J-S34004-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF THE ESTATE OF: 

L.E.K.

APPEAL OF: L.E.K.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 576 WDA 2022

Appeal from the Decree Entered April 18, 2022

In the Court of Common Pleas of Bedford County Orphans' Court at 

No(s): 2022-00008

BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY DUBOW, J.: FILED: NOVEMBER 16, 2022

Appellant, L.E.K., appeals from the April 18, 2022 Order entered in the 

Bedford County Court of Common Pleas that adjudicated him incapacitated 

and appointed a plenary guardian of his person and estate. Appellant 

challenges, inter alia, the sufficiency of the evidence. Upon review, we affirm. 

Appellant is 65 years old and has been diagnosed with Parkinson’s 

Disease. Appellant lives by himself and, until recently, was receiving home 

services from the Huntington-Bedford-Fulton Area Agency on Aging (“the 

Agency”). In the summer of 2021, Appellant was hospitalized after several

episodes where he displayed “paranoid delusional” behavior and contacted 

state police concerned that someone was robbing him. N.T. Hearing, 4/14/22, 

at 19. Appellant was admitted to Maybrook Hills Nursing Facility. On February 

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* Retired Senior Judge assigned to the Superior Court.
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8, 2022, the Agency filed a Petition for Adjudication of Incapacity and 

Appointment of Plenary Guardian after receiving information from in-home 

service providers that it was not safe to send Appellant home, as well as a 

written statement on January 5, 2022, from Appellant’s treating physician, Dr. 

Carl Werne, stating that he would testify to Appellant’s incompetence. In the 

petition, the Agency alleged that Appellant suffers from Parkinson’s Disease

and altered mental status, which cause him to need significant support in his 

daily living, including twenty-four-hour care and supervision. The Agency also 

attached Dr. Werne’s written statement. On February 9, 2022, the trial court 

appointed Karen S. Hendershot, Esquire, to represent Appellant. On March 

29, 2022, and March 30, 2022, Catherine S. Spayd, Ph.D., P.C., conducted a 

psychological evaluation of Appellant. 

On April 14, 2022, the trial court held a guardianship hearing. Appellant 

was present at the hearing with Attorney Hendershot. The trial court heard 

testimony from Dr. Spayd and Jim Rose, co-manager of the Agency.

In sum, Dr. Spayd testified as an expert in ascertaining a patient’s 

current level of cognitive functioning. She explained that she meets with 

patients for two separate sessions to get a better clinical sample of behavior, 

and to account for instances where a patient is simply having a bad day. Dr. 

Spayd explained that she conducted a clinical interview, obtained background 

information from the Agency, and reviewed Appellant’s medications and 

diagnoses. 
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Dr. Spayd also conducted various tests to measure Appellant’s cognitive 

functioning, including the Folstein Mini Mental State Examination; Mattis 

Dementia Rating Scare; Trail Making Test that measures attention and mental 

flexibility and sequencing; California Verbal Learning Test that measures 

verbal recall and learning; Boston Naming Test that measures naming 

abilities; F-A-S Verbal Fluency Test; Boston Diagnostic Aphasia Evaluation 

Complex Ideation sub-test; Wechsler Adult Cognitive Scale; and a Clock 

Drawing Test that measures non-verbal problem-solving skills. 

Dr. Spayd testified that Appellant demonstrated average functioning in 

various areas but had average to severely impaired attention; mildly clinically 

impaired non-verbal problem solving and verbal initiation skills; moderate 

impairment in the areas of receptive language; and moderate to severely 

impaired abstraction and mental flexibility and sequencing ability. Dr. Spayd 

testified that she diagnosed Appellant with dementia secondary to his 

Parkinson’s Disease and concluded: 

[Appellant] is unable to make effective life decisions on his own 

due to cognitive deficits. And, therefore, because he had not 

established power of attorney [] previously, a plenary 

guardianship would be clinically indicated. . . Due to his cognitive 

deficits, I recommend twenty-four-hour supervision and 

assistance with his daily care. 

