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Home My WebLink About10-06-09Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 717-692-2345*phone 717-692-3554*fax JeJJ~a shafferengle. com n c~ N g .o -i ` ~ C7 z~ G~ !"J :~ m --~ c: { za - _ ; C?C7T ]Y C:~~~1 ~~C_ Z - - 'rl ~ cl IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-09-0795 PETITION TO INTERVENE Petitioner, MARK R. AVENI, through his attorneys, Shaffer & Engle Law Offices, LLC, more specifically, Jeffrey B. Engle, Esquire, and pursuant to Pa.R.C.P. § 2326 et. seq., files this Petition to Intervene and in support thereof avers the following: 1. Petitioner, MARK R. AVENI, is an adult individual residing at 220 Hereford Lane, Johnstown, Cambria County, Pennsylvania 15905. 2. Respondent, Anita M. Aveni, is an adult individual residing at 51 Kensington Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 3. Petitioner is represented by counsel, Jeffrey B. Engle, Esquire of Shaffer 8c Engle Law Offices, LLC, located at 512 Mazket Street, Millersburg, Pennsylvania 17061. 4. Respondent is represented by counsel, John M. Kerr, Esquire of Law Office of John M. Kerr, located at 5020 Ritter Road, Suite 109, Mechanicsburg, Pennsylvania 17055. `\~ 5. The alleged incapacitated person, Sean Aveni, was appointed counsel by This Honorable Court. Sean Aveni is represented by Albert Masland, Esquire of Saidis Flower & Lindsay, located at 26 West High Street, Carlisle, Pennsylvania 17013. 6. Petitioner is the biological father and caretaker for Sean A. Aveni, the alleged incapacitated person. 7. Respondent filed a "Petition to Adjuducate [sicJ a Person Incompetent and For the Appointment of a Guardian of the Person" [hereinafter "Petition for Guazdianship"] in Cumberland County on August 25, 2009. 8. Respondent filed an "Important Notice Citation With Notice" [hereinafter "Notice"] at the above-referenced docket on August 31, 2009. 9. Petitioner was served with the Petition and Notice by U.S. First Class Mail on September 2, 2009. 10. A hearing was originally scheduled to determine Respondent's Petition for Guardianship for September 10, 2009 at 3:30 p.m. by court order dated August 26, 2009. l 1.On or about September 9, 2009, Petitioner filed Preliminary Objections to Respondent's Petition for Guardianship raising improper venue pursuant to Pa.R.C.P. 1028 and 20 Pa.C.S.A § 5511 et seq., thereby attaching a Rule to Show Cause why Petitioner's Preliminary Objections should not be granted and an Order requesting a continuance for the hearing to determine Respondent's Petition for Guazdianship. (See Petition for Guazdianship, a copy of which is attached hereto as Exhibit 1). 12. On or about September 10, 2009, this Honorable Court scheduled a hearing on the Rule for October 2, 2009 at 10:00 a.m. (See Order, a copy of which is attached hereto as Exhibit 2). 13. Also on or about September 10, 2009, this Honorable Court granted Petitioner's continuance and rescheduled the hearing to determine Respondent's Petition for Guazdianship for October 7, 2009 at 10:45 a.m. (See Order, a copy of which is attached hereto as Exhibit 3). 14. The Petitioner's Preliminary Objections were denied. 15. Pursuant to 20 Pa.C.S.A. § 5511(a), an individual interested in the alleged incapacitated person's welfaze may petition the court to be appointed guazdian of the alleged incapacitated person. 16. It is believed and therefore averred, that in appointing a guardian of Sean A. Aveni, the alleged incompetent, this Honorable Court must consider Sean's best interests. In support thereof, Petitioner cites In re Forsyth's Estate, 12 Pa. D. & C. 3d 368 (1979), where the court stated: "[t]he problem of determining whom to appoint as guazdian for an adult incompetent is similar to that inherent in a child custody case and the court must basically determine what is in the best interests of the incompetent." 17. Petitioner is the natural and biological father of Sean A. Aveni. 