In Re: deLevie, E.

J-A28016-18

2019 PA Super 42

IN RE: ELSIE DELEVIE : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

APPEAL OF: RAYMOND DELEVIE, :

M.D. :

:

:

:

: No. 660 MDA 2018

Appeal from the Order Entered March 22, 2018

In the Court of Common Pleas of Centre County Orphans' Court at No(s):

1417-0339

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

OPINION BY OLSON, J.: FILED FEBRUARY 15, 2019

Appellant, Raymond deLevie, M.D., appeals pro se from the order

entered on March 22, 2018, removing him and appointing Alvin deLevie

(Petitioner), as health care power of attorney for their mother, Elsie deLevie

(Mother). We affirm.

The trial court summarized the facts of this case as follows:

Mother is 96 years old and has resided at Foxdale Retirement

Community (Foxdale) since February 27, 2007. Mother resides in

Anthony House at Foxdale, which provides 24 hour skilled nursing

care and assistance with daily activities. Mother has had medical

and nursing care provided to her by Foxdale staff including Rodney

Selpich, M.D. (Dr. Selpich), the medical director. Mother

appointed [Appellant], who has a medical degree, to be her Health

Care Agent and Petitioner to be her Alternative Health Care Agent

in a document titled Combined Living Will and Health Care Power

of Attorney.

[Appellant] acted as the Health Care Agent during Mother’s stay

at Foxdale, and attempted to work with the nursing staff and Dr.

Selpich. Following Mother’s fall on September 9, 2014, Mother

was injured and required the use of a wheelchair and assistance

getting in and out of bed and to use the bathroom. [Appellant]

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became increasingly difficult for Foxdale staff to accommodate

and work with, and he has intimidated and threatened nursing

staff. [Appellant] demanded access to information regarding

Mother’s call bell records and when Foxdale was slow in providing

him this information, he threatened to file a report with regulators.

[Appellant] was eventually provided [with] the information but

[he] continued to demand more information which Foxdale was

not obligated to provide, including notes made by nurses

regarding Mother’s condition.

The main point of contention between [Appellant] and Foxdale

involved the method nurses would use to transfer Mother from her

bed to the wheelchair. [Appellant] insisted on the use of a Beasy

Board, while Foxdale preferred a Hoyer Hoist. Foxdale informed

[Appellant] the hoist was easier and presented less risk to Mother,

and was faster and safer for the nurses assisting with the transfer.

[Appellant] alleged Foxdale was committing what he termed

battery by using the Hoyer Hoist and refused to discuss the use of

anything but the Beasy Board.

On March 17, 2017, [Appellant] surreptitiously recorded two

nurses transferring Mother out of her bed using the Hoyer Hoist.

[Appellant] did not have permission from Foxdale to record the

nurses. During a March 22, 2017 phone conference, [Appellant]

berated Foxdale staff members and reiterated his assertion

Foxdale was committing battery and admitted to recording

Foxdale staff using the Hoyer Hoist on Mother. In order to

appease [Appellant] and determine the best method for

transferring Mother, Foxdale offered to have a neutral third party

mediate the dispute. Foxdale suggested Dr. Richard Allatt to see

Mother and make a determination whether the Hoyer Hoist was

appropriate or if the Beasy Board would be a safer alternative.

[Appellant] called Dr. Allatt and spent nearly 25 minutes on the

[tele]phone with him and ultimately refused to permit Dr. Allatt to

see Mother. Foxdale sent [Appellant] a cease and desist letter on

March 24, 2017 asking him to refrain from making any further

recordings and to delete the recording he had already made.

Petitioner intervened and suggested [Appellant] choose three

local physicians who could act as mediators from which Foxdale

would choose one to mediate the dispute. [Appellant] refused to

provide any names.

On June 19, 2017, Dr. Sepich informed Mother he would not be

her healthcare provider effective in thirty days because of

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[Appellant’s] interference with Dr. Sepich’s treatment of Mother.

Petitioner filed [a] petition [to remove Appellant and appoint

Petitioner as a new Health Care Power of Attorney on June 29,

2017] and [an] associated [p]reliminary [i]njunction to prevent

Mother from having to seek medical care outside of Foxdale’s

onsite staff, which would require transportation to offsite medical

providers. Petitioner argue[d that] losing Dr. Sepich’s treatment

would be deleterious to Mother’s health and possibly result in

Mother having to move from Foxdale. Foxdale and Dr. Sepich []

stated that they [would] continue to treat Mother if [Appellant

was] no longer her Health Care Agent.

