[J-59-2018]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
MONICA GAVIN AND LUCIA CAREZANI, : No. 74 MAP 2017
EXECUTRIX OF THE ESTATE OF JAMES :
GAVIN, DECEASED, : Appeal from the Order of the Superior
: Court dated May 1, 2017 at No. 341
Appellants : EDA 2016 Affirming the Judgment of
: the Lehigh County Court of Common
: Pleas, Civil Division, entered March 11,
v. : 2016 at No. 2014-C-0914
:
:
ELAINE LOEFFELBEIN, :
: SUBMITTED: September 7, 2018
Appellee :
OPINION
JUSTICE DONOHUE DECIDED: March 26, 2019
The issues presented for review in this civil tort action implicate various
provisions of chapter 55 of Pennsylvania’s Probate Estates and Fiduciaries Code (the
“Code”).1 In particular, this appeal addresses the meaning and effect of section 5513 of
the Code, which relates to the appointment of emergency guardians. Given its
centrality to the resolution of this case, we begin by setting forth the pertinent portion of
the provision:
Notwithstanding the provisions of section 5511 (relating to
petition and hearing; independent evaluation), the court,
upon petition and a hearing at which clear and convincing
1 20 Pa.C.S. §§ 5501-5555 relating to incapacitated persons.
evidence is shown, may appoint an emergency guardian or
guardians of the person or estate of a person alleged to be
incapacitated, when it appears that the person lacks
capacity, is in need of a guardian and a failure to make such
appointment will result in irreparable harm to the person or
estate of the alleged incapacitated person. The provisions of
section 5511, including those relating to counsel, shall be
applicable to such proceedings, except when the court has
found that it is not feasible in the circumstances. An
emergency guardian so appointed for the person or estate of
an alleged incapacitated person shall only have and be
subject to such powers, duties and liabilities and serve for
such time as the court shall direct in its decree.
20 Pa.C.S. § 5513.2 In addition, an emergency order appointing an emergency
guardian of the person
may be in effect for up to [seventy-two] hours. If the
emergency continues, then the emergency order may be
extended for no more than [twenty] days from the expiration
of the initial emergency order. After expiration of the
emergency order or any extension, a full guardianship
proceeding must be initiated pursuant to section 5511.
Id. By contrast, “[a]n emergency order appointing an emergency guardian of the estate
shall not exceed [thirty] days. After [thirty] days, a full guardianship proceeding must be
initiated pursuant to section 5511.” Id. (hereinafter, the “Termination Provisions”).3
2 The General Assembly amended the Code in 1992 to add the emergency
guardianship provision. See Act of Apr. 16, 1992, P.L. 108. Prior thereto, the Code
included a temporary guardianship provision that did not require clear and convincing
evidence or a finding that the individual appeared to lack capacity and was in need of a
guardian. See 20 Pa.C.S. § 5513 (1972) (amended effective July 1, 1992). The only
requirement for appointing a temporary guardian was a showing of “good cause” that “a
failure to make such appointment will result in irreparable harm to the person or estate
of the alleged incompetent.” Id.
3 As referenced in section 5513 and discussed in more detail herein, section 5511 of
the Code establishes requirements related to a full guardianship proceeding. Pursuant
to section 5511(a), a court may, upon a petition and hearing and upon clear and
convincing evidence, find an alleged incapacitated person “to be incapacitated” and
appoint a guardian or guardians. 20 Pa.C.S. § 5511(a). A petitioner must provide
(continued…)
[J-59-2018] - 2
Based on the foregoing language, the Superior Court held that an emergency
order for a guardianship of an estate automatically expires after thirty days. Gavin v.
Loeffelbein, 161 A.3d 340, 349-50 (Pa. Super. 2017). The parties did not challenge the
vitality of the emergency guardianship in the trial court. Nor did either party raise any
claim before the Superior Court regarding the termination of the guardianship order or
the appropriate interpretation of the Termination Provisions. In addressing an issue
actually raised on appeal, the Superior Court further held that an individual subject to
emergency guardianship is not incapacitated and is not precluded from making
decisions about his property even when his guardian has been ordered by the court to
do so on his behalf.
Id. at 351.
We granted allocatur to address the propriety of both of these determinations.
For the reasons that follow, we vacate the Superior Court’s decision and remand for
proceedings consistent with this Opinion.
The relevant background of this litigation follows. Appellant, Monica Gavin,
brought an action alleging trespass, conversion, negligence and punitive damages
against Appellee, Elaine Loeffelbein, the sister of Appellant’s estranged spouse, James
(…continued)
written notice of the petition and hearing in large type and simple language to the
alleged incapacitated person. Id. The notice must indicate, inter alia, the purpose and
seriousness of the proceeding as well as the rights the alleged incapacitated person
may lose as a result. It must also contain information regarding the alleged
incapacitated person’s rights, including his right to counsel.
Id. Notably, section 5511
requires that the petition be served personally upon the alleged incapacitated person
“no less than [twenty] days in advance of the hearing.”
Id. Subsection (d) allows the
court to order an independent evaluation, either on its own motion or upon petition by
the alleged incapacitated person. Such independent evaluation must meet the
requirements related to evidence of incapacity set forth in section 5518.
Id., § 5511(d).
Finally, as pertinent here, subsection (e) sets forth the required contents of a
guardianship petition. Id., § 5511(e).
[J-59-2018] - 3
Gavin (“James”). The gravamen of the underlying dispute was that, despite the
appointment on May 24, 2012 of an emergency guardian of James’ estate, Appellee,
accompanied by James, entered the couple’s former marital residence (hereinafter,
“FMR”) on July 9, 2012 and removed certain memorabilia that James wanted to protect
from dissipation and pass on to his children.4 Id. at 344. When Appellee contacted
James’ emergency guardian, Laurie Dart Schnaufer (“Schnaufer”), in early July and
asked if she could enter the FMR herself to secure the memorabilia, Schnaufer refused
her request, indicating that she would take care of it. Trial Court Opinion, 1/5/2016, at
2. In addition, when Appellee attempted to contact Schnaufer on July 9, she was
unsuccessful. Thus, according to Appellant, Appellee acted without the consent or
participation of Schnaufer, and therefore without any valid consent, because James,
being incapacitated, was legally incapable of providing it.
