OR/IMPOSING SOME OR ALL OF THE
                 SANCTIONS SET FORTH AT NUMBERS 1-4 OF
                 THIS RULE TO SHOW CAUSE, WITHOUT
                 FURTHER NOTICE.

           The [S]isters did not timely file an answer or other
     responsive pleading to the rule. On Friday, March 27, 2015,
     Evelyn faxed a letter to the Clerk of the Orphans’ Court that
     requested an extension of the April 1, 2015, deadline. Because
     she had not served counsel for petitioner with a copy, the Clerk
     did so. Her request for an extension of time to reply to the rule,
     that had been issued on March 2, 2015, was opposed. By order
     issued on March 31, 2015, Evelyn was given until April 16,
     2015,2 to respond to the issue of her contempt and imposition of
     sanctions therefor. The request to extend the April 1, 2015
     deadline regarding all other issues was denied. Since no
     responsive pleadings were filed by April 1, 2015, the averments

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J-A11005-16


     in the partition petition were deemed admitted pursuant to Leh.
     O.C. Rule 3.5-1(d). Accordingly, three separate orders were
     issued on April 15, 2015. The first removed Elizabeth as
     Guardian of the Person; the second found that Mary had a 50%
     ownership interest in all accounts titled in her name and the
     name of one of her sisters, and directed the financial institutions
     to distribute one-half of the balance of such joint accounts to the
     Guardian of the Estate; and the third found that certain US
     Series E Bonds in Mary’s name and social security number, that
     also had the name of one of her sisters, were owned 100% by
     Mary Kocis and directed the [S]isters to deliver them to the
     Guardian of the Estate within 15 days of the Order. Thereafter,
     by order dated April 20, 2015, Elizabeth was found in contempt
     of the September 29, 2015, order, and, as a sanction, directed
     she pay one-half of the legal fees of petitioner and one-half of
     the guardianship fees of the Guardian of the Estate attributable
     to his efforts to obtain necessary financial information. Though
     Evelyn did not file an answer to the contempt/sanction issue by
     the extended deadline of April 20, 2015, no Order was entered
     on that issue in light of the Exceptions filed on May 5, 2015 to all
     4 of the April, 2015 Orders.
           2
               Subsequently verbally extended to April 20, 2015.

            Each of the four April, 2015, orders resulted from the
     consistent refusal of the [S]isters to provide information
     necessary to qualify Mary for the public benefit to which she is
     entitled. They did not cooperate with the Guardian of the Estate,
     the LCAO or the residential care facility that has been providing
     care to Mary for more than 4 years. For most of this
     guardianship administration they chose not to be represented by
     counsel, and have ignored filing deadlines and direct orders of
     this Court. That they are elderly and professedly unaware of the
     legal consequences of their decision to handle this matter as
     they see fit, does not make them immune from those
     consequences. Had they properly appealed the September 29,
     2014, order, or properly and timely answered the partition
     petition, or filed a petition for review hearing if they believed
     Attorney Litz was not properly discharging his duties as Guardian
     of the Estate, a hearing would have been appropriate. They did
     none of those things, and argue instead there is no basis for the
     court’s orders that:




                                     -7-
J-A11005-16


                 determined the ownership interests in the
                  jointly owned property;

                 directed them to turn over to Mary’s duly
                  appointed Guardian of the Estate the assets
                  determined to be owned by Mary; and,

                 removed Elizabeth from the fiduciary position
                  of guardian of the person,

     because the Court failed to conduct a hearing. There was no
     hearing because the [S]isters, in effect, had admitted all the
     averments in the partition petition. The removal of Elizabeth as
     Guardian of the Person was based upon her failure to file any
     annual reports, or to follow any of the orders of the court that
     directed her to cooperate with the Guardian of the Estate and
     provide records/information necessary to access the public
     benefit to which Mary Kocis is entitled.

Orphans’ Court Opinion, 10/28/15, at 1-7 (emphases in original).        The

orphans’ court entered an order denying the Sisters’ exceptions and

directing that the four April 2015 orders remained in effect. Order, 8/3/15.

This appeal followed.

     On appeal, the Sisters raise the following issues:

     A. The record created before the Orphans’ Court did not support
     the Orphans’ Court’s 50% / 50% division of the joint accounts of
     Mary, Elizabeth, and Evelyn Kocis.

     B. The record did not support the Orphans’ Court’s finding that
     Mary Kocis owned 100% of the U.S. Series I savings bonds
     jointly titled in her name and the name of Elizabeth or Evelyn
     Kocis.

     C. The record did not support the Orphans’ Court’s finding that
     Elizabeth Kocis was in contempt of its Order of September 29,
     2014.

