J-A16022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

IN RE: M.D.A., AN ALLEGED 

INCOMPETENT PERSON

APPEAL OF: M.D.A.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1142 MDA 2022

Appeal from the Order Entered July 12, 2022

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

88000

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 04, 2023

M.D.A. (“Mother”) appeals from the order entered on July 12, 2022, in 

the Court of Common Pleas of Berks County Orphans’ Court Division, 

adjudicating her to be an incapacitated person and appointing her son, J.D. 

(“Son”), and his wife, K.L.D. (“Daughter-in-Law”) (collectively “Petitioners”),

as plenary co-guardians of her person and her estate.1 For the reasons set 

forth below, we quash this appeal. 

This matter stems from a petition for the appointment of emergency coguardians of Mother’s person and her estate filed by Son and Daughter-in-Law 

on December 10, 2021, pursuant to 20 Pa.C.S. § 5513. Orphans’ Court 

Opinion (“OCO”), 9/26/22, at 1. Mother was born in August of 1944 and has 

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1 The order at issue is appealable as of right pursuant to Pa.R.A.P. 342(a)(5) 

(“An appeal may be taken as of right from ... orders of the Orphans’ Court 

Division ... determining the status of ... guardianship[.]”). 
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resided at Phoebe Berks (“Phoebe”), a nursing care facility, since September 

13, 2021. Id. Petitioners reside in Harrisburg, Pennsylvania. Id. at 1-2. 

Mother also has a daughter, K.D.-R. (“Daughter”), who resides in New York, 

New York. Id.

In May of 2021, Mother called Son and “cried that she needed help and 

needed somebody to take charge.” Id. at 5. She was living in South Carolina 

at the time. Id. A week later, Petitioners drove to South Carolina from 

Pennsylvania. Id. When they arrived at Mother’s gated community, she could 

not remember how to use the buzzer to open the gate. Id. Mother had lost 

weight because she was not eating. Id. Her home was in a disheveled 

condition, and she had placed post-it notes all over the house. Id. “Her 

checkbook was in disarray. Many bills were unpaid even though she had the 

money to pay them.” Id. at 6 (citation omitted). Since Mother was “stressed 

out and frazzled,” Son brought her back to Pennsylvania to live with him and 

his wife. Id. He told her that the arrangement was only temporary until her 

affairs were in order. Id. 

On June 17, 2021, Mother signed a general power of attorney (“POA”), 

appointing Petitioners as her agents. Id. at 2. In July of 2021, Son had 

Mother evaluated by Chen Zhao, M.D., a neurologist. Id. at 2, 6. Dr. Zhao 

determined that Mother suffers from Alzheimer’s disease, anxiety, and sleep 
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disturbance. Id. at 2. She concluded that Mother was “incapacitated[2] and 

unable to make informed decisions about her finances and healthcare. She 

also opined that Mother should be in a secured facility for her safety and basic 

needs.” Id.3 Based on Dr. Zhao’s evaluation, Son placed Mother in personal 

care at Phoebe on September 13, 2021. Id. at 2, 6. See also id. at 6 (noting 

Daughter informed Son that “if he did not want Mother, she would take her,” 

but Son decided that was not a good idea). 

Petitioners allowed Daughter to take Mother for a one-week visit to her 

home in New York over Thanksgiving 2021. Id. at 2. During that visit, 

Daughter had Mother revoke her POA in favor of Petitioners and had her sign 

a new POA in favor of Daughter. Id. “Daughter refused to return Mother to 

Phoebe.” Id. Thus, on December 10, 2021, Petitioners filed a petition seeking 

to be appointed as co-guardians of Mother and her estate, “to allow [them] to 

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2 Chapter 55 of the Probate, Estates and Fiduciaries (“PEF”) Code, 20 Pa.C.S. 

§§ 101-8815, defines an incapacitated person as “an adult whose ability to 

receive and evaluate information effectively and communicate decisions in any 

way is impaired to such a significant extent that he is partially or totally unable 

to manage his financial resources or to meet essential requirements for his 

physical health and safety.” 20 Pa.C.S. § 5501. 