18. For neazly twenty (20) yeazs from his birth, Petitioner and Respondent have been the primary caregivers for Sean A. Aveni. The parties have also had the assistance of medical aides in providing care for Sean. 19. Petitioner has been an active caretaker for Sean A. Aveni during his lifetime, sharing equally in management of Sean A. Aveni's medical condition and necessary medical treatments. 20. Petitioner has been the primary custodian for Sean A. Aveni's estate. 21. Petitioner has provided Sean A. Aveni with opportunities to increase social and community integration, which Sean enjoys and benefits from. 22. If permitted to intervene, Petitioner will respectfully request that Petitioner be named plenary guardian of Sean A. Aveni's person and estate. WHEREFORE, Petitioner requests leave to intervene in Respondent's action to be appointed plenary guardian of Sean A. Aveni and file the attached Petition for Guardianship. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES Millersburg, PA 17061 717-692-2345 Attorney for Petitioner VERIFICATION I verify that the averments in this Petition to Intervene are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. Dated: (~~~ ~ ~ ~~ Mazk R. Aveni, Petitioner IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA ORPHANS' COURT DIVISION N0.21-09-0795 ORDER OF COURT AND NOW, day of 2009, upon review of the within "Petition for Adjudication of Incapacity and Appointment of Guardian" it is hereby ORDERED and DECREED that a Hearing be held on the day of 2009, at .M. in Courtroom No. of the Cumberland County Courthouse, 1 Courthouse Square, Carlisle, Pennsylvania 17013. BY THE COURT, J. Distribution: Jeffrey B. Engle, Esq. 512 Market Street, Millersburg, PA 17061 717-692-2345 (P) 717-756-3554 (F) jeff(a~shafferenele.com John Kerr, Esq. 5020 Ritter Rd. Ste. 109 Mechanicsburg, PA 17055 Albert H. Masland, Esq. 26 West High St. Carlisle, PA 17013 IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNA ORPHANS' COURT DIVISION N0.21-09-0795 FINAL DECREE AND NOW, day of 2009, upon a hearing in this matter held on October 7, 2009, it has been determined that Sean A. Aveni is incapacitated, and there being no less restrictive alternative than appointment of a plenary guazdian of his person and estate IT IS HEREBY ORDERED: Mazk R. Aveni, biological father of Sean A. Aveni, is hereby appointed plenary guardian of Sean A. Aveni's person and estate. Mazk R. Aveni shall be permitted to relocate Sean A. Aveni to his residence in Cambria County, Pennsylvania for purposes for executing his duties as plenary guazdian immediately. Anita M. Aveni, biological mother of Sean A. Aveni, is hereby appointed alternate plenary guardian of Sean A. Aveni's person and estate to serve for periods when Mark R. Aveni is unavailable to serve. BY THE COURT, J. Distribution: Jeffrey B. Engle, Esq. John Ken, Esq. Albert H. Masland, Esq. 512 Mazket Street, Millersburg, PA 17061 717-692-2345 (P) 717-756-3554 (F) jeff(a,shafferen le.com 5020 Ritter Rd. Ste. 109 Mechanicsburg, PA 17055 26 West High St. Cazlisle, PA 17013 Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 717-692-2345 *phone 717-692-3554 *fax Jeff~a shafferengle.com IN THE MATTER OF THE PERSON OF IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNA SEAN A. AVENI, AN ADULT INDIVIDUAL ORPHANS' COURT DIVISION N0.21-09-0795 PETITION FOR ADJUDICATION OF INCAPACITY AND APPOINTMENT OF GUARDIAN AND NOW COMES, MARK R. AVENI, biological father of Sean A. Aveni, alleged incapacitated person, by and through his attorneys, Shaffer & Engle Law Offices, and petitions this Court in accordance with 20 Pa.C.S. §5501, for an Order appointing him plenary guardian for Sean A. Aveni in the above captioned matter and in support thereof avers as follows: Petitioner, MARK R. AVENI, is an adult individual residing at 220 Hereford Lane, Johnstown, Cambria County, Pennsylvania 15905. 2. Petitioner is the father of the alleged incapacitated person, Sean A. Aveni, the subject of this Petition. 3. Sean A. Aveni is a nineteen (19) yeaz old adult individual (DOB 10/28/89) who resides and is domiciled at 220 Hereford Lane, Johnstown, Cambria County, Pennsylvania 15905; however, Sean is currently located at 51 Kensignton Drive, Camp Hill, Cumberland County, Pennsylvania 17011. 