At the time of the alleged torts, Appellant lived in the FMR with their children,
while James resided at an independent living facility called Above and Beyond, having
been moved there on May 25, 2012 by Schnaufer. Id. At all relevant times, Appellant
and James were in the midst of a contested divorce. 5
4Appellant alleged that 296 items of memorabilia, with an estimated value of $236,161,
were missing as a result of Appellee’s tortious conduct.
5 In an amended complaint, Appellant added James as a plaintiff due to his marital
interest in the memorabilia. Gavin, 161 A.3d at 345-46. She identified James as an
incapacitated person represented by his guardian at the time of the complaint, Susan
Maurer (“Maurer”).
Id. Over Maurer’s objections, the trial court sustained James’
joinder as plaintiff. When James died in January 2015 during the course of this
litigation, the executor of his estate was substituted for him.
Id. at 346. Because
Monica Gavin initiated the civil action and filed the appeal, the term Appellant herein
refers to her alone.
(continued…)
[J-59-2018] - 4
The proceeding that led to the appointment of Schnaufer as James’ emergency
guardian occurred on May 24, 2012 in the Lehigh County Court of Common Pleas (the
“orphans’ court”). James’ divorce attorney, Gerald Barr (“Barr”), filed the petition for
appointment of a guardian on May 16, 2012. Order Appointing Emergency Guardians,
5/24/2012, at 1. Following the section 5513 hearing, the orphans’ court issued an
emergency order in which it made the following findings:
1. The alleged incapacitated person’s ability to receive and
evaluate information effectively is significantly impaired and
his ability to communicate reasonable decisions is impaired
thereby.
[2.] The alleged incapacitated person is in need of a
guardian of the person and a guardian of the estate pending
a full hearing on the merits of a petition under § 5511 of the
[Code].
[3.] The failure to make appointments of emergency
guardians will result in irreparable harm to the person and
estate of the alleged incapacitated person.
Id. Next, the order set forth Schnaufer’s duties and responsibilities as emergency
guardian. Specifically, as emergency guardian of James’ estate, the order afforded to
Schnaufer the “powers, duties and responsibilities … to ascertain, assemble and
administer” all of James’ property and “to identify and ascertain the nature, extent and
whereabouts of” all property co-owned by James and another person, including property
that was conveyed by or on behalf of James in the last year. Id. at 2. The order also
(…continued)
In a filing dated August 28, 2018, Appellee’s attorney informed this Court that (1)
Appellee died on August 8, 2018 and (2) no estate has been opened with respect to her
death. Suggestion of Death, 8/28/2018. We thereafter informed the parties that we
would decide the appeal on the submitted briefs.
[J-59-2018] - 5
gave Schnaufer authority to make decisions on James’ behalf relating to his pending
divorce. Id.6
Finally, the order expressed that both emergency guardians would continue to
serve until the “conclusion of a full hearing” under section 5511 of the Code, the
petition for which “shall be filed … within [thirty] days of the date of this Order.”
Id. (emphasis added). The civil docket indicates that a section 5511 petition for the
appointment of a permanent guardian of the person and estate was filed seven days
later, on May 31, 2012. The full section 5511 hearing was scheduled for August 20,
2012. At the conclusion of that hearing, the orphans’ court found James to be
incapacitated and “in need of plenary guardianship services.” Decree, 8/21/2012, at 1.7
The trial judge who presided over the civil tort action was the same judge who,
sitting in the orphans’ court, issued the emergency and permanent guardianship orders.
Throughout the life of this case in the trial court, including a full jury trial, the parties
litigated the issues with the understanding, shared by the trial judge, that the emergency
order appointing Schnaufer as guardian of James’ estate was in effect at the time of
Appellee’s allegedly tortious conduct. At no point during trial, in post-trial motions or in
6 In addition, the order appointed Schnaufer as emergency guardian of James’ person.
In this regard, the court directed Schnaufer to “assure that arrangements for [James’]
care, maintenance and safety are adequate and that his needs are being met, including,
specifically placing him in an appropriate living facility such as Above and Beyond; and
to authorize such medical treatments as are deemed necessary and advisable.” Order
Appointing Emergency Guardians, 5/24/2012, at 2. As noted supra, James moved into
Above and Beyond the following day.
7 The orphans’ court appointed Appellee as plenary guardian of James’ person and
estate. Decree, 8/21/2012, at 1. Appellee’s appointment as guardian of the estate was
terminated on November 15, 2013 when the orphans’ court appointed Maurer to take
over this role.
[J-59-2018] - 6
the parties’ briefs on appeal to the Superior Court was any issue raised about the
continued validity, on July 9, 2012, of the emergency order.
Following closing arguments, the trial court instructed the jury regarding the
relevant legal standards it must apply. Regarding conversion, the trial court explained:
Conversion essentially requires proof that [Appellee]
interfered without lawful justification, with [Appellant’s] right
of property in a particular asset. Showing that [Appellee]
acted without lawful justification is an element of the prima
facie case of conversion on which [Appellant] bears the
burden of proof. Lawful justification is not an affirmative
defense.
N.T., 6/12/2015, at 973.
The trial court also instructed the jury regarding James’ capacity to consent. Id.
at 964. The court read sections 5501 and 5502 of the Code directly to the jury. Section
5501 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. Section 5502 sets forth the purpose of the Code, emphasizing, inter alia, that it is
designed “to promote the general welfare of all citizens by establishing a system which
permits incapacitated persons to participate as fully as possible in all decisions which
affect them.” Id., § 5502. The trial court also read part of section 5513 to the jury.8
N.T., 6/12/2015, at 966. Next, the trial court recited portions of the May 24, 2012 order
appointing James’ emergency guardians.