N.T. Hearing at 12. Finally, Dr. Spayd explained that “a Parkinson’s based 

dementia presents differently than, for example, Alzheimer’s based dementia, 

which tends to be more apparent to the casual observer. . . . So on a basic 

level to [a] observer, yes, I think he would appear mostly intact.” Id. at 15. 
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In her expert report, which the Agency entered into evidence, Dr. Spayd 

made the following relevant treatment recommendations:

2. Given his currently identified moderate level of neurocognitive disorder, [Appellant] is assessed to currently be 

incapable of making good life decisions. Specifically, test 

results suggest he is currently unable to consistently attend 

to, to recall, or to effectively comprehend information 

needed to make important life decisions, to effectively 

problem solve or to think abstractly regarding such 

decisions, nor to initiate action upon them. Because the 

patient has not previously established [Power of Attorney]

documents, plenary guardianship of both person and estate 

is thus clinically indicated at this time. 

3. Given the current severity level of [Appellant]’s identified 

cognitive deficits, 24-hour supervision of and assistance 

with his daily activities are clinically indicated at this time, 

to assure he accurately takes medications, completes 

medical appointments and procedures, receives consistent 

nutrition, safely manages appliances, is protected financially 

from potential designing persons, and can be assisted in 

possible emergency situations. This level of care could be 

provided by 24-hour caregivers in his home, or by continued 

placement in a long-term residential setting. 

Petitioner’s Ex. 1, Psychological Evaluation, at 6. 

Mr. Rose, who has been employed by the Agency for six years and 

working with Appellant since August 2021, testified to the above events. 

Additionally, Mr. Rose testified that Appellant “needs maximum assistance for 

his medications” and the assistance of one or two individuals to perform daily 

activities. N.T. Hearing at 22. Mr. Rose stated that Appellant is “taking care 

of his own finances” and “deals with a credit union in California.” Id. at 23. 

Finally, Mr. Rose testified that he has helped Appellant with some minor 

financial issues, but Appellant has “tried to stay diligent in trying to pay taxes. 
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He even called at the beginning of the year to get certified checks to try to 

pay his local taxes.” Id. at 24. Mr. Rose was unaware if the taxes were 

actually paid. 

At the conclusion of the hearing, the trial court adjudicated Appellant 

incapacitated and appointed 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 issues for our review:

1. Did the lower court have jurisdiction of the person of the 

alleged incapacitated person?

2. Was there presentation of clear and convincing evidence 

sufficient for a finding that the ability of the alleged 

incapacitated person to receive and evaluate information 

effectively and communicate decisions in any way was impaired 

to such a significant extent that he was totally unable to 

manage his financial resources or to meet essential 

requirements for his physical health and safety?

3. Did various shortcomings in the proceedings deny the alleged 

incapacitated person his basic rights to due process of law?

Appellant’s Br. at 5. 

A.

It is well-settled that “[t]he findings of a judge of the orphans’ court 

division, sitting without a jury, must be accorded the same weight and effect 

as the verdict of a jury, and will not be reversed by an appellate court in the 

absence of an abuse of discretion or a lack of evidentiary support.” In re

Jackson, 174 A.3d 14, 23 (Pa. Super. 2017) (citation omitted). “This rule is 
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particularly applicable to findings of fact which are predicated upon the 

credibility of the witnesses, whom the judge has had the opportunity to hear 

and observe, and upon the weight given to their testimony.” Id. (citation 

omitted). This Court’s “task is to ensure that the record is free from legal 

error and to determine if the [o]rphans’ [c]ourt’s findings are supported by 

competent and adequate evidence and are not predicated upon capricious 

disbelief of competent and credible evidence.” Id. (citation omitted)

Consequently, “[o]ur 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.” In re Hyman, 811 

A.2d 605, 608 (Pa. Super. 2002). “An abuse of discretion exists when 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.” Harman ex rel. Harman v. Borah, 756 A.2d

1116, 1123 (Pa. 2000). Notably, for an appellant to establish an abuse of 

discretion, it “is not sufficient to persuade the appellate court that it might 

have reached a different conclusion under the same factual situation.” 

Fancsali v. Univ. Health Ctr. of Pittsburgh, 761 A.2d 1159, 1162 (Pa.

2000).

Under Pennsylvania law, an incapacitated person is “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 
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or totally unable to manage his financial resources or to meet essential 

requirements for his physical health and safety.” 20 Pa.C.S. § 5501. “The 

court, upon petition and hearing and upon the presentation of clear and 

convincing evidence, may find a person domiciled in the Commonwealth to be 

incapacitated and appoint a guardian or guardians of his person or estate.” 