Trial Court Opinion, 3/22/2018, at 2-3.

As briefly stated above, Petitioner filed a motion for a preliminary

injunction on June 29, 2017. In that motion, “Petitioner request[ed] that

[Appellant] be preliminarily enjoined from acting as Health Care Power of

Attorney in order to prevent immediate and irreparable harm to [Mother].”

Motion for Preliminary Injunction, 6/29/2017, at 3 ¶12. “Petitioner

request[ed] that he be granted status as Health Care Power of Attorney for

[Mother] pending a hearing” on the petition to remove Appellant. Id. at ¶16.

On June 29, 2017, the trial court entered an order enjoining Appellant “from

acting as Health Care Power of Attorney for [Mother] and [appointing

Petitioner] as the Health Care Power of Attorney for [Mother] until further

order[.]” Trial Court Order, 6/29/2017, at *1.

The trial court held hearings on the petition to remove Appellant on

August 31, 2017 and October 23, 2017. The trial court granted relief by

opinion and order entered on March 22, 2018, removing Appellant as Mother’s

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health care power of attorney and appointing Petitioner in his stead.1 This

timely appeal resulted.2

On appeal, Appellant presents the following issues, pro se, for our

review:

1. Did the trial court accurately state the procedural history of this

case?

2. Did the trial court commit an error of law and deny [Appellant]

due process in interpreting 20 Pa.C.S. § 5454(d) when it (1)

allowed [P]etitioner to amend his original § 461(e) petition,

and (2) immediately revoked [M]other’s health care power of

attorney?

3. Did the trial court abuse its discretion by granting [P]etitioner’s

motion for a preliminary injunction, when [P]etitioner failed to

prove all of the “essential prerequisites” necessary to obtain

such injunctive relief?

4. Did the trial court’s findings of fact constitute an abuse of

discretion? E.g. capricious disregard of evidence; lack of

evidentiary support; manifestly unreasonable; overriding or

misapplication of the 1987 Nursing Home Reform Act, 42

U.S.C. § 1395i-3 (the nursing home Act), and the associated

42 CFR Part 483 regulations, the American Medical

Association’s Ethical Opinion 1.1.3 recognizing a patient’s right

to continuity of care, and the Pennsylvania Wiretap Act?

5. Whether the trial court’s factual and legal conclusion, that it

would not be in [M]other’s best interest for [A]ppellant to serve

as health care agent, is premature, denied [A]ppellant due

process and discovery as to the merits of the § 5461(e) petition

____________________________________________

1 Because the order at issue changed the status of a fiduciary, it was a final

order subject to immediate appeal. See Pa.R.A.P. 342(a)(5).

2 Appellant filed a notice of appeal on April 19, 2018 and complied timely

with the trial court’s direction to file a concise statement of errors complained

of on appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued a second

opinion pursuant to Pa.R.A.P. 1925(a) on June 7, 2018.

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to disqualify, is not supported by “clear evidence,” and is

erroneous as a matter of law?

6. Whether the trial court’s immediate disqualification of

[A]ppellant, without notice or a hearing, as [M]other’s health

care representative, in the future, violates due process?

7. Whether it was an abuse of discretion for the trial court not to

reopen the record, to admit into evidence the December 1,

2017 violations report from the Department of Human

Services, regarding [M]other’s care at Foxdale Village, in light

of the court’s negative statement in its initial opinion that

[A]ppellant “threatened to file a report with regulators[?]”

8. Did the trial court abuse its discretion by (1) curtailing the

hearing on October 23, 2017 – without prior notice or

explanation – thereby limiting [A]ppellant’s testimony, (2)

refusing to allow the court reporter to note this curtailment in

the transcript, and (3) denying his motion to include, in the

record, his affidavit regarding this curtailment[?]

Appellant’s Brief at 18-20.

Initially, we note that Appellant’s lengthy brief violates our rules of

appellate procedure. “A principal [appellate] brief shall not exceed 14,000

words and [a] party shall file a certificate of compliance with the word count

limit if the principal brief is longer than 30 pages.” Pa.R.A.P. 2135. “The

certification requirement is not limited to counsel: Pro se litigants, too, are

obliged to provide a certification for a primary brief that exceeds thirty pages.”

Commonwealth v. Spuck, 86 A.3d 870, 873 (Pa. Super. 2014), citing

Pa.R.A.P. 2135(d) (“[T]he attorney or the unrepresented filing party shall

include a certification that the brief complies with the word count limits.”