8 Apparently deeming them irrelevant to the case, the trial court omitted the
Termination Provisions from its recitation of section 5513. Id.
[J-59-2018] - 7
Finally, the trial court instructed the jury:
Now, an emergency guardian of the person and of the
[e]state -- emergency guardians are temporary. And as you
may have noted, the appointment was subject to a full
hearing on the merits of a petition under [section 5511].
That [section 5511] hearing, which was held on August [20],
2012, at which time I determined that [James] was indeed
incapacitated, and I adjudicated him incapacitated. With
respect to the emergency guardian of the person[, it] was
limited to placement, and to make medical decisions. And
the emergency guardian of the [e]state was for the powers
that I mentioned, in terms of -- including other things --
assembling [James’] personal property. The power to the
emergency guardian of the person is not exclusive to the
guardian; that is to say, that [James] was not precluded from
expressing his wishes, and making some decisions
regarding his personal property.
Id. at 969. Appellant objected to this jury charge. During deliberation, the jury asked to
hear the “rules/laws around capacity” and the court’s emergency guardianship order
again. The trial court repeated the foregoing instructions but this time concluded by
stating that “the appointment of the emergency guardian of the [e]state was not an
exclusive power to the guardian -- to the emergency guardian of the [e]state. [James]
was not precluded from expressing his wishes, and making some decisions with respect
to his personal property.” Id. at 1004 (emphasis added). At the conclusion of trial, the
jury returned a verdict in Appellee’s favor on the conversion and negligence claims. Id.9
Appellant filed a post-trial motion seeking judgment notwithstanding the verdict
or, in the alternative, a new trial. She argued, as pertinent to this appeal, that the jury
instructions relating to “the effect of James’ incapacity and appointment of a temporary
guardian” and conversion “were incorrect on matters of law or so incomplete as to be
9 The trial court had previously granted Appellee’s request for a nonsuit on the trespass
and punitive damages claims. Gavin, 161 A.3d at 347.
[J-59-2018] - 8
misleading.” Trial Court Opinion, 1/5/2016, at 5. She further argued that the trial court
had erred in granting a nonsuit as to her trespass claim. The trial court concluded that
there was no basis for relief. Acknowledging that Appellant’s theory of the case hinged
on James’ legal inability to consent to Appellee’s entry into and removal of items from
the FMR, the trial court explained that the May 24, 2012 emergency order was not an
adjudication of incapacity. Id. at 5-6. Rather, “James was found to be allegedly
incapacitated and he appeared to lack capacity.” Id. at 6 (emphasis in original).
Notwithstanding the fact that the emergency order “entrusted the guardian with
‘the powers, duties and responsibilities: to ascertain, assemble and administer all of the
property owned by James’,” the trial court indicated that the guardian’s authority did not
necessarily exclude James from making decisions about his property. Id. at 7. Citing
sections 5501, 5502 and 5521 of the Code, the trial court extrapolated that because the
Code encourages incapacitated persons “to participate as fully as possible in all
decisions which affect them,” that charge logically applies with even more force to
individuals who only appear to lack capacity. Id. Thus, rather than instructing the jury
that James was legally incapable of giving consent, as Appellant had requested, the trial
court allowed the jury to determine whether James in fact had sufficient decision-making
capacity on July 9. Id. at 8. In light of the testimony adduced at trial, the trial court
concluded that the jury had reason to find that James had capacity and, accordingly,
that Appellant had not shown that Appellee “acted without lawful justification.” Id. at 9.
Appellant timely filed an appeal to the Superior Court. As pertinent here,
Appellant challenged the propriety of the jury charge related to James’ capacity as well
as the trial court’s decision to grant a nonsuit as to her trespass claim. Specifically, she
[J-59-2018] - 9
claimed that by virtue of the emergency guardianship order, James was incapacitated
on July 9, 2012, and he was thus incapable of consenting to Appellee’s entry into the
FMR or to the removal of the memorabilia therefrom. Gavin, 161 A.3d at 348.
Appellant argued that the trial court therefore erroneously instructed the jury that it could
determine whether James had authorized Appellee’s actions on July 9, 2012.
Id.
In a published opinion, the Superior Court disagreed with Appellant’s position.
Before addressing the issues raised, however, the Superior Court, sua sponte, decided
that the appeal could be disposed of as a matter of law, as the emergency guardian
order was no longer valid at the time of the incident giving rise to the complaint.
Because “[a]n emergency order appointing an emergency guardian of the estate shall
not exceed [thirty] days,” the panel determined that the May 24, 2012 order appointing
Schnaufer necessarily expired on June 23, 2012, despite the fact that this argument had
not been raised, briefed, or addressed in any way. Id. at 349-50. Accordingly, the
Superior Court found that James was “sui juris”10 on July 9, 2012 when he and Appellee
entered the FMR and removed the memorabilia.
Id. at 350.
Although concluding that Appellant’s “position fail[ed] for this reason alone,” the
Superior Court nonetheless proceeded to address the propriety of the jury instruction on
capacity, acknowledging that it was a crucial issue at trial. Id. Assuming for the sake of
argument that the emergency order was in effect at all relevant times, the Superior
Court concluded that the May 24, 2012 emergency order “did not strip James of
complete input into the administration of his personal property” or of the ability to
10 Sui juris, as defined in Black’s Law Dictionary, means “of one’s own right;
independent; of full age and capacity; possessing full social and civil rights.” Black’s
Law Dictionary 1662 (10th ed. 2014).
[J-59-2018] - 10
consent to his sister’s actions. Id. In reaching its conclusion, the Superior Court
juxtaposed the language of section 5513 (providing, inter alia, that the court may
appoint guardians for “a person alleged to be incapacitated, when it appears that the
person lacks capacity”) with the language of section 5511 (providing, inter alia, that the
court “may find a person … to be incapacitated and appoint” guardians), noting that the
emergency order “was premised upon a finding that James allegedly appeared to be
incapacitated.”
