In re Miscin
| Citation | 885 A.2d 558 |
| Parties | In re: Marlene MISCIN, an Alleged Incapacitated Person. Appeal of: Allegheny County Department of Human Services. |
| Decision Date | 14 October 2005 |
| Court | Superior Court of Pennsylvania |
Paul R. Molter, Pittsburgh, for appellant.
Thelma C. Spells, Pittsburgh, for appellee.
¶ 1 Appellant, Allegheny County Department of Human Services, appeals from the order entered in the Allegheny County Court of Common Pleas, Orphans' Court Division, which denied a final hearing on Appellant's petition to appoint a permanent plenary guardian for Appellee, Marlene Miscin. As this appeal is taken from an interlocutory order which is not immediately appealable, we quash.
¶ 2 The relevant facts and procedural history of this appeal are as follows. Appellee is in her late fifties and suffers from schizoaffective disorder, cognitive disorder, and multiple sclerosis. She is not ambulatory and is unable to care physically for herself. She lives with her father, her only known heir, who is in his nineties and incapable of caring for her. On March 17, 2004, Appellee was admitted to Forbes Regional Hospital initially under a Section 302 civil commitment and subsequently under a Section 304 civil commitment pursuant to the Mental Health Procedures Act ("MHPA").1
¶ 3 On May 11, 2004,2 Appellant filed a petition to appoint Jewish Family and Children's Service as permanent plenary guardian of the person and estate of Appellee, an alleged incapacitated person. Appellant's petition asserted Appellee's physical and mental condition rendered her incapable of receiving and evaluating information properly, and unable to meet her essential requirements for physical health, safety, or to manage her financial resources. Appellant's petition was supported by an affidavit from Dr. J. John, M.D., of Forbes Regional Hospital, who had examined Appellee on April 26, 2004. The Orphans' Court set a hearing date for June 10, 2004, and appointed counsel to represent Appellee. On June 9, 2004, the Orphans' Court granted Appellee a continuance to allow her to apply for comprehensive in-home services from the Community Life Homestead LTCCAP program to enable Appellee to remain at home upon discharge from the hospital. The Community Life program determined Appellee was ineligible to participate in the program. In response, Appellant filed a motion on June 29, 2004, for a final hearing to appoint Appellee a permanent plenary guardian. The Orphans' Court scheduled the hearing for July 27, 2004. At the hearing, the Honorable Walter R. Little of the Orphans' Court noted the MHPA precluded the court from appointing a permanent plenary guardian while Appellee was under an involuntary commitment, and denied Appellant's petition on that basis.3 On August 9, 2004, Appellant filed this timely notice of appeal.
¶ 4 On August 16, 2004,4 Appellant filed a subsequent petition in Orphans' Court seeking to appoint an emergency limited guardian and a permanent plenary guardian for Appellee.5 On that date, the Honorable Lee Mazur of the Orphans' Court granted Appellant's petition to appoint Jewish Family and Children's Service as Appellee's emergency limited guardian, and scheduled a hearing for October 13, 2004 to appoint a permanent plenary guardian.
¶ 5 With respect to the pending appeal of the July 28th order, Appellant filed a court-ordered Rule 1925(b) concise statement on August 30, 2004. On September 16, 2004, Judge Mazur dismissed Appellant's petition to appoint a permanent plenary guardian for Appellee, and directed that all further actions concerning the matter be presented to Judge Little. The Orphans' Court filed its opinion on December 30, 2004.
¶ 6 On appeal, Appellant raises two issues for our review:
¶ 7 As a prefatory matter, we must determine whether this appeal lies from a final order subject to our review. We may examine the issue of appealability sua sponte because it affects the Court's jurisdiction over the case. In re Estate of Cherwinski, 856 A.2d 165 (Pa.Super.2004) (citing In re Estate of Borkowski, 794 A.2d 388 (Pa.Super.2002)). An appeal must be taken from a final order. In re Estate of Cherwinski, supra. A final order is defined as follows:
Pa.R.A.P. 341. See In re Estate of Borkowski, supra. Thus, for purposes of the present case, an order is final and appealable if it disposes of all claims or if a statute expressly defines it as final.6 See id.
¶ 8 Moreover, Rule of Appellate Procedure 342 provides:
¶ 9 Further, an appeal may be taken as of right from an interlocutory order made appealable by statute or general rule. Pa.R.A.P. 311(a)(8). An interlocutory order may also be appealed by permission. Pa.R.A.P. 312, 1311; 42 Pa. C.S.A. § 702(b). In re Estate of Schmitt, 846 A.2d 127, 129 (Pa.Super.2004), appeal quashed, 579 Pa. 703, 857 A.2d 679 (2004).
¶ 10 Instantly, Appellant has taken its appeal from the Orphans' Court order of July 28, 2004, which denied a final hearing on Appellant's petition to appoint a permanent plenary guardian for Appellee. The court reasoned it was without authority to appoint a permanent plenary guardian while Appellee was still involuntarily committed pursuant to the MHPA. (See Trial Court Opinion at 4-8). See also 20 Pa.C.S.A. § 5521(f). Significantly, the Orphans' Court suggested it would consider the matter upon Appellee's discharge from involuntary commitment. (See N.T., 7/27/04, at 11). The court did not dispose of Appellant's claim by denying appointment of a permanent plenary guardian. It merely refused to consider the petition on its merits while Appellee's involuntary commitment was in place. Thus, Appellant's claim does not lie from a final order under Pa.R.A.P. 341(b)(1). See In re Estate of Cherwinski, supra; In re Estate of Borkowski, supra.
¶ 11 Next, we examine whether the court's order is expressly defined as a final order by statute. See Pa.R.A.P. 341(b)(2). The MHPA, which establishes the rights and procedures for all involuntary treatment of mentally ill persons, does not include an express provision regarding the appealability of orders involving appointment of guardians. See 50 P.S. §§ 7101-7503. Likewise, the applicable Pennsylvania guardian statute does not expressly define the denial of a final hearing to appoint a permanent plenary guardian as a final order. See 20 Pa.C.S.A. §§ 5501-5555. Therefore, Appellant's claim does not lie from a final order under Pa.R.A.P. 341(b)(2). For the same reasons, Appellant's appeal may not be taken as of right from an interlocutory order made appealable by statute or general rule. See Pa. R.A.P. 311(a)(8); 50 P.S. §§ 7101-7503; 20 Pa.C.S.A. §§ 5501-5555.
¶ 12 Finally, the Orphans' Court did not certify the order as final under Rule 342. See Pa.R.A.P. 342. Appellant did not seek an interlocutory appeal by permission pursuant to Rule 312. See Pa.R.A.P. 312, 1311; 42 Pa.C.S.A. § 702(b). Accordingly, we are without jurisdiction to consider Appellant's issues on the merits and must quash this appeal.
¶ 13 Appeal quashed.
1. 50 P.S. §§ 7302 and 7304.
2. The docket entry indicates the petition...
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