J-A06032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: GERALD A. COLEMAN, JR.

AN INCAPACITATED PERSON

IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: GERALD A. COLEMAN, JR.

No. 2226 EDA 2014

Appeal from the Decree of June 17, 2014

In the Court of Common Pleas of Lehigh County

Orphans’ Court at No(s): 2013-1734

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 30, 2015

Gerald Coleman, Jr. (“Appellant”) appeals from the decree entered in 

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

adjudicating him to be an incapacitated person and appointing a plenary 

guardian of his person and estate. After careful review, we affirm.

The trial court aptly set forth the pertinent factual and procedural 

history as follows:

On November 14, 2013, Gerald A. Coleman, III, a medical 

doctor Board-certified in emergency medicine (“Dr. Coleman”), 

filed a Petition for Appointment of Emergency Guardian of the 

Person and Estate for his father, Mr. Coleman, and his mother, 

Mrs. Coleman.

With respect to Mr. Coleman, the petition alleged he was 

74 years of age and married; had recently been discharged from 

Lehigh Center, an assisted living facility, and had returned to his 

personal residence against the recommendation of medical 

professionals that he reside in an assisted living facility; that he 

had fired all medical personnel that had been hired to assist him 

while at home; had refused to relinquish his driver’s license 

despite such advice from several medical professionals; and was 
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unable to control his anger when medical personnel and family 

tried to assist him. The petition contained a note from Dr. Todd 

Holbrook (“Dr. Holbrook”) to the effect Mr. Coleman was not 

capable of making and understanding the consequences of 

decisions. It also contained a letter dated November 6, 2013, 

from Dr. Darryl Jackson, Medical Director of Lehigh Center, 

stating Mr. Coleman suffered from Parkinson’s induced 

dementia, was evasive with details and was impaired to make 

his own decisions.

. . .

A hearing on the emergency petitions was held on 

November 22, 2013. Mr. Coleman appeared mid-way through it; 

it is not clear from the record whether Mrs. Coleman appeared at 

that time.

With regard to Mr. Coleman, Dr. Holbrook, a medical 

doctor who is Board-certified in family medicine, testified he had 

treated Mr. Coleman since July 17, 2013, and last saw him on 

October 17, 2013. N.T. 11/22/13 at 22. He diagnosed Mr. 

Coleman as having a super nuclear palsy, a progressive disease 

with Parkinson-like symptoms. Id. He said Mr. Coleman 

became agitated and angry quickly; could not formulate 

reasonable decisions with regard to his health, safety, financial 

transactions, or medical needs, including giving informed 

consent for a medical or surgical procedure; could be taken 

advantage of by unscrupulous persons; could not take his 

medications safely; and had poor memory. Id. at 22-26. He 

also said Mr. and Mrs. Coleman engage in a lot of yelling with 

each other and do not quite understand the full severity of their 

medical condition or problems. Id. at 23. When presented with 

the statutory definition of an incapacitated person, Dr. Holbrook 

believed Mr. Coleman met that definition and probably required 

placement in a nursing center or, at a minimum, an assisted 

living facility. Id. at 26-27.

Mr. Coleman testified on his own behalf. He stated 

accurately that he had been the chief financial officer for CBS, a 

major New York Stock Exchange company. He also admitted he 

drove his automobile to the hearing even though his driver’s 

license had been suspended by PennDOT on the basis of 

information it received about his neurological or psychiatric 

condition. When asked about his license, he was confused and 

self-contradictory. Id. at 39-43.
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. . .

By order of November 22, 2013, Dr. Coleman was 

appointed emergency guardian of the person and estate for each 

of his parents. He filed a petition for determination of incapacity 

and appointment of a plenary guardian of the person and estate 

for each of his parents pursuant to 20 Pa.C.S.[] § 5501 et seq., 

on December 10, 2013. On the following day, December 11, 

2013, privately-retained counsel filed her appearance on behalf 

of Mr. Coleman and a motion to appoint a substitute emergency 

guardian of the person and estate and a guardian ad litem for 

Mr. Coleman, and to arrange for an independent evaluation of 

him. By orders of December 16, 2013, the court appointed 

Helen Stauffer, Esquire, guardian ad litem for Mr. Coleman; 

ordered his counsel obtain a medical evaluation of Mr. Coleman 

by a qualified physician of counsel’s choosing who would also be 

acceptable to the guardian ad litem; appointed Shannon 

Piergallini Smith, Esquire, guardian ad litem for Mrs. Coleman; 

and scheduled a hearing in each matter for March 4, 2014. By 

order of January 27, 2014, Mrs. Coleman’s guardian ad litem 

was authorized to arrange for Mrs. Coleman to be evaluated by 

any living/personal care facility selected by her guardian ad litem 

to determine Mrs. Coleman’s suitability for placement in such 

level of care.

Dr. Coleman subsequently resigned as emergency 

guardian of the estate and person for his parents. By order of 

February 14, 2014, Attorney David Roth was appointed to 

succeed Dr. Coleman as emergency guardian of the estate of Mr. 