20 Pa.C.S. § 5511(a). 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, 150 A.2d 525, 526 (Pa. 1959). We have 

explained that “[t]he standard of clear and convincing evidence is defined as 

testimony that is so clear, direct, weighty and convincing as to enable the trier 

of fact to come to a clear conviction, without hesitance, of the truth of the 

precise facts in issue.” In re R.N.J., 985 A.2d 273, 276 (Pa. Super. 2009) 

(citation and internal quotation marks omitted).

Further, when making a determination of incapacity, the court shall 

consider and make specific findings of fact concerning:

(1) The nature of any condition or disability which impairs the 

individual’s capacity to make and communicate decisions.

(2) The extent of the individual’s capacity to make and 

communicate decisions.

(3) The need for guardianship services, if any, in light of such 

factors as the availability of family, friends and other supports to

assist the individual in making decisions and in light of the 

existence, if any, of advance directives such as durable powers of 

attorney or trusts.

(4) The type of guardian, limited or plenary, of the person or 

estate needed based on the nature of any condition or disability 

and the capacity to make and communicate decisions.
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(5) The duration of the guardianship.

(6) The court shall prefer limited guardianship.

20 Pa.C.S. § 5512.1(a).

B.

In his first issue, Appellant avers, for the first time on appeal, that the 

trial court did not have personal jurisdiction over him. Appellant’s Br. at 10. 

Appellant argues that the record is devoid of evidence that the Agency 

personally served the adjudication of incapacity petition on Appellant as 

required by 20 Pa.C.S. § 5511(a) and Pa.O.C. Rule 14.2(f), which both require

written notice of the petition and hearing to be personally served on the 

alleged incapacitated person at least 20 days before the hearing. Id.

Appellant also argues that the Agency failed to present the citation and proof 

of service at the hearing as required by Pa.O.C. Rule 14.6(a). Id. Therefore, 

Appellant contends, the trial court never had jurisdiction of his person and the 

final decree is void for lack of jurisdiction. Upon review, Appellant has waived 

these challenges.

“Personal jurisdiction is a court's power to bring a person into its 

adjudicative process.” Grimm v. Grimm, 149 A.3d 77, 83 (Pa. Super. 2016)

(internal quotation marks and citation omitted). “Jurisdiction of the person 

may be obtained through consent, waiver or proper service of process.” 

Fleehr v. Mummert, 857 A.2d 683, 685 (Pa. Super. 2004). One can waive 

service of process by various means, including a voluntary appearance in 

court. Id. See also Hicks’ Estate, 199 A.2d 283, 285 (Pa. 1964) (explaining 
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that a court cannot establish personal jurisdiction “[u]nless the court has the 

parties before it, by appearance or service of process”). A party demonstrates

an intent to submit to the court's jurisdiction when the party takes some action 

pertaining to the merits of the case, thus evidencing an intent to forego 

objection to any defective service. Fleehr, 857 A.2d at 685.

Furthermore, it is axiomatic that issues which are not raised in the trial 

court are waived and cannot be raised for the first time on appeal to this Court.

Pa.R.A.P. 302(a). The failure to challenge personal jurisdiction constitutes 

waiver of that defense. Wagner v. Wagner, 768 A.2d 1112, 1119 (Pa.

2001). “This Court has long held that questions of personal jurisdiction must 

be raised at the first reasonable opportunity or they are lost.” Manack v.

Sandlin, 812 A.2d 676, 683 (Pa. Super. 2002)

Instantly, Appellant appeared in court and participated in the hearing, 

thereby waiving any objection to personal jurisdiction. Additionally, Appellant 

failed to raise any challenge regarding personal jurisdiction, service of 

process, or compliance with Section 5511 or Rules 14.2 and 14.6 at the trial 

court level. Accordingly, Appellant has failed to preserve these challenges for 

our review.

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1 Appellant also argues, for the first time in his brief, that the Agency failed to 

comply with the jurisdictional procedural provisions of the Probate, Estates, 

and Fiduciaries Code, specifically 20 Pa.C.S. §§ 764-766, which, inter alia, 

require a party in interest to obtain personal jurisdiction by serving a citation. 

