In Re: Kocis, M. An Incapacitated Person

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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*

Former Justice specially assigned to the Superior Court.

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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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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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 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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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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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:

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 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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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

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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

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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.

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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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