     D. The record did not support the Orphans’ Court’s decision to
     remove Elizabeth as the guardian of Mary Kocis’ person.

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The Sisters’ Brief at 5. We shall address these issues in the order in which

they were presented.

     In their first claim of error, the Sisters argue that the orphans’ court

erred in dividing joint accounts. The ownership of joint accounts is defined

under 20 Pa.C.S. § 6303(a).         Thus, because this question concerns the

application of a statute, we are presented with a question of law; our

standard of review is de novo and the appellate scope of review is plenary.

Ramalingam v. Keller Williams Realty Group, 121 A.3d 1034, 1042 (Pa.

Super. 2015) (citations omitted).

     The relevant statute provides as follows:

     (a) Joint account.--A joint account belongs, during the lifetime
     of all parties, to the parties in proportion to the net contributions
     by each to the sum on deposit, unless there is clear and
     convincing evidence of a different intent.

20 Pa.C.S. § 6303(a).

     The Sisters argue that “there is no evidence in the record probative of

the proportion of the net contributions of Mary, Elizabeth, and Evelyn to the

joint accounts.” The Sisters’ Brief at 16. The Sisters aver that this lack of

evidence prohibited the orphans’ court from making any findings and

apportioning the ownership interests in the joint accounts.      Id. at 16-17.

We disagree.

     The Comment to 20 Pa.C.S. § 6303 is instructive on this issue:

     The section contains no provision dealing with division of the
     account when the parties fail to prove net contributions. The

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J-A11005-16


      omission is deliberate. Probably, a court would divide the
      account equally among the parties to the extent that net
      contributions cannot be proven; but a statutory section
      explicitly embodying the rule might undesirably narrow the
      possibility of proof of partial contributions and might suggest
      that gift tax consequences applicable to creation of a joint
      tenancy should attach to a joint account. The theory of these
      sections is that the basic relationship of the parties is that of
      individual ownership of values attributable to their respective
      deposits and withdrawals; the right of survivorship which
      attaches unless negated by the form of the account really is a
      right to the values theretofore owned by another which the
      survivor receives for the first time at the death of the owner.
      That is to say, the account operates as a valid disposition at
      death rather than as a present joint tenancy.

20 Pa.C.S. § 6303 (cmt.) (emphasis added).

      The inability to determine individual contributions was due to the

Sisters’ refusal to comply with the orphans’ court’s directives. Accordingly,

as contemplated by the comment to section 6303, the orphans’ court divided

the accounts equally.      We discern no error of law, and the Sisters are

entitled to no relief on this issue.

      Next, the Sisters claim that the orphans’ court committed an error of

law when it found that Mary owned 100% of the U.S. Series I savings bonds

that were jointly titled in Mary’s name and the name of either Elizabeth or

Evelyn Kocis, contrary to 31 C.F.R. § 360.20(b).     The Sisters’ Brief at 19.

We disagree.

      Similar to our discussion in the first issue, we are again faced with the

application of codified law, here the Code of Federal Regulations (“C.F.R”).




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Thus, our standard of review is de novo, and our scope of review is plenary.

Ramalingam, 121 A.3d at 1042.

      The code section that the Sisters claim is controlling provides as

follows:

      (b) The Department of the Treasury will recognize a claim
      against an owner of a savings bond and conflicting claims of
      ownership of, or interest in, a bond between coowners or
      between the registered owner and the beneficiary, if
      established by valid, judicial proceedings specifically listed
      in this subpart. Escheat proceedings will not be recognized under
      this subpart. Section 353.23 specifies evidence required to
      establish the validity of judicial proceedings. Treasury may
      require any other evidence to establish the validity of judicial
      proceedings, such as evidence that the proceeding provided due
      process, complied with this part, and complied with relevant
      state law.

31 C.F.R. § 360.20(b) (emphasis added).

      However, we point out that because Mary and the Sisters are living,

any one of the parties named as owner or co-owner of the bonds had the

authority to surrender and retain payment on the Series I bonds:

      A savings bond registered in coownership form will be paid to
      either coowner upon surrender with an appropriate request, and
      upon payment (as determined in § 360.43), the other coowner
      will cease to have any interest in the bond.

31 C.F.R. § 360.37. Moreover, on each of these bonds, Mary was the owner

and her sisters were relegated to the status of first co-owners because the

bonds were registered under Mary’s Social Security number.         31 C.F.R. §

360.2(k).