3 We observe that Dr. Zhao’s expert report indicates Mother was “independent 

in basic [activities of daily living,] though require[d] prompting to attend to 

grooming” and recommends a “social worker to assist with home health 

services info” for Mother’s physical health and safety. Petition, 12/10/21, at 

Exhibit A (“Dr. Zhao’s Expert Report” at 3). In Dr. Zhao’s opinion, the most 

appropriate, least restrictive living situation for Mother would be a “secure 

facility[.]” Id. at 4. 
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move Mother back to Phoebe as soon as possible to avoid possible harm to 

Mother.” Id.

A hearing on the petition was originally scheduled for December 21, 

2021, and Rebecca L. Bell, Esquire, was appointed as counsel for Mother. Id.

at 3. Daughter filed a response to the petition, in which she averred that 

“Mother has the requisite capacity to determine her own living 

arrangements[,]” and that “Daughter wants Mother to live her remaining days 

with family so long as it is feasible.” Id. After several continuances, a hearing 

was held on July 12, 2021, at which Gary Champlin, Ph.D., a geriatric 

psychology expert; Michele Butch, the administrator of the personal care 

facility at Phoebe; and Son testified on behalf of the Petitioners. Daughter 

and Mother were called as witnesses on behalf of the respondent. N.T., 

7/12/22, at 2. 

The orphans’ court summarized Dr. Champlin’s testimony, based on his 

December 27, 2021 independent evaluation of Mother, as follows: 

He determined that Mother had difficulty with information about 

her medications and power of attorney and other memory 

difficulties. Dr. Champlin believed that Mother was doing well at 

Phoebe, which seemed like an appropriate placement 

[considering] Mother’s cognitive limitations. He believed that her 

wishes to live with family should be respected if a comparable 

level of care could be given by the family. At the time of the 

hearing, Mother’s expressed choice was to live with Daughter in 

the Bronx. 

Mother’s prognosis is poor in terms of her cognitive abilities, and 

there is a need for guardianship services. Dr. Champlin opined 

that neither of the power of attorneys were likely valid. Mother 

has cognitive deficits that affect her ability to make good 
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decisions. She does not know her medications. Her cognitive 

deficits are progressive. 

OCO at 3-4 (citations to record and some paragraph breaks omitted). 

Ms. Butch explained that the personal care facility at Phoebe where 

Mother resides provides “activities of daily living” for residents, like Mother,

that are in between independent living care and skilled nursing care. Id. at 

4; N.T. at 34. She described Mother as “very pleasant. She’s a very nice[,]

graceful lady.” N.T. at 36. Ms. Butch further testified that Mother’s primary 

issue concerns her cognition and memory. OCO at 4. She explained that the 

staff at Phoebe assists Mother with administering her medicine, offers her 

standby assist with showers, and reminds her to go to meals. Id. Ms. Butch 

also indicated that Petitioners have not authorized Phoebe to share any 

information with Daughter. Id. See also N.T. at 48 (Ms. Butch’s noting that 

when Daughter called the facility inquiring about Mother, she would refer her 

to Son). “There are constant telephone calls between Mother and Daughter. 

Ms. Butch believes that these calls deter Mother from leaving her room and 

that they interfere with Mother’s behavior and demeanor and her activities 

within the facility.” OCO at 4. 

Son is retired from the military. Id. at 5. He testified that he had a 

good relationship with Mother until approximately ten to twelve years ago. 

Id. He claims that he stopped communicating with Mother because she 

became “very condescending, dismissive, disrespectful, and nasty.” Id. See 

also N.T. at 86 (Son’s stating that “we haven’t been in contact for 10 to 12 

years until she called me in May of 2021”). Son reported that during the four 
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months that Mother lived with him, he prepared meals for her, had to remind 

her to bathe, and had to show her daily how to make coffee. Id. at 6. “Son 

believes that neither he nor Daughter can take care of Mother due to her 

Alzheimer’s disease.” Id. 

Regarding Daughter’s interactions with Mother, Son testified that he 

originally put Daughter on the “access list” at Mother’s doctors’ offices and at 

Phoebe; however, he revoked her status when Daughter started cancelling 

Mother’s appointments and telling Mother not to take her medication. Id. In 

February 2022, Son permitted Mother to visit Daughter in New York for two 

weeks, because Daughter wanted Mother to be evaluated for an in-home care 

plan. Son stated that the care plan addressed only cleaning and providing 

lunches; it failed to address Mother’s needs due to her medical condition. Id.

at 7. On at least two occasions, Son refused Mother visits with Daughter

because of medication issues. Id. 