Appellant’s Br. at 14. Appellant failed to include this challenge in his Rule 

1925(b) statement and, thus, failed to preserve this issue for our review. See

(Footnote Continued Next Page)
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C.

In his second issue, Appellant avers that the Agency did not present 

clear and convincing evidence that Appellant was totally incapacitated and 

that the appointment of a plenary guardian of his person and estate was the 

least restrictive alternative. Appellant’s Br. at 19. Appellant argues that Dr. 

Spayd’s testimony “leaps from a factual predicate of findings of moderate to 

severe impairment in some cognitive domains to a conclusion that plenary 

guardianship of both person and estate is the only clinically indicated result.” 

Id. at 23 (emphasis added). Additionally, Appellant argues that the trial court 

should have considered Mr. Rose’s testimony that Appellant was able to take 

care of his own finances. Id. at 21. Essentially, Appellant is challenging the 

weight of the evidence. 

Instantly, the trial court placed little weight on Mr. Rose’s testimony that 

Appellant was able to contact his credit union and had tried to pay his taxes, 

emphasizing that “it is unknown whether those taxes were paid,” and placed 

greater weight on Dr. Spayd’s uncontradicted expert testimony and report. 

Trial Ct. Op., filed 6/13/22, at 18-19. The trial court emphasized Dr. Spayd’s 

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Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are 

waived”). Moreover, as discussed above, Appellant waived any challenge to 

personal jurisdiction when he appeared in court and participated in the 

hearing. 

Appellant further argues, for the first time in his brief, that it is unclear 

whether the trial court appointed Attorney Hendershot to serve as a guardian 

ad litem (“GAL”), an attorney, or both. Appellant’s Br. at 15-18. Appellant 

likewise failed to include this issue in his Rule 1925(b) statement and the issue 

is, thus, waived. See Pa.R.A.P. 1925(b)(4)(vii).
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conclusions in her expert report that Appellant is “currently unable to 

consistently attend to, to recall, or to effectively comprehend information 

needed to make important life decisions [or] to initiate action upon them.” 

Id. at 19 (quoting Petitioner’s Ex. 1, Psychological Report, at 6.) 

Moreover, the trial court credited Dr. Spayd’s uncontradicted expert 

testimony that Appellant is suffering from dementia secondary to Parkinson’s 

Disease and her expert opinion that Appellant needs a plenary guardian of his 

person and estate. The trial court opined:

Based upon the expert testimony of Dr. Spayd, as well as the 

written report entered as evidence at the hearing, this [c]ourt 

found by clear and convincing evidence, that [Appellant] suffers 

from a condition that totally impairs his capacity to receive and 

evaluate information effectively and to make and communicate 

decisions concerning his management of financial affairs or to 

meet essential requirements for his physical health and safety. As 

there were no family members or friends who were willing to serve 

as plenary guardian of the person and estate of [Appellant]. 

Id.at 18. The trial court’s findings are supported in the record. We decline 

to usurp the trial court’s credibility determinations or reweigh the evidence. 

Accordingly, we find no abuse of discretion.

D.

In his third and final issue, Appellant avers that various shortcomings in 

the proceedings amounted to a denial of his right to due process of law, which 

is guaranteed to him by the 14th Amendment to the Constitution. Appellant’s 

Br. at 24. Appellant avers, “in essence, this claim is that this poor guy got 

the bum’s rush.” Id. at 25. 
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To support his claim, Appellant reiterates his arguments that the Agency 

failed to comply with Pa.O.C. Rule 14.2, that the Agency failed to perfect 

proper service on Appellant, and that Attorney Hendershot served as a GAL 

rather than an attorney. As explained above, all of these challenges are 

waived. Essentially, Appellant attempts to resurrect several waived claims of 

error into an overarching due process claim of error. Appellant fails to provide 

this Court with any relevant legal authority to support this broad claim. 

Accordingly, Appellant is not entitled to relief on this issue.

E.

In conclusion, Appellant’s personal jurisdiction and due process claims 

of errors are waived. The record supports the trial court’s conclusion that 

Appellant is incapacitated and in need of a plenary guardian of his person and 

estate. Accordingly, we find no abuse of discretion.

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2022