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      We conclude that, contrary to the Sisters’ avement, the United States

Treasury would recognize and accept the orphans’ court’s order as being

from a valid judicial proceeding under 31 C.F.R. § 360.20(b). However, we

need not reach the validity of the underlying judicial proceedings because we

are not analyzing conflicting claims of ownership. Mary was the owner of the

bonds. 31 C.F.R. § 360.37. Accordingly, Mary was entitled to obtain the full

surrender value of the Series I bonds on which she was an owner pursuant

to 31 C.F.R. § 360.37. Nothing in the federal regulations provides that an

equal-shares apportionment is required when surrendering Series I bonds

where there are co-owners. Accordingly, we cannot conclude that the trial

court committed an error of law, and the Sisters’ second claim of error fails.

      In their third issue, the Sisters allege that the orphans’ court erred

when it held Elizabeth in civil contempt of the September 29, 2014 order.

We conclude that this claim is meritless.

             To be punished for contempt, a party must not only have
      violated a court order, but that order must have been definite,
      clear, and specific-leaving no doubt or uncertainty in the mind of
      the contemnor of the prohibited conduct. Because the order
      forming the basis for civil contempt must be strictly construed,
      any ambiguities or omissions in the order must be construed in
      favor of the defendant. In such cases, a contradictory order or
      an order whose specific terms have not been violated will not
      serve as the basis for a finding of contempt. To sustain a finding
      of civil contempt, the complainant must prove certain distinct
      elements: (1) that the contemnor had notice of the specific order
      or decree which he is alleged to have disobeyed; (2) that the act
      constituting the contemnor’s violation was volitional; and (3)
      that the contemnor acted with wrongful intent. A person may not
      be held in contempt of court for failing to obey an order that is
      too vague or that cannot be enforced.

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            When holding a person in civil contempt, the court must
      undertake (1) a rule to show cause; (2) an answer and hearing;
      (3) a rule absolute; (4) a hearing on the contempt citation; and
      (5) an adjudication of contempt.

           Fulfillment of all five factors is not mandated, however.
      The essential due process requisites for a finding of civil
      contempt are notice and an opportunity to be heard.

In re Contempt of Cullen, 849 A.2d 1207, 1210-1211 (Pa. Super. 2004)

(internal citation marks and quotations omitted). When reviewing an appeal

from an order of civil contempt, we will not disturb the lower court’s order

absent an abuse of discretion. Id.

      The September 29, 2014 order directed Elizabeth to deliver to

Attorney Litz the information and documents required by the Department of

Public Welfare, and as noted above, clearly informed Elizabeth that failure to

comply may result in sanctions. Order, 9/29/14, at 1. Despite this warning,

Elizabeth took no action. In an order filed on April 20, 2015, the orphans’

court held her in contempt. On May 5, 2015, Elizabeth filed exceptions to

the orders, including the finding of contempt.       On May 18, 2015, the

orphans’ court issued a rule to show cause as to why she should not be held

in contempt.   Eight days later, Elizabeth filed her response to the rule to

show cause.    In the order filed on August 3, 2015, the orphans’ court

confirmed its order holding Elizabeth in contempt.

      On appeal, the Sisters argue that the orphans’ court failed to follow

the proper procedure for a finding of civil contempt and that Elizabeth had


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no intent to violate the court order.              The Sisters’ Brief at 24-25.   We

disagree.

       First, we note that Elizabeth’s intent was established through her

numerous failures to comply even minimally with the court’s orders despite

repeated opportunities and directions to do so; i.e., she evidenced a clear

intent not to comply.        With respect to the court’s failure to hold a formal

contempt hearing, we reiterate that a hearing is not required. Rather, as set

forth above, the essential due process requisites for a finding of civil

contempt are notice and an opportunity to be heard. Cullen, 849 A.2d at

1211. Here, Elizabeth had notice of the original order, the order directing

her to comply with the original order or face sanctions, and the order initially

finding her in contempt.          Elizabeth’s failure to respond to the petition

resulted in the claims made in the February 24, 2015 petition being deemed

admitted.1 Moreover, the orphans’ court issued a rule to show cause as to

why she should not be held in contempt, thus providing her with the

opportunity to be heard.2          These factors result in an ample evidentiary

____________________________________________


1
  The petition alleged, inter alia, that the Sisters should be held in contempt
as they had failed to comply with the orphans’ court’s orders, failed to
cooperate with Attorney Litz, failed to provide documents regarding Mary’s
assets, caused Mary to be denied medical assistance, and that Elizabeth
should be removed as guardian. Petition, 2/24/15.
2
   See North Penn Consumer Discount Co. v. Shultz, 378 A.2d 1275,
1278 (Pa. Super. 1977) (noting that an opportunity to be heard does not
always require a hearing, and that other procedural means, such as the
(Footnote Continued Next Page)


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record upon which the orphans’ court held her in contempt.           While the

procedures followed in this case do not strictly follow the processes for a

finding of civil contempt, we are satisfied that the essential requirements, in

fact, were met.        Cullen, 849 A.2d at 1211.    Accordingly, we discern no

abuse of discretion.