Coleman and emergency guardian of the estate and person of 

Mrs. Coleman. As noted in the footnote to that order, no 

appointment of a successor emergency guardian of the person 

for Mr. Coleman was made since he appeared to be cooperating 

with his counsel and his guardian ad litem remained in place. By 

orders dated March 19, and filed on March 24, 2014, the hearing 

on the § 5511 petition was continued to June 9, 2014; Attorney 

Stauffer’s motion to be discharged as guardian ad litem for Mr. 

Coleman was granted; and Mrs. Coleman’s guardian ad litem 

was instructed to arrange for a qualified expert to evaluate her.

On May 22, 2014, counsel was appointed for Mrs. Coleman 

upon the request of her guardian ad litem. The final hearing on 

the §5511 petitions was held on June 9, 2014. Mr. Coleman 

attended with his privately retained counsel; Mrs. Coleman 
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attended with her court-appointed counsel and her courtappointed guardian ad litem.

With regard to Mr. Coleman, Dr. Susan Ingram, a clinical 

neuropsychologist who was retained by his counsel to evaluate 

Mr. Coleman’s cognitive functioning, testified she evaluated him 

on January 7 and 10, 2014. She found his memory in formal 

testing to be impaired “in some respects,” and his long term 

memory poor if he was not given enough time to process 

information. N.T. 6/9/14 at 65-66. He made several math 

errors when working with decimals and fractions, but, she said, 

was still within a range of most people. Id. at 67. She did not 

assess whether he could formulate decisions concerning his 

physical health and safety. Id. at 68. She concluded he had 

“very mild” dementia secondary to Parkinson’s disease. Id. at 

69. She felt Mr. Coleman could make a responsible decision 

regarding his medical and surgical treatment, but also stated he 

was prone to making “more errors, and poor judgments.” Id. at 

71. She did not assess whether he could make responsible 

decisions regarding financial transactions or whether he was able 

to live independently. Id. at 71-72. She was clear that he 

should not drive. Id. at 67. She also said she believed he could 

“properly function by himself without ongoing monitoring, 

without that ongoing treatment,” although she acknowledged 

she did not assess him outside of her office. Id. at 67, 72. 

When asked whether her report indicated “that Mr. Coleman 

needs a guardian at this time,” she replied “I can't say. I didn’t 

evaluate anything other than the cognitive functioning within my 

testing.” Id. at 75.

Attorney Roth, Mr. Coleman’s court-appointed emergency 

guardian of his estate, also testified. He said that although Mr. 

Coleman had been what Mr. Roth described as the controller of a 

division of CBS, his finances were “disheveled, and starting to 

come apart.” Id. at 80. He also said Mr. Coleman complained 

to him that his garbage had not been collected, although Mr. 

Coleman could not remember the name of the private company 

he used so that it could be contacted to address the matter, and 

that Mr. Coleman was confused about whether he had paid his 

real estate taxes and medical bills. Id. at 79-80.

Mr. Roth also testified that Mr. Coleman lived at home and 

received about six hours of services each week day. He has 

fallen and was hospitalized at least six times since February. 

One time his alert button went off, the police responded, [but] 
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he could not get up to answer the door so the police kicked it in, 

and Mr. Coleman refused medical treatment and threatened the 

police. It turned out he had pneumonia. Id. at 81. Another 

time after a fall in his house and being hospitalized Mr. Coleman 

agreed to 24-hour care, but canceled it the very next day. Id.

at 82. At times he has refused to admit his home health aid[e]s 

entry to his house. He called Mr. Roth daily to report his toilet 

was overflowing and “there was water everywhere.” Upon 

arriving at Mr. Coleman’s residence, Mr. Roth said “there was no 

water anywhere . . . the toilet just needed to be jiggled.” Id. at 

83-84.

Mr. Roth described Mr. Coleman as cooperative, polite, 

courteous and rational at times, and completely irrational, 

inappropriate and aggressive at other times. Id. at 84. He 

believed Mr. Coleman could not manage his financial affairs or 

manage his own medical care or be safe “in any respect 

whatsoever” without assistance. Id. at 86.

Finally, Mr. Coleman testified. There was nothing about 

his demeanor or answers that supported a finding he was 

capable of managing his own financial affairs or making 

decisions; on the contrary, he provided every indication he was 

incapable of managing his own affairs or otherwise making any 

such decisions.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed September 30, 2014, at 2-8 

(footnote omitted).

On June 17, 2014, the trial court entered a final decree adjudicating 

Appellant to be an incapacitated person and appointing a plenary guardian of 

his person and estate. Appellant timely appealed. Both Appellant and the 

trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issue for review:

I. Whether the lower court abused its discretion and committed 

an error of law in determining that Appellant is incompetent and 

in appointing a guardian of the person and a guardian of the 

estate?
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Appellant’s Brief, p. 6 (all capitals removed). 

“The appointment of a guardian lies within the discretion of the trial 

court and will be overturned only upon an abuse of discretion.” In re 

Duran, 769 A.2d 497, 506 (Pa.Super.2001) (citing Estate of Haertsch,

649 A.2d 719, 720 (Pa.Super.1994)). This Court will find an abuse of 

discretion only where “the trial court has rendered a judgment that is 

manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, 

or was motivated by partiality, prejudice, bias, or ill will.” Id. (quoting 

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.2000)).