Son acknowledged that his relationship with Mother is “still contentious 

at times.” Id. He admitted that they argued in June of 2022, and that he 

told Mother that “he should have left her ass in South Carolina” due to her 

behavior. Id. Notwithstanding, Son does not believe that it is relevant who 

has a better relationship with Mother – only the type of care Mother needs is 

relevant. Id. He believes that it is important for Mother to be at a facility 

that can take care of her now and in the future. Id. 
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Daughter works as a civilian principal for the New York Police 

Department. Id.4 She resides with her husband, who is retired. Id. 

Daughter testified that she has “a great relationship” with Mother. Id. at 8. 

She talks to Mother all the time because she does not want her to feel lonely 

or depressed. Id. Daughter acknowledged that there was a period of 

approximately 5 years during which she did not speak to Mother; however, 

Daughter was 23 years old at the time their rift began and is now 57 years 

old. Id. See also N.T. at 136 (“It was a long time ago..., but then we made 

up. And ever since then, we’ve been back to the way we always been.”). 

Daughter recalled that Mother called her in May of 2021 and told her 

that Son was coming to visit her. N.T. at 138. Daughter informed Son that 

she wanted to be Mother’s caretaker, but he said that was wishful thinking 

and that Mother needed a facility. OCO at 8.5 Once Mother was placed at 

Phoebe, she would occasionally stay with Daughter. N.T. at 140. Daughter 

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4 Mother explained, “[M]y position is called principal. I am a supervisor 

equivalent to a lieutenant.” N.T. at 135. She supervises administrative staff. 

OCO at 7. 

5 Daughter testified that she made it “very clear” to Son that she was willing 

to be Mother’s caretaker. N.T. at 139. See also id. (Daughter’s recalling 

telling Son that “before [Mother] goes to any facility, she will come and live 

with me”); id. at 140 (Daughter’s recounting a conversation with Daughterin-Law the night before Petitioners were taking Mother to Phoebe: “[Daughterin-Law] called me and told me that they were putting her in a facility. And I 

told [her], ... no, I will leave my house right now. I will come pick her up. She 

doesn’t have to go to no facility. And [Daughter-in-Law] said it was a done 

deal, that it’s too late. If I wanted my mom, I lost my chance because I didn’t 

go pick her up from South Carolina.”). 
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stated that, prior to Mother’s visit over Thanksgiving in November of 2021, 

Mother “was supposed to come live with me.” Id. Mother had given Phoebe 

her thirty-day notice twice to go live with Daughter,

6 but the first time, 

Daughter-in-Law talked Mother out of it. OCO at 8. At this point, the court 

interrupted Mother’s testimony and urged counsel to move on with any 

remaining witnesses.7 

During Mother’s testimony, she declared, “I would like for my daughter 

to take charge of me and my estate.... Because she understands me, she talks 

to me, and she lets my wish [sic] be known[,] and she does what I want, not 

what she wants.” N.T. at 145. Mother expressed that Daughter cares about 

her and loves her very much. Id. When asked where Mother wants to live, 

she responded, “My desire is to live with my daughter.... Because she respects 

me and she listens to me[.]” Id. at 146. Mother prefers living in a home as 

opposed to a facility and finds Daughter’s home “very comforting and secure.” 

Id. at 148. See also id. at 147 (Mother’s testifying that she is not happy 

living at Phoebe and stating, “I want to live with my daughter.”). 

In contrast, Mother stated that Son told her during a recent visit that he 

has a life to live. OCO at 8; N.T. at 146-47. Mother does not think Son 

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6 See N.T. at 141 (Daughter’s explaining that she spoke with Ms. Butch and 

that Ms. Butch said Mother “could make her own decisions. The only thing 

that [Mother] had to do was give her 30-day notice.”). 

7

 The court interjected, “I understand.... It’s clear what we have here. Now, 

who else are we going to have testify?” N.T. at 141. Counsel for Mother 

replied, “My client.” Id. The court stated, “Well, why don’t we get to that.” 