      Finally, the Sisters claim that there were insufficient grounds for

Elizabeth’s removal, and because the court failed to hold a hearing, her

removal constituted reversible error pursuant to In re Estate of Velott,

529 A.2d 525 (Pa. Super. 1987). The Sisters’ Brief at 27-28. We conclude

that no relief is due.

      “The power of the orphans’ court to remove a guardian is an inherent

right, which will not be disturbed unless there is a gross abuse of discretion.”

In re Estate of Border, 68 A.3d 946, 959 (Pa. Super. 2013). A guardian of

the person is responsible for more than just health care decisions; she is

responsible for all of the incapacitated person’s care and custody. Id. at 956

(citing 20 Pa.C.S. § 5521).

      The orphans’ court may remove the guardian of an incapacitated

person when she:

      (1) is wasting or mismanaging the estate, is or is likely to
      become insolvent, or has failed to perform any duty imposed by
      law; or
                       _______________________
(Footnote Continued)

ability to file a petition or respond to a rule to show cause, may satisfy this
requirement).



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       (2) Deleted. 1992, April 16, P.L. 108, No. 24, § 4, effective in 60
       days.

       (3) has become incapacitated to discharge the duties of his office
       because of sickness or physical or mental incapacity and his
       incapacity is likely to continue to the injury of the estate; or

       (4) has removed from the Commonwealth or has ceased to have
       a known place of residence therein, without furnishing such
       security or additional security as the court shall direct; or

       (4.1) has been charged with voluntary manslaughter or
       homicide, except homicide by vehicle, as set forth in sections
       3155 (relating to persons entitled) and 3156 (relating to persons
       not qualified), provided that the removal shall not occur on these
       grounds if the charge has been dismissed, withdrawn or
       terminated by a verdict of not guilty; or

       (5) when, for any other reason, the interests of the estate are
       likely to be jeopardized by his continuance in office.

20 Pa.C.S. § 3182.3 The orphans’ court on its own motion may, and on the

petition of any party in interest alleging adequate grounds for removal shall,

order the guardian to appear and show cause why she should not be

removed, or, when necessary to protect the rights of creditors or parties in

interest, may summarily remove her. 20 Pa.C.S. § 3183.

       The record reveals that from the earliest stages of this matter, the

orphans’ court was aware of the numerous jointly owned assets.          Decree,

7/2/12, at 1-4. However, the orphans’ court permitted Elizabeth to serve as
____________________________________________


3
  While 20 Pa.C.S. § 3182 details the grounds for removal of a personal
representative in a decedent’s estate, it is also applicable to the removal of a
guardian of an incapacitated person. 20 Pa.C.S. § 5515.




                                          - 16 -
J-A11005-16


guardian, but it ordered her to produce documentation concerning Mary’s

jointly held assets, cooperate with Attorney Litz and promptly turn over all

necessary documentation to him, cooperate with the providers of Mary’s

medical and residential care, and file annual reports pursuant to 20 Pa.C.S.

§ 5521(c)(ii).   Id. Elizabeth did not comply with these directives.

      While a panel of this Court in Velott held that a failure to hold a

hearing was reversible error, we cannot conclude that the orphans’ court’s

failure to hold a hearing on Elizabeth’s removal in this matter was fatal.

Velott is distinguishable because, here, the orphans’ court had monitored

this case over the course of years and had an extensive record.           Unlike

Velott, in the case at bar, the Sisters’ refusal to respond to the petition

resulted in admissions to the claims of dereliction of duties as guardian.

In other words, there was ample evidence to support Elizabeth’s removal

due to her failures, and by way of the rule to show cause and ability to file

her own responsive pleadings, Elizabeth was provided an opportunity to be

heard.    Much of the Sisters’ arguments surround their desire to escape

responsibility for their years of failing to comply with the orphans’ court’s

orders.   As a reviewing Court, we cannot ignore the ramifications of the

Sisters’ disregard for their responsibilities because their actions and inactions

jeopardized Mary’s welfare. The orphans’ court did not abuse its discretion

in removing Elizabeth as the guardian of Mary’s person in light of the fact

that she failed to cooperate with Attorney Litz, failed to comply with court’s


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orders, and engaged in a continued course of conduct that jeopardized

Mary’s well-being. 20 Pa.C.S. § 3182(5).

      For the reasons set for the above, we conclude that the Sisters’ are

entitled to no relief. Accordingly, the August 3, 2015 order is affirmed.

      Order affirmed.

      Judge Mundy joins this Memorandum.

      Justice Fitzgerald Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




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