Id. (emphasis in original). However, “he was not declared legally
incapacitated until a hearing was held under 20 Pa.C.S. § 5511(a).” Id. Thus, the
Superior Court determined that James was “presumptively competent” until the orphans’
court rendered its decision on August 21, 2012, that James was incapacitated.11 Id.
(noting further that the emergency order indicated that James’ neurologist had
determined he was “significantly impaired,” not incapacitated).
Regarding whether James in fact had capacity on or about July 9, the Superior
Court observed:
James clearly conveyed to his neighbor and to [Appellee] his
concern with Appellant and her actions with respect to their
11 The Superior Court cited Estate of Haertsch, 609 A.2d 1384, 1386 (Pa. Super. 1992),
for the proposition that “mental capacity and competency are to be presumed and
before any person shall be deprived of the right to handle his or her own property and
manage his or her affairs there must be clear and convincing proof of mental
incompetency and such proof must be preponderating.”
Id. (quoting In re Myers’ Estate,
150 A.2d 525, 526 (Pa. 1956)). Haertsch did not involve a situation where an
emergency guardianship order had been entered. See id. at 1385. Although the
Superior Court did not expressly indicate that the guardianship order in Haertsch was
entered pursuant to section 5511, its description of the order makes clear that it was.
Id. (noting that the alleged incompetent’s parents, as co-guardians, would each have
custody for half the year). Moreover, at the time the guardianship order was entered in
Haertsch, section 5513, which authorized the appointment of a “temporary” guardian,
did not require clear and convincing evidence that the alleged incapacitated person
lacked capacity. See supra, note 2.
[J-59-2018] - 11
children. Likewise, he cogently articulated that he wanted
[the] children to have his memorabilia collection and that he
feared that [Appellant] might secret it from them. James
correctly informed [Appellee] that he had repeatedly asked
[Schnaufer], his emergency guardian of the estate, to gather
[the memorabilia] and remove it from [the FMR], but []
Schnaufer had not responded.
Id. Accordingly, because “James conveyed an awareness of: who he was, where he
lived, his co-ownership of the [FMR], who his children were, that he was estranged from
his wife, his ownership of a valuable collection of memorabilia, that he desired his
children to receive it, and that he had been appointed a guardian,” the panel concluded
that “James had the capacity to consent to entry into his house and to direct that the
collection be removed so he could protect it for” his children. Id. at 351 (noting that it
was Appellant’s own proof that demonstrated James’ capacity).
Finally, the Superior Court determined that the appointment of an emergency
guardian did not “strip[] James of all control over his property [or] abrogate[] his right to
any input as to its disposition.” Id. Citing to section 5502 of the Code, the panel
emphasized that “the purpose of [the Code is] to promote the general welfare of all
citizens by establishing a system which permits incapacitated persons to participate as
fully as possible in all decisions which affect them … .” Id. (quoting 20 Pa.C.S. § 5502)
(emphasis omitted). The panel interpreted this legislative purpose broadly as
authorizing an incapacitated person under the protection of a guardian to nonetheless
exercise “freedom and control over [his] physical and financial affairs.” Id. (citing In re
Rosengarten, 871 A.2d 1249, 1255 (Pa. Super. 2005)). Accordingly, the Superior Court
concluded that the trial court properly instructed the jury that James shared decision-
[J-59-2018] - 12
making authority with his emergency guardian over matters pertaining to his property.
Id.
The Superior Court affirmed the trial court’s entry of nonsuit as to the trespass
count as well. Id. at 355-56. The panel began by explaining that “[a] nonsuit is proper
only if the jury, viewing the evidence and all reasonable inferences arising from it in the
light most favorable to the plaintiffs, could not reasonably conclude that the elements of
the cause of action had been established.” Id. at 355. In this case, the Superior Court
found that Appellant could not succeed on her trespass cause of action because a “right
of entry constitutes an absolute defense.” Id. Reviewing the evidence of record, the
Superior Court concluded that “[Appellant’s] evidence proved that a co-owner of the
[FMR], James, consented to [Appellee]’s entry, and that consent abrogated [Appellant’s]
right to bring an action for trespass against [Appellee].” Id. at 356. In reaching its
conclusion, the panel rejected Appellant’s assertion that because James was
incapacitated, he could not authorize entry into his own home. Id. at 355. The panel
explained, again, that the May 24, 2012 order indicated James was impaired, not
incapacitated, and that in any event, the emergency order had expired on June 23,
2012 such that it had no impact on James’ ability to authorize entry into his home. Id. at
355-56.
The specific issues we agreed to review are whether “the Superior Court err[ed]
by holding that emergency guardianship orders automatically expire” and whether “the
Superior Court erred by holding that the rebuttable presumption that an incapacitated
person is unable to engage in financial transactions is inapplicable to a person under
[J-59-2018] - 13
the protection of an emergency guardian who has been appointed for the person and
his estate.” Gavin v. Loeffelbein, 174 A.3d 1028 (per curiam) (emphasis in original).
We begin by summarizing the parties’ arguments on the first issue. Appellant
observes that neither the trial judge nor the parties raised a question in the courts below
about the efficacy of the emergency order or the impact of the Termination Provisions.
Appellant’s Brief at 22 n.1. As to the merits of the Superior Court’s holding, she argues
that it is flawed for several reasons. First, she argues that if an emergency
guardianship order expires after thirty days, courts would be forced to hold permanent
guardianship hearings during an untenably narrow ten-day window. Id. at 23-27 (noting
section 5511’s requirement that a petitioner must serve the alleged incapacitated
person with notice “no less than twenty days in advance” of the full hearing). She
contends that this result violates the principle, affirmed by our Court, that the General
Assembly is not permitted to infringe on a purely judicial function such as the scheduling
of a hearing. Accordingly, she urges that we must interpret section 5513 as merely
directory. Id. at 23-27 (citing In re Nomination Papers of American Labor Party, 44 A.2d
48, 50 (Pa. 1945)).