An “‘[i]ncapacitated 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. A court may appoint a 

guardian “only ‘[u]pon a finding that the person is partially incapacitated and

in need of guardianship services,’” or “upon a finding that the person is 

totally incapacitated and in need of plenary guardianship services[.]” In re 

Peery, 727 A.2d 539, 540 (Pa.1999) (citing 20 Pa.C.S. § 5512.1(b)-(c)) 

(emphasis deleted). A person is presumed to be mentally competent and a 

petitioner seeking guardianship must establish incapacity by clear and 

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

“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 
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preponderating and points unerringly to mental incompetency.” Id. (quoting 

In Re Myers' Estate, 150 A.2d 525, 527 (Pa.1959)). This Court has noted 

“[a] statute of this nature places a great power in the court. The court has 

the power to place total control of a person’s affairs in the hands of another. 

This great power creates the opportunity for great abuse.” Id. (quoting 

Estate of Haertsch, 609 A.2d 1384, 1386 (Pa.Super.1992)).

Appellant challenges the weight of the evidence. See Appellant’s 

Brief, pp. 10-17. In short, Appellant claims Dr. Susan Ingram provided the 

only medical testimony, that she testified Mr. Coleman was capable of 

looking after himself with a little help 6-8 hours a day, and that the trial 

court ignored this evidence without satisfactorily explaining its reasons in the 

decree or the 1925(a) Opinion.1 Id. Appellant is incorrect.

The trial court considered Dr. Ingram’s testimony and discussed it in 

its opinion. See 1925(a) Opinion, pp. 6-7. The trial court ultimately 

determined: 

Little weight was accorded to the testimony of Dr. Ingram, who 

evaluated Mr. Coleman[.] . . . Dr. Ingram’s testimony was of 

little help or credibility; it was self-contradictory, confusing and 

unsubstantiated. She said Mr. Coleman had mild dementia and 

____________________________________________

1 Appellant also suggests that the trial court placed too much weight on its 

assessment of Appellant’s testimony. See Appellant’s Brief, p. 12. 

Appellant does not elaborate on this argument in his brief. Additionally, we 

may not substitute our judgment for that of the trial court, which had the 

opportunity to observe Appellant testify. See In re Hyman, 811 A.2d at 

609 (“[w]e will not substitute our judgment for that of the lower court 

absent a clear abuse of discretion [.]”).
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was prone to making errors and poor judgments, and she 

acknowledged she did not assess whether he could formulate 

decisions concerning his physical health and safety, yet she 

nonetheless concluded he could make a responsible decision 

regarding his medical and surgical treatment. She also admitted 

she did not assess whether he could live independently and did 

not assess him outside of her office, yet she concluded he could 

“properly function by himself.” And, finally, when asked whether 

she thought Mr. Coleman needed a guardian she replied “I can’t 

say. I didn’t evaluate anything other than the cognitive 

functioning with my testing.”

1925(a) Opinion, pp. 12-13.

Additionally, Appellant incorrectly suggests that Dr. Ingram provided 

the only medical testimony in this matter. This allegation completely ignores 

the November 22, 2013 testimony of Dr. Todd Holbrook, which the trial 

court considered and discussed. See 1925(a) Opinion, pp. 3-5. The trial 

court summarized Dr. Holbrook’s testimony as to Mr. Coleman as follows:

With regard to Mr. Coleman, Dr. Holbrook, a medical doctor who 

is Board-certified in family medicine, testified he had treated Mr. 

Coleman since July 17, 2013, and last saw him on October 17, 

2013. N.T. 11/22/13 at 22. He diagnosed Mr. Coleman as 

having a super nuclear palsy, a progressive disease with 

Parkinson-like symptoms. Id. He said Mr. Coleman became 

agitated and angry quickly; could not formulate reasonable 

decisions with regard to his health, safety, financial transactions, 

or medical needs, including giving informed consent for a 

medical or surgical procedure; could be taken advantage of by 

unscrupulous persons; could not take his medications safely; 

and had poor memory. Id. at 22-26. He also said Mr. and Mrs. 

Coleman engage in a lot of yelling with each other and do not 

quite understand the full severity of their medical condition or 

problems. Id. at 23. When presented with the statutory 

definition of an incapacitated person, Dr. Holbrook believed Mr. 

Coleman met that definition and probably required placement in 

a nursing center or, at a minimum, an assisted living facility. 

Id. at 26-27.
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1925(a) Opinion, p. 4.

In addition to this medical testimony, the trial court considered the 

testimony of the court-appointed guardian, Attorney Roth, and Appellant 

himself in rendering its decision. In the trial court’s eyes, the testimony of 

both Attorney Roth and Appellant supported its conclusion that Appellant 

requires a guardian. This Court will not substitute its judgment for the lower 

court. See In re Hyman, 811 A.2d at 609 (“[w]e will not substitute our 

judgment for that of the lower court absent a clear abuse of discretion [.]”).

Decree affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/30/2015