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J-A23044-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: I.M.R., AN ALLEGED
INCAPACITATED PERSON
IN THE SUPERIOR COURT OF
PENNSYLVANIA
PPEAL OF: WILLIAM CARDWELL
Appeal from the Decree Entered April 8, 2022
In the Court of Common Pleas of Huntingdon County Orphans’ Court at
No(s): 2021-281
No. 728 MDA 2022
EFORE: BOWES, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BOWES, J.: FILED: MARCH 16, 2023
William Cardwell appeals from the April 8, 2022 decree adjudicating
I.M.R. to be a totally incapacitated person and appointing Huntingdon-
Bedford-Fulton Area Agency on Aging (the Agency”) as the permanent plenary
guardian of the person and estate of I.M.R. We remand for the preparation
of a supplemental orphans’ court opinion explaining the reasons for its
adjudication or specifying where in the record such reasons may be found.
I.M.R. was born in November 1938. In 2014, I.M.R. displayed
symptoms of cognitive decline and memory loss that would eventually be
diagnosed as vascular dementia, a progressive condition which impairs her
ability to function independently. Immediately prior to September 2021, she
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* Former Justice specially assigned to the Superior Court.
A
B
J-A23044-22
resided with her adult son, Appellant, who exercised power of attorney on her
behalf. The agency became involved with the family on September 13, 2021,
after a stranger discovered I.M.R. wandering alone, unable to state her name,
and indicating that she did not want to live with her son. N.T., 12/20/21, at
24. Appellant refused to cooperate fully with the Agency’s subsequent
investigation of the incident. Id. at 25-27.
On December 6, 2021, the Agency sought and received the appointment
of an emergency plenary guardian of both the person and estate of I.M.R.
Thereafter, on December 15, 2021, the Agency filed a petition to adjudicate
incapacity and to appoint a permanent plenary guardian for the person and
estate of I.M.R. The petition alleged that I.M.R. needed daily care and
supervision to ensure her safety, and it averred that no alternative to the
appointment of a guardian had been considered.
Following four non-consecutive evidentiary hearings, the orphans’ court
entered the above-described decree adjudging I.M.R. to be totally
incapacitated and appointing the Agency as the permanent plenary guardian
of both the person and estate of I.M.R. Appellant timely filed a notice of
appeal, and the orphans’ court filed a Pa.R.A.P. 1925(b) order directing him
to file and serve a Rule 1925(b) statement within twenty-one days of the
order. Appellant failed to file the statement within the allotted period.
Instead, he filed the statement five days late. Then, without leave of court,
he filed an amended statement two weeks later. Finding all the issues to be
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presented.
waived, the orphans’ court declined to address the merits of any of the issues
Appellant’s brief reiterates six of the issues that he included in his
untimely Rule 1925(b) statement:
1. Did the orphans’ court abuse its discretion or make an error of
law when it granted the Huntingdon- Bedford- Fulton Area Agency
on Aging’s motion for access to records without giving [I.M.R.] or
William Cardwell an opportunity to respond?
. Did the [orphans’] court abuse its discretion or make an error
of law when it granted emergency guardianship without a hearing
when there was no adequate proof of an actual emergency?
. Did the [orphans’] court abuse its discretion or make an error
of law when it prohibited Shaun O’Toole, Esq., [I.M.R.’s] previous
attorney, from representing [her] . . . in this matter?
. Did the [orphans’] court abuse its discretion or make an error
of law when it failed to appoint William Cardwell as guardian of
[I.M.R.’s] person despite no Area Agency on Aging observ[ations]
inside their home; only one caretaker witness who observed
William Cardwell and [I.M.R.] together inside the home over a
span of a few months; and [evidence that I.M.R.] walk[ed] away
from the home on one brief occasion three months before the
guardianship petition was filed?
. Did the [orphans’] court abuse its discretion or make an error
of law when it failed to appoint William Cardwell as guardian of
[I.M.R.’s] estate in light of four witnesses and the estate planning
documents presented clearly stating [I.M.R.’s] desired intention
for William Cardwell to inherit everything from her and the ability
to make gifts to himself?
. Did the [orphans’] court abuse its discretion or make an error
of law when it voided the deed signed by William Cardwell in light
of the fact that the Area Agency on Aging never requested that
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3
4
5
6
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William Cardwell be removed as power of attorney of [I.M.R.] and
the court did not remove him prior to signing the deed?[1]
Appellant’s brief at 4-6 (cleaned up) (unnecessary capitalization omitted).
At the outset, we consider whether Appellant has waived his claims by
failing to comply with Rule 1925(b). Generally, an appellant’s failure to timely
comply with Pa.R.A.P. 1925(b) will result in waiver of the issues raised on
appeal. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.”).
There is no dispute that Appellant filed an untimely Rule 1925(b)
statement. Pursuant to the orphans’ court’s Rule 1925(b) order, the
statement was required to be filed with the clerk of the orphans’ court and
served upon the orphans’ court judge by May 26, 2022, twenty-one days after
the entry of the order. Appellant filed the statement on May 31, 2022, five
days late. It is unclear when, if ever, Appellant served the Rule 1925
statement upon the orphans’ court judge.
Nevertheless, before this Court may find waiver under Rule 1925(b), we
must determine whether the orphans’ court’s Rule 1925(b) order complied
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1 In a separate order, the orphans’ court invalidated a March 18, 2022 transfer
of land stating that “if there was a valid power of attorney, the alleged agent
has failed to act in good faith and failed to act loyally for the principal’s
benefit.” Orphans’ Court Order, 4/7/22. As Appellant failed to appeal that
order, this Court will not address it or the propriety of the deed referenced in
Appellant’s statement of questions presented.
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strictly with the requirements of Pa.R.A.P. 1925(b)(3). See e.g., Rahn v.