Similarly, Appellant observes that the Superior Court’s interpretation of section
5513 leads to an absurd outcome by creating a gap in time between the expiration of an
emergency guardianship and the appointment of a permanent guardian, despite the
court having determined that “irreparable harm” will result in the absence of a guardian.
Id. at 28. Instead, and tracking the language of the emergency guardianship order
entered in this case, Appellant urges us to interpret the Termination Provisions to allow
an emergency guardian to remain in place until the completion of a section 5511
[J-59-2018] - 14
hearing so long as a petition initiating the latter has been filed within thirty days of the
emergency order. Id. at 29.
Finally, Appellant asks us to hold that an emergency order is valid per its own
terms unless an interested party challenges the validity of the order before the orphans’
court. Because no one (including James through his counsel) “filed an exception
against” the emergency order or challenged the scheduled date for the full guardianship
hearing, she posits that the order was necessarily valid on July 9, and continued until
the full hearing was completed. Id. at 29-30.
Appellee concedes that she never raised the thirty-day expiration issue at trial
and that neither the jury in rendering its verdict nor the trial court in deciding post-trial
motions relied on it. Appellee’s Brief at 8. Not surprisingly though, she urges this Court
to adopt the Superior Court’s holding. Specifically, she argues that the word “shall” in
the second to last sentence of section 5513 should be assigned its unambiguous
meaning. Id. at 13-15. She urges that “it is plain that the use of the word ‘shall’ is
mandatory and that the statute prohibits an emergency order which exceeds thirty
days.” Id. (citing Koken v. Reliance Insurance Company, 893 A.2d 70 (Pa. 2006)).
In response to Appellant’s position that we must read the Termination Provisions
as directory rather than mandatory, Appellee characterizes section 5513 as setting the
time within which a petition for full guardianship must be filed, which does not encroach
on a purely judicial function. The statute does not, according to Appellee, direct the
court to render a decision within a legislatively mandated time period. Rather, the
power to limit the time period a guardian may serve is inherent in the General
Assembly’s power to create substantive standards relating to the determination of
[J-59-2018] - 15
incapacity, which includes its power to authorize the appointment of guardians. Id. at
16.
Essentially conceding Appellant’s point that the General Assembly could not
have intended a gap in time between guardianships, Appellee posits that no gap in time
problem exists because the statute does not bar a court from entering interim
emergency orders. Id. at 18. She urges that an additional emergency hearing, while
inconvenient, would ensure that the “alleged incapacitated person is still in need of
emergency guardian services while he or she waits for an incapacity hearing.” Id. at 19.
In addition, Appellee suggests that the alternative to the Superior Court’s holding would
allow the emergency guardian to remain in place indefinitely, improperly infringing on
the rights of the allegedly incapacitated person who has not yet been afforded a full
hearing. Id. at 16, 20.
Because no one challenged the validity of the emergency guardianship order (or
the date of the full guardianship hearing) before the orphans’ court, we conclude that
the Superior Court erred in ruling on its validity. The parties and the trial court
presumed its validity. The Superior Court improperly reached a contrary conclusion by
sua sponte interpreting the Termination Provisions, absent advocacy from the parties or
an opinion from the trial court. Both at the time of Appellee’s allegedly tortious conduct,
and throughout the course of the jury trial sub judice, all interested parties, including
Appellee, believed that Schnaufer was still James’ emergency guardian on July 9. See
Trial Court Opinion, 1/5/2016, at 2. Whether the emergency order was valid was not
properly before the Superior Court, nor could it have been under the circumstances of
this case.
[J-59-2018] - 16
Section 5523 of the Code states that “no decree entered pursuant to this chapter
shall be subject to collateral attack on account of any irregularity if the court which
entered it had jurisdiction to do so.” 20 Pa.C.S. § 5523. The General Assembly plainly
intended that a perceived irregularity in a decree appointing an emergency guardian (or
in a related scheduling order) would be resolved in the first instance before the orphans’
court.12 Thus, even if Appellee had raised the invalidity of the emergency order as a
means of defending against this civil tort action, the orphans’ court was the proper
forum for the challenge. See id.; cf. In re Jones, 19 A.2d 280, 282 (Pa. 1941) (holding
that appellant could not collaterally attack the fact of her brother’s residency in Chester
County when this fact had previously provided the basis for the Chester County court to
hear her petition for the appointment of his guardian).
The Superior Court’s sua sponte interpretation of section 5513 as a means of
invalidating the order was improper. In light of these procedural irregularities, we vacate
the portion of the Superior Court’s opinion interpreting the Termination Provisions. We
proceed as the parties and the trial court did and presume that the emergency
guardianship order was in effect at all times relevant to this appeal.
Regarding the second issue before us, Appellant argues that James was
presumptively incapacitated pursuant to section 5513 and the emergency order. She
posits, however, that Appellee could have rebutted this presumption with clear and
12 A statutory prohibition on collateral attacks is eminently reasonable. As discussed in
more detail infra, the purpose of the Code, broadly speaking, is to protect the well-being
of incapacitated persons. See 20 Pa.C.S. § 5502. If a decree entered pursuant to the
Code can be called into question by litigants seeking only to vindicate their personal
interests in a separate proceeding, the integrity of the decree and the purpose of the
Code will be too easily undermined.
[J-59-2018] - 17
convincing evidence but failed to do so. By introducing the possibility that Appellee
could have rebutted the presumption of incapacity, Appellant attempts to tailor her
argument to counter the holding of the Superior Court that until James was adjudicated
incompetent at the full guardianship hearing, he was presumptively competent.13
In support of her position that a presumption of incapacity applies to individuals
under the protection of emergency guardians, Appellant posits that it is undisputed that
James was found to “lack capacity” pursuant to section 5513. In her view, there is no
appreciable distinction between a finding that an allegedly incapacitated person lacks
capacity and a determination that the allegedly incapacitated person is incapacitated, as
required by section 5511.