Id. 
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respects her wishes or does what is in her best interest. N.T. at 147. She 

described her experience living with Son and Daughter-in-Law as 

“uncomfortable.” Id. at 148. “Because they had their life, and they were 

living their life, and I felt I was interrupting them.” Id. Mother recalled Son 

becoming upset with her during his last visit with her when she refused to sign 

a document that he wanted her to sign. Id. at 149. “His eyes were bulging, 

and he was very upset, and he was right in my face almost nose to nose saying 

I should have left your ass in South Carolina.” Id. at 150. Mother indicated 

that she felt like Son was “filled with hate and disgust” for her, that Son does

not visit or call her, and that she does not think Son has the level of 

compassion for her that is needed to serve as her guardian. Id. at 155-56. 

After considering the foregoing evidence, the orphans’ court entered its 

July 12, 2022 order, declaring Mother to be an incapacitated person and 

appointing the Petitioners as permanent, plenary co-guardians of Mother’s 

person and her estate. OCO at 8. On July 21, 2022, Mother filed a timely 

motion for reconsideration, in which she requested that the orphans’ court

reconsider its decision and schedule a hearing to consider the appointment of 

a professional guardian, Sharon Gray, Esquire. Motion for Reconsideration, 

7/21/22, at 2-3. See also id. at ¶ 9 (explaining that while Mother desired for 

Daughter to be appointed as her plenary guardian, her “secondary choice 

would be for a professional guardian to be appointed”); id. at 10 (“Due to the 

lateness of the hour and the desire of the court to complete the testimony, 

[Mother] did not get to present her proposed order appointing Sharon Gray, 
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Esquire as her plenary guardian.”) (cleaned up). Petitioners filed a response 

on July 26, 2022. On August 3, 2022, the orphans’ court entered an order 

expressly granting Mother’s motion for reconsideration and scheduling a 

hearing on the matter for August 11, 2022. By order of court dated August 

10, 2022, the August 11, 2022 hearing was continued to October 18, 2022. 

On August 11, 2022, Mother filed a notice of appeal from the court’s 

July 12, 2022 decision appointing the Petitioners as her plenary co-guardians.

In response, the orphans’ court directed her to file a Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. Mother complied, and the 

orphans’ court filed its Rule 1925(a) opinion on September 26, 2022. On 

appeal, Mother presents a single issue for our review: “Whether the lower 

court erred in appointing [Mother’s] Son and Daughter-in-Law as plenary 

guardians instead of selecting either a professional guardian or ... [Mother’s]

daughter?” Mother’s Brief at 9 (cleaned up). 

Preliminarily, we must determine whether this appeal is properly before 

us. “Timeliness of an appeal is a jurisdictional matter which can be raised by 

the court sua sponte.” Penjerdel Refrigeration Corp., Inc. v. R.A.C.S., 

Inc., 442 A.2d 296, 297 (Pa. Super. 1982) (citations omitted). Thus, we 

consider the timeliness of Mother’s appeal under the guidance of the following 

applicable rules.

Pennsylvania Orphans’ Court Rule 8.2 provides, in relevant part: “By 

motion, a party may request the court to reconsider any order that is final 

under Pa.R.A.P. 341(b) or 342, or interlocutory orders subject to immediate 
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appeal under Pa.R.A.P. 311, so long as the order granting reconsideration is 

consistent with Pa.R.A.P. 1701(b)(3).” Pa.O.C.R. 8.2(a). See also Pa.O.C.R. 

8.2, Explanatory Comment (“The period for filing an appeal is not tolled by 

the filing of a motion for reconsideration unless the court grants the motion 

for reconsideration prior to the expiration of the appeal period.” (citing 

Pa.R.A.P. 1701(b)(3))); Pa.R.A.P. 903 (stating that a notice of appeal shall be 

filed within 30 days after the entry of the order from which the appeal is taken, 

except as otherwise set forth in Rule 903).

Pursuant to Pennsylvania Rule of Appellate Procedure 1701(b)(3), after 

an appeal is taken, the trial court may:

(3) Grant reconsideration of the order which is the subject of the 

appeal..., if:

(i) an application for reconsideration of the order is filed in 

the trial court ... within the time provided or prescribed by 

law; and

(ii) an order expressly granting reconsideration of such prior 

order is filed in the trial court ... within the time prescribed 

by these rules for the filing of a notice of appeal ... with 

respect to such order, or within any shorter time provided 

or prescribed by law for the granting of reconsideration. 

