J-A35032-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: ESTATE OF EDWARD 

WALTERMAN, AN INCAPACITATED 

PERSON,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: EDWARD WALTERMAN,

Appellant No. 498 WDA 2014

Appeal from the Order March 6, 2014

In the Court of Common Pleas of Washington County

Orphans' Court at No(s): 63-13-0377

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

MEMORANDUM BY BOWES, J.: FILED DECEMBER 30, 2014

Edward Walterman appeals from the orphans’ court’s determination 

that he is an incapacitated person. We affirm. 

Marsha J. Adams, a Protective Service Caseworker, and The 

Southwestern Pennsylvania Area Agency on Aging, Inc., instituted this action 

seeking a declaration that Appellant was an incapacitated person. A citation 

was issued, Appellant was permitted to proceed in forma pauperis, and 

Neighborhood Attorneys, LLC was appointed to represent Appellant. After 

the matter proceeded to a hearing, the orphans’ court found that Appellant 

was incapacitated. This appeal followed, and Appellant raises these issues 

on appeal: “Did the Trial Court abuse its discretion and/or err as a matter of 

law in adjudicating the Appellant incapacitated?” and “Was the evidence 

sufficient to support the Trial Court's finding that the Appellant is 
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incompetent and in need of guardians of his estate and person?” Appellant’s 

brief at 3. 

Appellant’s contentions are argued together on appeal. He suggests 

that there was not sufficient evidence to sustain the orphans’ court’s 

conclusion that he is incapacitated. We employ a deferential standard when 

reviewing a decree entered by the orphans’ court. In re Estate of 

Smaling, 80 A.3d 485 (Pa.Super. 2013). Specifically, 

 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. Where the rules of 

law on which the court relied are palpably wrong or clearly 

inapplicable, we will reverse the court's decree.

In re Estate of Fuller, 87 A.3d 330, 333 (Pa.Super. 2014). 

The definition of an incapacitated person is as follows:

“Incapacitated person” means 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. Thus, a person is incompetent if either he cannot 

manage his financial resources or if he cannot effectively communicate so as 

to meet the essential requirements for his physical health and safety. Syno 

v. Syno, 594 A.2d 307 (Pa.Super. 1991).
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“[A] person is presumed to be mentally competent, and the 

burden is on the petitioner to prove incapacity by clear and 

convincing evidence. In Re Myers' Estate, 395 Pa. 459, 150 

A.2d 525, 526 (1959). Our review of the trial court's 

determination in a competency case is based on an abuse of 

discretion standard, recognizing, of course, that the trial court 

had the opportunity to observe all of the witnesses, including, as 

here, the allegedly incapacitated person. Id. “A finding of 

mental incompetency is not to be sustained simply if there is any 

evidence of such incompetency but only where the evidence is 

preponderating and points unerringly to mental incompetency.” 

Id. at 527. 

In re Hyman, 811 A.2d 605, 608 (Pa.Super. 2002). 

Appellant’s brief merely recites the evidence favorable to himself. 

However, the orphans’ court found that Appellant cannot receive and 

evaluate information effectively to meet the essential requirements for his 

own physical health and safety. This finding, contrary to Appellant’s 

position, is amply supported by the evidence. Appellant was admitted to a 

nursing home after he broke his hip. He desired to return home even 

though his wife was incapable of meeting his physical needs. 

The court found Appellant incapacitated based upon the following 

facts. Appellant was ninety-five years old at the time of the adjudication of 

incapacity. Before his admission into the nursing home, Appellant 

continually drove his car, even though his license was revoked due to his 

mental infirmity. By these consistent actions, Appellant placed himself and 

the public in danger. Before his placement in the nursing facility, Appellant 

was observed wandering around in traffic on a cold day. Appellant also 

routinely shoplifted for excitement and had been arrested and convicted of 
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that crime. Before he broke his hip and went into the nursing home, he had 

in-home assistance and his caregivers all expressed concern for his safety. 

While at his nursing home, Appellant fell and insisted that he was fine 

and was not in need of treatment even though he obviously was in extreme 

distress in that he fractured his shoulder and orbital bone. Nursing home 

personnel established that Appellant was incapable of performing any 

activities of daily living (“ADLs”) in that he has to be assisted with bathing, 

eating, dressing, and taking his numerous medications. A registered nurse 

at the nursing home reported that Appellant suffered from short-term 

memory loss and forgot where he was and what he needed to do next. In 

direct contradiction to the testimony of these people, Appellant insisted that 

he was capable of caring for himself as well as his wife. The court viewed 

this delusional testimony as further evidence that Appellant was 

incapacitated. 

In light of the above proof, the adjudication of incapacity is supported 

by the record, and we affirm based upon the well-reasoned opinion of the 

Honorable Katherine B. Emery dated July 23, 2014. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2014