She points to the emergency order itself as proof that the orphans’ court
determined that James was incapacitated as a result of his section 5513 proceeding. In
this regard, she observes that the emergency order characterizes James’ capacity using
language that mirrors the statutory definition of “incapacitated person.”14 Appellant’s
13 Appellee urges us to conclude that Appellant waived the question of whether a
rebuttable presumption of incapacity applied to James. Appellee’s Brief at 21-23. We
decline to find the question waived. The question we agreed to review reflects a
disagreement between the parties about the effect of an emergency guardianship, as
compared to guardianship imposed following a full section 5511 proceeding, upon an
individual’s legal rights and decision-making authority. In the lower courts, Appellant
argued that a person subject to an emergency guardianship order is without capacity to
exercise those powers afforded to the guardian. See supra, pp. 8-10. The Superior
Court held that James was “presumptively competent” until he was adjudicated
incapacitated pursuant to section 5511. In this respect, the question of whether a
rebuttable presumption of incapacity applies to individuals subject to emergency
guardianship is fairly encompassed by, and premised upon, the position Appellant
advanced at trial and before the Superior Court. Therefore, it is preserved for our
review.
14 An incapacitated person is defined as “an adult whose ability to receive and evaluate
information effectively and communicate decisions in any way is impaired to such a
(continued…)
[J-59-2018] - 18
Brief at 35. In addition, the orphans’ court granted James’ emergency guardian
authority over all of his property, and recognized that irreparable harm would otherwise
result. Id. Thus, Appellant contends that we must presume the orphans’ court intended
to remove James’ authority over his property because, in light of his impaired state, he
was incapable of making decisions about it. Id.
Furthermore, Appellant contends that if an individual under the protection of an
emergency guardian is not presumed incapacitated, the appointment of an emergency
guardian is meaningless. Id. at 36. She concludes that the only logical interpretation of
section 5513 is that once an emergency guardian is appointed, the guardian holds
exclusive authority in those areas over which she is assigned responsibility.15
Appellee urges the adoption of the position of the Superior Court that until the
adjudication of incompetency following the section 5511 hearing on August 20, 2012,
James must be “presumed competent” because section 5513 permits only a finding that
the allegedly incapacitated person appears to lack capacity. Appellee’s Brief at 24. In
this regard, she observes that because a presumption of incapacity deprives an
individual of substantial civil rights, it should not be applied cavalierly “upon the mere
(…continued)
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.
15 Appellant also cites to section 5524 of the Code which provides, in pertinent part, that
incapacitated persons are “incapable of making of a contract or gift or any instrument in
writing.” 20 Pa.C.S. § 5524. This section is facially inapplicable to the alleged tortious
conduct at issue here, which does not involve a contract, gift, or instrument in writing.
Moreover, because Appellant’s argument is underdeveloped, we decline her apparent
invitation to consider expanding the provision – which courts have interpreted as giving
rise to a rebuttable presumption of incapacity – to the circumstances of the case at bar.
See Appellant’s Brief at 32.
[J-59-2018] - 19
appearance during a truncated hearing” that an alleged incapacitated person lacks
capacity. Id. at 28. Citing In re Myers’ Estate, 150 A.2d 525 (Pa. 1959), she contends
that applying the presumption of incapacity to individuals under emergency
guardianship would render an already “dangerous statute” that is “easily capable of
abuse” even more dangerous. Appellee’s Brief at 28.
She also posits that sections 5511, 5512.1 (determination of incapacity and
appointment of guardian), and 5518 (evidence of incapacity) all set forth standards
applicable to full guardianship hearings that are not required in an emergency
proceeding. Id. at 25-26. Thus, she concludes that if an individual is presumed
incapacitated following an emergency hearing, these procedural protections and
statutory standards would be rendered superfluous. Id.
Furthermore, Appellee reiterates the position espoused by the lower courts that
the duties assigned to Schnaufer in the emergency order were not “exclusive” to the
guardian. To this end, she argues that the General Assembly intended incapacitated
persons (and, perforce, those who merely “appear to lack capacity,”) to participate in all
decisions that affect them, 20 Pa.C.S. § 5502, and to act on their own behalf to the
extent that they can. Id., § 5521(a). Accordingly, she asserts that the trial court’s jury
charge was proper because the real question in this case was whether James in fact
had the capacity to consent to his sister’s conduct on July 9. Appellee’s Brief at 29, 35
(observing that the jury’s finding that James in fact had capacity to consent was implicit
in its finding that Appellee was not liable for conversion).
Finally, she notes that the trial judge (who also wrote the emergency order)
stated during trial that James “was not an incapacitated person” on July 9 and “still
[J-59-2018] - 20
retain[ed] some rights.” Id. at 25-26 (quoting N.T., 6/12/2015, at 944). Looking to the
language of the emergency order, she contends that because it did not expressly
prohibit James from consenting to his sister’s entry into the FMR or to her removal of
memorabilia, he retained this legal right. Id. at 37 (citing section 5521(a) of the Code for
the proposition that an even an incapacitated person shall “act on his own behalf
whenever his is able to do so”).
This issue requires us to interpret section 5513 of the Code, a question of law as
to which our standard of review is de novo. See Whitmoyer v. Workers’ Compensation
Appeal Board, 186 A.3d 947, 954 (Pa. 2018). As with all matters of statutory
interpretation, we apply the Statutory Construction Act, which directs us to ascertain the
General Assembly’s intent. 1 Pa.C.S. § 1921(a). In doing so, we are to give effect to
the plain language of a provision whenever that language is clear and free from
ambiguity. Id., § 1921(b). While we may not ignore unambiguous language under the
pretext of pursuing the spirit of the statute, we must always read the words of a statute
in context, not in isolation, and give meaning to each and every provision. See
Commonwealth v. Giulian,
141 A.3d 1262, 1267 (Pa. 2016). Moreover, our
interpretation must not render any provision extraneous or produce an absurd result.