4. Sean A. Aveni was bom with Spina Bifida and Hydrocephalus, more commonly known as "water on the brain." He also suffers from restrictive lung disease and requires catherization four (4) times daily. Sean suffers from a diminished mental capacity. 5. It is believed and therefore aveaed, that Sean A. Aveni is an incapacitated person within the meaning of 20 Pa.C.S.A. § 5501 et. seq., in that his ability to receive and evaluate information effectively and communicate decisions 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. 6. Sean A. Aveni was receiving nursing support, physical therapy and nutrition support at his residence and domicile in Cambria County, Pennsylvania; however, it is unknown whether Sean receives such support in Cumberland County, Pennsylvania. 7. It is believed and therefore averred, that Sean A. Aveni requires nursing support, physical therapy and nutrition support. 8. For neazly twenty (20) yeazs from his birth, Petitioner has been a primary caregiver for Sean A. Aveni. 9. Petitioner has been an active caretaker for Sean A. Aveni during his lifetime, managing Sean A. Aveni's medical condition and necessary medical treatments. 10. Petitioner has been the primary custodian for Sean A. Aveni's estate, managing Sean's social security benefits on his behalf. 11. Sean A. Aveni does not have a Power of Attorney executed at this time. 12. There is no guazdian appointed on behalf Sean A. Aveni, the alleged incompetent. 13. Petitioner has no interest adverse to the alleged incompetent. 14. Sean A. Aveni's immediate family includes the following persons: Mother, Anita M. Aveni, 51 Kensington Drive, Camp Hill, PA 17011 15. Petitioner seeks appointment as Plenary Guazdian of his son, Sean A. Aveni's person and estate. 16. It is further requested that Petition be granted the opportunity to remove Sean A. Aveni from Cumberland County and reestablish him in Cambria County, where he's lived his entire life. 17. In support of Petitioner's request to be named plenary guardian of Sean A. Aveni, Petitioner avers the following: a. It is believed and therefore averred, that in situation involving an incapacitated adult (who has been cared for by both parents), a consideration in appointing a guazdian in such situations is "best interests of the child." In support thereof, Petitioner cites In re Forsyth's Estate, 12 Pa. D. 8c C. 3d 368 (1979), where the court stated: "[t]he problem of determining whom to appoint as guardian for an adult incompetent is similaz to that inherent in a child custody case and the court must basically determine what is in the best interests of the incompetent." b. It is undisputed that Sean A. Aveni, the alleged incapacitated person's mother, Anita Aveni, took Sean involuntarily to Cumberland County without the advice and consent of Petitioner on or about August 12, 2009. c. It is undisputed that Anita Aveni failed to disclose her true intentions of relocating Sean more than two hours away from Petitioner, his father. d. It is believed and therefore averred, that Sean A. Aveni is domiciled in Cambria County, Pennsylvania. See In re Edmundson, 167 A. 502 (Pa. Super 1933) (temporary visit of county, shortly before proceedings for appointment of guardian were instituted in such county, could not change residence of feeble-minded person who resided in another county). e. It is believed and therefore averred, that Anita Aveni has no employment of other means of self support in Cumberland County. It is believed and therefore averred, that Petitioner has full-time employment and the means of caring for Sean A. Aveni through managed care. g. It is believed and therefore averred, that while Anita Aveni was listed as the recipient for Sean A. Aveni's social security benefits, Petitioner managed said benefits for Sean A. Aveni's behalf. h. It is believed and therefore averred, that Petitioner has provided Sean A. Aveni with opportunities to increase social and community integration, which Sean enjoys and benefits from. 18. In the event that this Honorable Court denies Petitioner's request to be appointed as Sean A. Aveni's plenary guazdian, this Court has the statutory authority to appoint Petitioner as a co-guardian of Sean's person and estate. 