(emphasis added)). Here, Appellant’s brief is 79 pages long, clearly in excess

of 14,000 words, and Appellant has failed to file a certificate of compliance

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pursuant to Pa.R.A.P. 2135. While we construe pro se filings liberally, we

remind Appellant that pro se litigants must comply substantially with our rules

of procedure, as this Court cannot act as counsel. Spuck, 86 A.3d at 874.

However, in this instance, Appellant’s defective brief has not hampered our

review and, thus, we will we examine Appellant’s claims on their merits. While

Appellant presents eight issues for review, we will consolidate and reorganize

them when appropriate for ease of discussion and brevity.

Our standard of review is as follows:

Our standard of review of the findings of an Orphans' Court is

deferential. When reviewing a decree entered by the Orphans'

Court, this Court must determine whether the record is free from

legal error and the court's factual findings are supported by the

evidence. Because the Orphans' Court sits as the fact-finder, it

determines the credibility of the witnesses and, on review, we will

not reverse its credibility determinations absent an abuse of that

discretion. However, we are not constrained to give the same

deference to any resulting legal conclusions. The Orphans' Court

decision will not be reversed unless there has been an abuse of

discretion or a fundamental error in applying the correct principles

of law. This Court's standard of review of questions of law is de

novo, and the scope of review is plenary, as we may review the

entire record in making our determination. When we review

questions of law, our standard of review is limited to determining

whether the trial court committed an error of law.

In re Fiedler, 132 A.3d 1010, 1018 (Pa. Super. 2016)(internal citations and

quotations omitted).

In his first issue presented, Appellant contends that the trial court

misstated the procedural history of this case. He claims that the hearings on

August 31, 2017 and October 23, 2017 were held on the preliminary

injunction, but the trial court was actually considering the petition for

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disqualification and removal. Appellant’s Brief at 48-51. As such, Appellant

suggests that he was denied due process of law by being haled into court to

defend himself on a basis other than the stated or noticed purpose of the

hearing. Id. Appellant’s fifth and sixth issues similarly challenge the trial

court’s actions as violating his right to due process. Id. at 76.

Initially we note that a hearing regarding the motion for preliminary

injunction was simply not required under the law:

The party seeking an injunction need not prove the merits of the

underlying claim, but need only show that substantial legal

questions must be resolved to determine the rights of the

respective parties.

* * *

The law with respect to hearings and preliminary injunctions is

clear. It provides:

A court shall issue a preliminary or special injunction

only after written notice and hearing unless it appears

to the satisfaction of the court that immediate and

irreparable harm will be sustained before notice can

be given or a hearing held, in which case the court

may issue a preliminary or special injunction without

a hearing or without notice. In determining whether a

preliminary or special injunction should be granted

and whether notice or a hearing should be required,

the court may act on the basis of the averments of the

pleadings or petition and may consider affidavits of

parties or third persons or any other proof which the

court may require.

Pa.R.Civ.P. 1531(a).

A hearing simply is not required under the law.

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Walter v. Stacy, 837 A.2d 1205, 1209–1210 (Pa. Super. 2003) (internal case

citations, quotations, and original emphasis omitted). In this case, the trial

court entered an order granting the preliminary injunction on the same day

Petitioner requested it. Thus, at the time of the hearings on the petition to

remove, the preliminary injunction was already in effect. The only remaining

issue before the trial court was whether Appellant be removed and replaced

as Mother’s health care agent.

Moreover, upon our review of the record, despite the preliminary

injunction captions on the cover sheets of the transcribed proceedings, at each

of the hearings it was clear that the parties were present to argue the petition

to remove. N.T., 8/31/2017, at 4; N.T., 10/23/2017, at 10-11. Counsel for

Petitioner noted that there was a preliminary injunction already in effect. N.T.,

8/31/2017, at 4. Moreover, at the end of the first proceeding, the trial court

scheduled a second hearing, but stated on the record that “[t]he injunction

will stay in effect.” Id. at 109. Importantly, from our review of the record,

Appellant never objected at these hearings that he did not get proper notice,

that the trial court denied him due process of law, that proceedings were

truncated, or that he was not prepared to defend the petition to remove.