See 1 Pa.C.S. § 1921(a); see also Holland v. Marcy,
883 A.2d 449, 456 (Pa. 2005).
Over a century ago, in discussing the Act of June 25, 1895 (“for the protection of
persons unable to care for their own property”), this Court recognized that a statute of
this sort is “easily capable of abuse by designing relatives to accomplish the very wrong
intended to be guarded against, and therefore to be administered by the courts with the
utmost caution and conservatism.” In re Hoffman's Estate, 58 A. 665, 666 (Pa. 1904).
[J-59-2018] - 21
Similarly, in Denner v. Beyer, 42 A.2d 747 (Pa. 1945), we observed that “it is a serious
thing to deprive any person of the control of their own property or of their right to
dispose of it by will.”
Id. at 752.
Cognizant of these well-settled concerns, the General Assembly has designed
the Code to create a system of requirements that compel courts to narrowly tailor every
guardianship order – emergency and permanent alike – to reflect the individual needs
and abilities (or lack thereof) of the incapacitated person. The stated purpose of the
Code provisions dealing with incapacitated persons is to accomplish the goal of
assisting these persons while employing the “least restrictive” methods of doing so. 20
Pa.C.S. § 5502. Guardians should be appointed only when such services are
necessary. Id. Section 5511 specifies that when seeking a guardianship, the petitioner
must set forth, inter alia, a description of the functional limitations and physical and
mental condition of the alleged incapacitated person, the steps taken to find less
restrictive alternatives, and the specific areas of incapacity over which it is requested
that the guardian be assigned powers. Id., § 5511(e). At a guardianship hearing,
evidence must be presented regarding the types of assistance required by the person
and as to why no less restrictive alternative to guardianship would be appropriate.16 Id.,
§ 5518. Section 5512.1 requires the orphans’ court to make specific findings of fact
concerning six enumerated items, including, among others, the extent of the individual’s
16 Section 5512.2 provides that the court may hold a review hearing at any time to
assess, inter alia, whether an incapacitated person’s capacities have changed. 20
Pa.C.S. § 5512.2. Section 5517, in turn, provides that a court may, following a review
hearing, find that an individual has regained or lost capacity in certain areas or is no
longer incapacitated. In such a case, the court must modify the existing guardianship
order accordingly. Id., § 5517.
[J-59-2018] - 22
capacity to make and communicate decisions and the need for guardianship services.
Id., § 5512.1(a). This section further provides that when appointing a guardian of the
estate, if the person is only partially incapacitated, then the order shall appoint only a
limited guardian “with powers consistent with the court’s finding of limitations.” Id., §
5512.1(d). Except in those areas designated by the court order as areas over which the
limited guardian has power, “a partially incapacitated person shall retain all legal rights.”
Id., § 5512.1(g).
These procedures and protocols apply with equal force both to permanent
guardianship proceedings under section 5511 and emergency guardianship
proceedings under section 5513. The relevant statutory provisions do not distinguish
between permanent and emergency proceedings, and it is thus clear that the General
Assembly intended for section 5513 proceedings to replicate section 5511 guardianship
proceedings to the greatest extent possible, whenever possible. Section 5513
expressly provides that “[t]he provisions of section 5511, including those relating to
counsel, shall be applicable to such proceedings, except when the court has found that
it is not feasible in the circumstances.” Id., § 5513. As this language reflects, because
section 5513 provides for the appointment of guardians on an expedited basis, the
emergency nature of the proceedings may, in some cases, not permit application of the
full panoply of due process protections that are required in section 5511 proceedings,
e.g., the twenty day notice requirement (and perhaps other protections in the Code).17
17 In the case sub judice, the section 5513 proceeding substantially replicated a section
5511 hearing. The orphans’ court conducted a hearing, during which James was
represented by counsel, and considered the testimony of James’ neurologist regarding
his mental limitations. Moreover, the transcript from that hearing reveals that Appellant
(continued…)
[J-59-2018] - 23
The exigency permits the orphans’ court to proceed with the appointment, however,
because the failure of the court to step in for the protection of the incapacitated person
would result in irreparable harm.
This singular difference between sections 5511 and 5513 does not support
Appellee’s contention (and that of the lower courts) that the General Assembly intended
that individuals under the protection of an emergency guardian may continue to make
independent decisions about matters expressly assigned to their guardians. Just as
with a guardian appointed pursuant to section 5511, once the court appoints an
emergency guardian, it is the court’s decree, narrowly tailored and limited to the
individual’s specific deficiencies, that determines what kinds of decisions an individual
will no longer be permitted to make. That a guardian is appointed after an emergency
proceeding does not itself impact the extent to which an individual is legally incapable of
making decisions. Rather, by assigning specific duties to the guardian, the orphans’
court designates those areas of decision making to be within the exclusive purview of
the guardian. If this were not the case, the entire purpose of appointing an emergency
guardian – which is to avert irreparable harm resulting from decisions made by the
incapacitated person – would be undermined. Any other interpretation of the relevant
statutory language leads to an impermissibly absurd result, namely, that the allegedly
incapacitated person is in need of a guardian and that irreparable harm will result
(…continued)
and her children urged the orphans’ court not to appoint an emergency guardian,
offering that they could sufficiently provide a less restrictive alternative to accommodate
James’ limitations, and testifying that James was still capable of making certain
decisions. The orphans’ court considered this testimony on the record and appointed
an emergency guardian nonetheless. N.T., 5/24/2012, at 47-69.