20 Pa.C.S.A. § 5514 states: "The court, after such notice to parties in interests as it shall direct, may without a hearing appoint a succeeding guazdian to fill a vacancy in the office of guazdian or may 4 appoint a co-guazdian of the estate of an incapacitated person." 20 Pa.C.S.A. § 5514. WHEREFORE, Petitioner respectfully requests that this Honorable Court grant a citation, directed to the alleged incompetent, Sean A. Aveni, with notice thereof to his next of kin and to such other persons as the court may direct, and find Sean A. Aveni an incapacitated person and appoint the Petitioner as his plenary guazdian. Respectfully submitted, SHAFFER & ENGLE LAW OFFICES ID~~ ~ 51 azket Street Millersburg, PA 06 717-692-2345 Attorney for Petitioner VERIFICATION I, Jeffrey B. Engle, Esquire, hereby swear and affirm that the information contained in this Petition for Adjudication of Incapacity and Appointment of Guazdian is true and correct, and to the best of my knowledge, information, and belief the facts contained therein aze true and correct based upon information provided by Mazk R. Aveni and from my own firsthand knowledge and that said facts aze made subject to the penalties of 18 Pa.C.S. § 4904 relating to unswom falsification to authorities. Petitioner is outside the jurisdiction of this Court such that his verification cannot be timely obtained. Dated: d f sEP a s toes ~ IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-09-0795 RULE TO SHOW CAUSE AND NOW, this I~~day of , 2009, a rule is hereby issued upon all parties to show cause why the attached Preliminary Objections should not be granted. o~ "O~r°ti~ ago j w~- /~•'~o~.rt. ~ a~ 3 ~ r{-~ ~ C~~~P~•~~~013. J. Distribution: Jeffrey B. Engle, Esq. John M. Kerr, Esq. Albert Masland, Esq. 512 Market Street, Millersburg, PA 17061 * 717-692-2345 (P) 717-692-3554(F) * jell@shafferengle.com 5020 Ritter Road, Ste. 109 Mechanicsburg, PA 17055 26 W. High Street, Carlisle, PA 17013 * 717-243-6222 (P) 717-243-6484 (F) 3 SEP 0 9 200 9 Jeffrey B. Engle, Esquire SHAFFER & ENGLE LAW OFFICES 512 Market Street Millersburg, PA 17061 n ",, o -~, 717-692-2345 *phone ~ ~ r - c~i~ ~ ~ ~ '; ; 717-692-3554*fax p o ~ .7~~2 rn ro G.~~ c~ ;- Je~,~shafferengle. com _ ~y N ~ o ": ;-` ~70-r~ 3 _ -ii O~ - __ - c.~' ~, ~ ...: IN THE MATTER OF THE PERSON OF : IN THE COURT OF COMMON PLEAS 4'+ , :CUMBERLAND COUNTY, PENNSYLVANIA _ SEAN A. AVENI, AN ADULT INDIVIDUAL ORPHANS' COURT DIVISION N0.21-09-0795 ~1 ORDER OF COURT AND NOW, this ~~" day of Sl~, 2009, IT IS HEREBY ORDERED AND DECREED THAT the Respondent's request for a continuance is granted and a hearing to determ_in~e ~thQ,e~Petition for Guazdianshipyfi~led at this docket is rescheduled for the 7~ day of ~'"' " , 2009 at ~~~ 7 S ~~m. in Courtroom No. ~ of the Cumberland County Courthouse, 1 Courthouse Square, Cazlisle, Pennsylvania 17013. BY THE J. DISTRIBUTION: Jeffrey B. Engle, Esq. 512 Mazket Street, Millersburg, PA 17061 * 717-692-2345 (P) 717-692-3554(F) * jeff@shafferengle.com John M. Kerr, Esq. 5020 Ritter Road, Ste. 109 Mechanicsburg, PA 17055 Albert Masland, Esq. 26 W. High Street, Cazlisle, Pq4 g~t~4`~1~194@~Pf/~ 717-243-6484 (F) - In Testimony wherof, I fwrwrno set my hand and the seal of said !;Dort ^el`...u.i. o. Ccumy IN THE MATTER OF THE PERSON OF SEAN A. AVENI, AN ADULT INDIVIDUAL IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION N0.21-09-0795 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Petition to Intervene was sent First Class U.S. Mail to the following: John M. Kerr, Esquire 5020 Ritter Road, Ste. 109 Mechanicsburg, PA 17055 Attorney for Petitioner Albert H. Masland, Esquire Saidis Flower & Lindsay 26 W. High Street Cazlisle, PA 17013 Attorney for Sean A. Aveni Date: ~ ~ - ~ - y~ Melissa Wise, Paralegal to Jeffrey B. Engle, Esquire SHAFFER 8c ENGLE LAW OFFICES 512 Mazket Street Millersburg, PA 17061 (717)692-2345