Appellant further contends that the trial court erred by not reopening

the record to admit a “December 1, 2017 violation report of the Pennsylvania

Department of Human Services regarding [Mother’s] care in order to counter

[P]etitioner[’s] argument that a negative inference be drawn about

[Appellant’s] conduct because he ‘threatened to file’ a complaint with

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regulators.” Appellant’s Brief at 77. Because Appellant failed to cite any legal

authority to support his single paragraph, bald assertion, he waived this issue

for purposes of appellate review. See In re Estate of Whitley, 50 A.3d 203,

209 (Pa. Super. 2012) (citation omitted) (“This Court will not consider the

merits of an argument which fails to cite relevant case or statutory

authority.”). Moreover, “in reviewing the trial court's decision to reopen the

record, we determine whether the trial court committed an error of law [] or

abused its discretion.” Commonwealth v. Safka, 141 A.3d 1239, 1248 (Pa.

2016). On this issue, the trial court recognized that Appellant “was effectively

seeking to introduce additional evidence after the close of testimony” and “the

actual quality of care provided by Foxdale [was] not relevant to the matter[].”

Trial Court Opinion, 6/6/2018, at 5. We discern no abuse of discretion in

denying Appellant’s request to reopen the record. Appellant only offered the

document in question to bolster his own credibility and it was not material to

the issue before the trial court as to whether Appellant should be removed as

Mother’s health care power of attorney. For all of the foregoing reasons, we

discern no abuse of discretion or error of law in the trial court’s handling of

the proceedings or in its recitation of the procedural history of this case.

In his second issue presented, Appellant argues that the trial court erred

by allowing Petitioner to amend his original petition from an action to remove

under 20 Pa.C.S.A. § 5461 (decisions by health care representative) to an

action brought pursuant to 20 Pa.C.S.A. § 5454 (when health care power of

attorney operative). Appellant’s Brief at 54-59. Relying primarily on our

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decision in In re Estate of Border, 68 A.3d 946 (Pa. Super. 2013), Appellant

maintains that the trial court “had no authority under § 5454(d) to revoke

[Mother’s] health care power of attorney by which she had chosen [Appellant]

to be her agent and advocate.” Id. at 58. Appellant also asserts that he was

prejudiced by the late filing of the motion to amend and that “[P]etitioner was

not above board when he simply referred to § 5454 in his post-hearing brief,

as the matter was being submitted to the court for a decision based on

§ 5461(e).” Id.

“Leave to amend lies within the sound discretion of the trial court and

the right to amend should be liberally granted at any stage of the proceedings

unless there is an error of law or resulting prejudice to an adverse party.” Hill

v. Ofalt, 85 A.3d 540, 557 (Pa. Super. 2014) (citation omitted). “The policy

underlying this rule of liberal leave to amend is to insure that parties get to

have their cases decided on the substantive case presented, and not on legal

formalities.” Id. (citation omitted). Despite Appellant’s contrary argument,

effective July 8, 2016, Section 5454(d) provided that the trial court may

remove a health care power of attorney. See 20 Pa.C.S.A. § 5454(d) (“the

health care power of attorney is valid until revoked by [… t]he court”);

compare 20 Pa.C.S.A. § 5461(e) (“the court may disqualify for cause shown

an individual otherwise eligible to serve as a health care representative”). As

such, Appellant’s reliance on Estate of Border, a decision rendered prior to

the July 2016 amendment to Section 5454, is misplaced.

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In permitting amendment, the trial court stated that Appellant “is not

surprised by the amendment to the petition at this stage of litigation[,]”

because the entire dispute centered around “remov[ing] Mother’s health care

agent and preventing [Appellant] from acting as the health care

representative for Mother through the duration of her life.” Trial Court

Opinion, 3/22/2018, at 4-5. The trial court determined that Appellant’s

opposition to the request to amend was “merely advocating for a legal

formality to dismiss the case after all the evidence had been presented.” Id.

Based upon our standard of review and the rules permitting liberal

amendment, we discern no abuse of discretion or error of law in permitting

Petitioner to amend his cause of action from reliance on Section 5461 to

Section 5454.

Thereafter, the trial court determined:

An individual may create a health care power of attorney in a

dated and signed agreement witnessed by two individuals. 20

Pa.C.S.A. § 5452. The health care power of attorney shall identify

the principal and appoint a health care agent. [20 Pa.C.S.A.]