[J-59-2018] - 24
without one, but that the incapacitated person is still capable of making his own
decisions in the areas where incapacity has been demonstrated. Neither the potentially
truncated nature of a section 5513 proceeding nor the limited duration of the resulting
guardianship renders the incapacitated individual any more capable of making decisions
in those areas assigned to his guardian by court order. It simply cannot be the case
that an individual is presumed competent even in the areas over which a guardian has
been assigned control.18 In arguing to the contrary, Appellee misapprehends the
overarching purpose of the Code.
The case at bar involves a straightforward dispute over the distribution of marital
assets in a contested divorce proceeding complicated by the involvement of another
family member. However, the principle established by the lower courts – that the
express terms of an emergency guardianship order can be ignored in pursuit of the
spirit of the Code – has broad and dangerous consequences. For example, an
emergency guardianship order that grants authority to a guardian to sell an asset where
time is of the essence must empower the guardian with the exclusive authority to
execute on the transaction. Likewise and unquestionably, an emergency order giving a
guardian the authority to make a critical medical decision must confer the guardian with
the exclusive ability to make the decision. Any doubt about the scope of the guardian’s
exclusive authority must be resolved by the orphans’ court prior to the issuance of a
18 Accordingly, we are not persuaded by Appellee’s contention that the language in
section 5513 (“when it appears that the person lacks capacity”), when read in context,
must mean something different than the language in section 5511 (“to be
incapacitated”). See supra, p. 20.
[J-59-2018] - 25
narrowly tailored guardianship order. The authority of a guardian cannot be subject to
the open-ended second guessing endorsed by the courts below.
We recognize and highlight that the Code anticipates that a person under a
guardianship order will, to the extent possible, be allowed to participate in decisions
affecting him or her. For example, section 5521(a), relating to the duties of a guardian
of the person, provides that if a guardian of the person must be appointed, the “guardian
[of the person] shall also encourage the incapacitated person to participate to the
maximum extent of his abilities in all decisions which affect him, to act on his own behalf
whenever he is able to do so and to develop or regain, to the maximum extent possible,
his capacity to manage his personal affairs.” 20 Pa.C.S. § 5521(a) (emphasis added).
This legislative command that a guardian must encourage an incapacitated person’s
participation in decisions that affect him does not mean that the guardian relinquishes
her exclusive, court-ordered decision-making authorities. Rather, a guardian acts in
compliance with section 5521(a) by considering her ward’s desires and, perhaps,
consenting to them, not by substituting the ward’s authority for her own. 19 In the case at
bar, section 5521(a) at best supports the proposition that Schnaufer should have
considered James’ request to remove the memorabilia from the FMR, not that James
could circumvent the guardian because he had co-equal authority to authorize his sister
to do so absent Schnaufer’s approval.
Here, the orphans’ court, in the broadest terms, assigned control over James’
property to his emergency guardian of the estate. Specifically, Schnaufer had the
19 Similarly, the express language of section 5521(a) presupposes the guardian’s
participation in discerning when her ward may be capable of acting on his own behalf.
20 Pa.C.S. § 5521(a).
[J-59-2018] - 26
“powers, duties and responsibilities … to ascertain, assemble and administer all of the
property owned by [James]” and “to identify and ascertain the nature, extent and
whereabouts of any and all property owned by [James] and one or more other persons,”
including property that was conveyed by or on behalf of James in the last year. Order
Appointing Emergency Guardians, 5/24/2012, at 2.20
Because we conclude that James’ ability to consent to Appellee’s conduct should
be determined by inverse reference to the duties assigned to Schnaufer in the
unchallenged court order, we hold that the jury instructions regarding capacity were
misleading,21 and the Superior Court erred in concluding that James was presumptively
competent on July 9, 2012.22 If James or Appellee believed that Schnaufer was failing
to perform her duties by not removing the memorabilia from the FMR or that the
guardianship order was too broad in relation to James’ incapacity, their exclusive
20 Notably, the Code provides that an incapacitated person’s guardian of the estate has
the same “powers, duties and liabilities” set forth in certain enumerated provisions
relating to personal representatives of decedents’ estates and guardians of minors’
estates. Id., § 5521(b). Specifically, as pertinent here, the guardian of the estate “shall
have the right to, and shall take possession of, maintain and administer, each real
and personal asset” of her ward “to which [her] appointment extends.” See id., § 5141
(relating to possession of real and personal property by the guardian of the estate of a
minor) (emphasis added).
21 No party has challenged the propriety of submitting to a jury the scope of the
orphans’ court’s guardianship order and thus, we do not address the issue.
22 It appears that the trial court at times may have viewed the question of James’
capacity to consent as related to his guardianship of the person rather than to his
guardianship of the estate. See supra, p. 8 (observing discrepancy in trial court’s jury
instruction). Consistent with our holding that the language of the emergency
guardianship order governs the extent to which James had capacity to consent, we
observe that whether he could consent to Appellee’s entry into the FMR – as opposed
to her removal of memorabilia therefrom – may not implicate the duties assigned to his
guardian of the estate. We leave resolution of these questions for decision on remand.
[J-59-2018] - 27
recourse was to petition the orphans’ court for a review hearing pursuant to section
5512.2 of the Code. No such review hearing occurred prior to July 9, 2012 or at any
point thereafter.
In conclusion, consistent with the position of the parties up until the present
appeal, we hold that James was still under the protection of the unchallenged May 24,
2012 emergency order on July 9, 2012 when he and Appellee entered the FMR and
removed the memorabilia. It was error for the Superior Court to consider and opine on
the validity of the order on the basis of the Termination Provisions. Moreover, we hold
that an individual under the protection of an emergency guardianship order has been
determined to lack sufficient capacity to make certain decisions and that the extent of
his decision-making capacity depends on the specific “powers, duties and liabilities”
afforded to the guardian by court order. See 20 Pa.C.S. § 5513. We therefore vacate
the Superior Court’s decision and remand the matter to that court for proceedings
consistent with this Opinion.
Chief Justice Saylor and Justices Baer, Todd, Dougherty and Wecht join the
opinion.
Justice Mundy files a concurring opinion.
[J-59-2018] - 28