A timely order granting reconsideration under this 

paragraph shall render inoperative any such notice of 

appeal ... theretofore or thereafter filed or docketed with 

respect to the prior order. The petitioning party shall and any 

party may file a praecipe with the prothonotary of any court in 

which such an inoperative notice ... is filed or docketed and the 

prothonotary shall note on the docket that such notice ... has been 

stricken under this rule. Where a timely order of 

reconsideration is entered under this paragraph, the time 

for filing a notice of appeal ... begins to run anew after the 

entry of the decision on reconsideration, whether or not 

that decision amounts to a reaffirmation of the prior 
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determination of the trial court.... No additional fees shall be 

required for the filing of the new notice of appeal....

Pa.R.A.P. 1701(b)(3)(i), (ii) (emphasis added). 

Instantly, Mother timely filed her motion for reconsideration of the July 

12, 2022 decision on July 21, 2022. On August 3, 2022, within the 30-day 

appeal period, the orphans’ court expressly granted reconsideration, thereby 

tolling the appeal period. See Pa.O.C.R. 8.2, Explanatory Comment (“The 

period for filing an appeal is not tolled by the filing of a motion for 

reconsideration unless the court grants the motion for reconsideration prior to 

the expiration of the appeal period.”); Pa.R.A.P. 1701(b)(3) (“Where a timely 

order of reconsideration is entered under this paragraph, the time for filing a 

notice of appeal ... begins to run anew after the entry of the decision on 

reconsideration, whether or not that decision amounts to a reaffirmation of 

the prior determination of the trial court....”). Nevertheless, Mother filed her 

notice of appeal to this Court on August 11, 2022, and the orphans’ court 

never reached a decision on reconsideration. 

Under these circumstances, Mother’s notice of appeal was ineffectual,

and we are constrained to quash this appeal. See Pa.R.A.P. 1701(b)(3) (“A 

timely order granting reconsideration under this paragraph shall render 

inoperative any such notice of appeal ... thereafter filed or docketed with 

respect to the prior order.”); Pa. Prop. & Cas. Ins. Guar. Ass’n v. State 

Farm Ins. Co., 853 A.2d 407, 409 (Pa. Super. 2004) (noting that the trial 

court retained jurisdiction even though a notice of appeal was filed during the 
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appeal period, as the timely order granting reconsideration rendered the 

notice of appeal inoperative). 

We note that once a timely order expressly granting reconsideration is 

entered, there is no time constraint imposed on the orphans’ court for the 

entry of its reconsidered decision. See Pa.O.C.R. 8.2; Pa.R.A.P. 1701(b)(3). 

Thus, the orphans’ court may proceed with its consideration of Mother’s 

request for the appointment of a professional guardian. Further, nothing 

herein shall be construed as preventing Mother and/or Daughter from 

requesting a review hearing pursuant to their rights under Section 5512.2 of 

the PEF Code. See 20 Pa.C.S. § 5512.2 (“The court shall conduct a review 

hearing promptly if the incapacitated person, guardian or any interested party 

petitions the court for a hearing for reason of a significant change in the 

person’s capacity, a change in the need for guardianship services or the 

guardian’s failure to perform his duties in accordance with the law or to act in 

the best interest of the incapacitated person.”). In addition, given that 

Mother’s disease is progressive8 and that her circumstances may have 

changed since the July 12, 2022 hearing, we point out that the orphans’ court 

is empowered to conduct a review hearing at any time, at which it should 

honor Mother’s wishes to the fullest extent possible. See 20 Pa.C.S. § 5512.2 

(“The court may ... hold a review hearing at any time it shall direct.”); 

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8 See Dr. Zhao’s Expert Report at 4 (“Alzheimer’s is a chronic and progressive 

condition.”). 
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Interest of M.A., 284 A.3d 1202, 1215 (Pa. Super. 2022) (“The PEF Code 

mandates that orphans’ courts honor, to the extent possible, the wishes of the 

[alleged incapacitated person].” (citing 20 Pa.C.S. §§ 5502; 5521(a))); In re 

Estate of Rosengarten, 871 A.2d 1249, 1255 (Pa. Super. 2005) 

(emphasizing that “the intentions of the incapacitated person are to be 

honored to the fullest extent possible”).

Appeal quashed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/04/2023