§ 5453(a). The [c]ourt has the power to revoke the Health Care

Power of Attorney. [20 Pa.C.S.A.] § 5454(d)(2). The invalidity of

a specific direction does not negate the entirety of the Health Care

Power of Attorney, and the remaining portions continue to remain

in full effect. [20 Pa.C.S.A.] § 5454(c). Having [Appellant] remain

as Health Care Agent would impact Mother’s treatment because of

his full refusal to work with Foxdale staff resulting in Dr. Sepich

refusing to be Mother’s doctor while [Appellant] is the Health Care

Agent. It is in Mother’s best interest for Petitioner to be the Health

Care Agent and work with Foxdale to preserve Mother’s residency

and relationships. The portion of the Health Care Power of

Attorney naming [Appellant] as Health Care Agent is revoked and

Petitioner is appointed Health Care Agent.

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A health care power of attorney appoints a health care agent,

while a health care representative is an individual authorized

under § 5461 to make decisions for the principal in the absence

of a health care agent. [20 Pa.C.S.A.] § 5422. A Health Care

Representative may only act when there is no Health Care Agent,

or no Health Care Agent willing to act. [20 Pa.C.S.A.] § 5461. An

adult child may act as Health Care Representative. [20 Pa.C.S.A.]

§ 5461(d). […] A person may be disqualified from acting as

Health Care Representative by the court for cause shown. [20

Pa.C.S.A.] § 5461(e). Foxdale’s staff has stated they will not

continue to provide medical treatment to Mother while [Appellant]

is acting as her Health Care Agent or Representative. The [trial

court found] this is sufficient to disqualify [Appellant] from acting

as Health Care Representative, as it is in Mother’s best interest to

continue with her onsite doctors providing for her medical care.

Trial Court Opinion, 3/22/2018, at 4-5.

Upon review of the applicable statutory provisions and case law, we

discern no abuse of discretion or error of law. The trial court is permitted to

remove a health care agent or health care representative for cause shown.

Here, the trial court determined that Petitioner showed cause to remove

Appellant because he was not acting in Mother’s best interest with regard to

her medical care. The record supports that determination and we discern no

abuse of discretion or error of law.

Finally, we address Appellant’s argument that the trial court abused its

discretion by granting the preliminary injunction because Petitioner failed to

prove all of the essential prerequisites for an injunction. Appellant’s Brief at

59-67. Appellant maintains that the trial court’s findings of fact constituted

an abuse of discretion. Id. at 67-75. However, having already determined

Appellant was properly removed as health care power of attorney for Mother,

as set forth above, the preliminary injunction was no longer necessary. As

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such, Appellant’s challenge to the preliminary injunction is rendered moot.3

In re S.H., 71 A.3d 973, 976 (Pa. Super. 2013) (“If events occur to eliminate

the claim or controversy at any stage in the process, the [issue] becomes

moot.”).

____________________________________________

3 We would also find Appellant’s claim regarding the issuance of the

preliminary injunction without merit. A party seeking a preliminary injunction

must prove:

1) that the injunction is necessary to prevent immediate and

irreparable harm that cannot be adequately compensated by

damages; 2) that greater injury would result from refusing an

injunction than from granting it, and, concomitantly, that issuance

of an injunction will not substantially harm other interested parties

in the proceedings; 3) that a preliminary injunction will properly

restore the parties to their status as it existed immediately prior

to the alleged wrongful conduct; 4) that the activity it seeks to

restrain is actionable, that its right to relief is clear, and that the

wrong is manifest, or, in other words, must show that it is likely

to prevail on the merits; 5) that the injunction it seeks is

reasonably suited to abate the offending activity; and, 6) that a

preliminary injunction will not adversely affect the public interest.

Hendricks v. Hendricks, 175 A.3d 323, 330 (Pa. Super. 2017). In this case,

the trial court determined that “Mother would be irreparably harmed by no

longer having access to the onsite medical treatment at Foxdale.” Trial Court

Opinion, 6/6/2018, at 4. The trial court further opined that the preliminary

injunction “prevented greater injury and restored the parties to their status

prior to Dr. Sepich’s refusal to treat Mother due to [Appellant’s] involvement.”

Id. The trial court also noted that the preliminary injunction “properly

restrained an activity, the right to relief [was] clear, and Petitioner was likely

to succeed on the merits.” Id. The trial court determined that “[t]he

injunction was suited to prevent the harm, and [was] not adverse to the public

interest.” Id. We agree. The trial court carefully weighed all of the necessary

factors before properly granting the preliminary injunction.

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For all of the foregoing reasons, Appellant is not entitled to relief. As

such, we affirm the trial court’s order removing Appellant, and subsequently

appointing Petitioner, as health care power of attorney for Mother.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/15/2019

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