Consol. Rail Corp., 254 A.3d 738, 745-46 (Pa.Super. 2021). In the case at
bar, the orphans’ court’s order stated:
AND NOW, this 5th day of May, 2022, having filed a Notice
of Appeal in the above-captioned matter, [Appellant] is directed
to file of record a Statement of Errors Complained of on Appeal
within twenty-one (21) days from this date. Said Statement shall
be filled of record with the Clerk of the Orphans’ Court and served
on this Court and opposing counsel. Any issue not properly raised
shall be deemed waived.
rder, 5/5/22. Significantly, the orphans’ court neglected to “specify . . . both
O
the place the appellant can serve the Statement in person and the address to
which the appellant can mail the Statement.” See Pa.R.A.P. 1925(b)(3)(iii).2
J-A23044-22
Contents of order. The judge’s order directing the filing and
service of a Statement shall specify:
i) the number of days after the date of entry of the judge's order
within which the appellant must file and serve the Statement;
ii) that the Statement shall be filed of record;
iii) that the Statement shall be served on the judge pursuant to
paragraph (b)(1) and both the place the appellant can serve
the Statement in person and the address to which the
appellant can mail the Statement. In addition, the judge may
provide an email, facsimile, or other alternative means for the
appellant to serve the Statement on the judge; and
(
(
(
(
iv) that any issue not properly included in the Statement timely
filed and served pursuant to subdivision (b) shall be deemed
waived.
Pa.R.A.P. 1925(b)(3) (emphasis added) (effective October 1, 2019).
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____________________________________________
2 Rule 1925(b)(3) provides:
J-A23044-22
Our decision in Rahn is instructive. In declining to find waiver in a
similar, but admittedly different situation that involved the failure to
simultaneously serve upon the trial court a timely-filed Rule 1925(b)
statement, we first observed that “in determining whether an appellant has
waived his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it
is the trial court’s order that triggers an appellant’s obligation . . . therefore,
we look first to the language of that order.” Id. at 746-47 (quoting In re
Estate of Boyle, 77 A.3d 674, 676 (Pa.Super.2013)). Thereafter, we
reasoned that the failure to serve a Rule 1925(b) statement on the trial court
did not warrant waiver because the trial court’s Rule 1925(b) order neglected
to identify the address to serve the statement on the trial court judge. Id. at
747 (“[T]he trial judge failed to follow the express requirement of the
amended Rule 1925(b) to provide [the appellant] with specific information on
how to serve his 1925(b) statement. . . . In light of these defects in the order,
we decline to quash the appeal.”).
Instantly, the orphans’ court order, like the order in Rahn, did not
conform with Rule 1925(b)(3)(iii)’s requirement to identify “the address to
which the appellant can mail the Statement.” Hence, Appellant’s failure to file
a timely Rule 1925(b) concise statement is not grounds to find waiver
pursuant to Rule 1925(b)(4)(vii).
While Rahn involved a slightly different situation concerning improper
service of a timely filed statement, this is a difference without distinction, and
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J-A23044-22
the rule expressed in Rahn requiring a non-defective Rule 1925(b) order
applies in the present case. Our perspective is buttressed by the Note to Rule
1925, which emphasizes that Subparagraph (b)(3) “specifies what the judge
must advise appellants when ordering a Statement.” Pa.R.A.P. 1925, Note
(emphasis added). Instantly, the court was required to, inter alia, identify
both the location to serve the statement in person and the address to mail it.
It provided neither. To excuse the orphans’ court’s omission in support of
finding waiver in this case would be inequitable. See Boyle v. Main Line
Health, Inc., 272 A.3d 466 (Pa.Super. 2022) (non-precedential decision at
11 n.8) (explaining, “Where the trial court’s order is inconsistent with the
requirements of Rule 1925(b)(3)(iii), we hold that the waiver provisions of
subsection (b)(4)(vii) do not apply. It would be fundamentally unfair to
require appellants to strictly comply with the requirements of Rule 1925, but
not require the same diligence from the trial court requesting a Rule 1925(b)
statement.”).
As the orphans’ court’s Rule 1925(b) order is facially deficient, we
conclude that Appellant’s failure to file a Rule 1925(b) statement did not
render his claims waived on appeal. However, rather than attempt to address
the merits of the six issues that are both asserted in Appellant’s May 31, 2022
Rule 1925(b) statement and raised on appeal without the orphans’ court’s
explanation of its reasons for fashioning the guardianship order, we direct the
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J-A23044-22
orphans’ court to draft a supplemental opinion that outlines the reasons for
its order or specifies where in the record such reasons may be found.3
Accordingly, we remand this case to the Court of Common Pleas of
Huntingdon County for issuance of an opinion pursuant to Pa.R.A.P. 1925(a).
The orphans’ court shall file its Rule 1925(a) opinion within thirty days of
receipt of the certified record.
Remanded with instructions. Jurisdiction retained.
Judge McCaffery joins this Memorandum.
P.J.E. Stevens files a Dissenting Statement.
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3 In addition to finding all of Appellant’s issues waived pursuant to Rule
1925(b), the orphans’ court provided the alternate rationale that “the
extensive record in this matter speaks for itself and establishes beyond a
reasonable doubt that [I.M.R.] is both incapacitated and in need of an
independent guardian of her person and estate (i.e., an entity person other
than [Appellant.]”). Orphans’ Court Rule 1925(a) Opinion, 5/27/22, at 2.
Contrary to the orphans’ court’s assertion, the general reference to the
certified record is an inadequate explanation of the reasons for its order and
fails to address Appellant’s specific contentions. At a minimum, Rule 1925(a)
requires that the court “specify where in the record where such reasons may
be found.” Pa.R.A.P. 1925(a).
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