J-A16031-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: PETITION OF: J.M.Y.,                  :   IN THE SUPERIOR COURT OF
                                             :         PENNSYLVANIA
ALLEGHENY COUNTY DEPARTMENT OF               :
BEHAVIORAL HEALTH AND THE                    :
PENNSYLVANIA STATE POLICE                    :
                                             :
APPEAL OF: J.M.Y.                            :   No. 1323 WDA 2015

                    Appeal from the Order March 10, 2015
              in the Court of Common Pleas of Allegheny County
                   Orphans’ Court at No(s): CC 1419 of 2014

BEFORE:     SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:              FILED NOVEMBER 16, 2016

      J.M.Y. (Appellant) appeals from the order entered on March 10, 2015,

which denied his petition for expunction of mental health records and

restoration of firearms rights. We affirm.

      On the evening of September 21, 2012, Appellant was involuntarily

committed to Western Psychiatric Institute and Clinic (WPIC), pursuant to 50

P.S. § 7302 (section 302) of the Mental Health Procedures Act (MHPA).

      On September 24, 2012, Dr. Frank DiPietro, an attending psychiatrist

at WPIC, filed an application for extended involuntary treatment pursuant to

50 P.S. § 7303 (section 303) of the MHPA, noting that Appellant’s

“significant dangerous/impulsive behavior necessitated continued stay.”

Application for Extended Involuntary Treatment, 9/24/2012. On September

25, 2012, a certification was issued pursuant to section 303, ordering

Appellant into outpatient treatment for a period not to exceed 20 days.



*Retired Senior Judge assigned to the Superior Court.
J-A16031-16


Certification, 9/25/2012.      Appellant was released from the hospital on

September 25, 2012.         As a consequence of his involuntary commitments,

Appellant    was   barred    from   possessing   a   firearm   under   18   U.S.C.

§ 922(g)(4).1

        On November 24, 2014, Appellant filed a petition, pursuant to 18

Pa.C.S. § 6105(f)(1) and 18 Pa.C.S. § 6111.1(g)(2), seeking to vacate and

expunge his involuntary commitment records, and restore his rights to own

a firearm. A hearing was held on January 8, 2015. On March 10, 2015, the

orphans’ court denied Appellant’s petition. Appellant filed exceptions to the

court’s order, which were denied by operation of law.           This timely-filed

appeal followed.     The orphans’ court did not order Appellant to file a

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925,

and none was filed.     The orphans’ court filed an opinion on October 17,

2015.

        On appeal, Appellant claims that the orphans’ court erred in denying

his petition, arguing that there was insufficient evidence to support his

section 302 commitment. Appellant’s Brief at 20-22. Appellant also assails

the validity of his section 303 commitment, contending that commitment



1
  Appellant’s commitments also precluded him from firearm possession
under 18 Pa.C.S. §§ 6105 (a)(1) and (c)(4). On July 28, 2015, the orphans’
court issued an order restoring Appellant’s right to possess a firearm under
these subsections; however, this order does not affect his federal
ineligibility.


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failed to meet the numerous procedural safeguards of the MHPA. Id. at 12-

19.

      “Our well-settled standard of review in cases involving a motion for

expunction is whether the trial court abused its discretion.” In re Keyes, 83

A.3d 1016, 1022 (Pa. Super. 2013).            Before we consider Appellant’s

substantive claims, we must first determine whether the orphans’ court had

jurisdiction to consider Appellant’s expunction petition.

      Appellant was initially committed involuntarily under section 302,

which provides in relevant part as follows.

      (a) Application for Examination.--Emergency examination
      may be undertaken at a treatment facility upon the certification
      of a physician stating the need for such examination; or upon a
      warrant issued by the county administrator authorizing such
      examination; or without a warrant upon application by a
      physician or other authorized person who has personally
      observed conduct showing the need for such examination.

                                     ***

            (2) Emergency Examination Without a Warrant.--
            Upon personal observation of the conduct of a
            person constituting reasonable grounds to believe
            that he is severely mentally disabled and in need of
            immediate treatment, any physician or peace officer,
            or anyone authorized by the county administrator
            may take such person to an approved facility for an
            emergency examination. Upon arrival, he shall make
            a written statement setting forth the grounds for
            believing the person to be in need of such
            examination.

      (b) Examination and Determination of Need for
      Emergency Treatment.--A person taken to a facility shall be



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     examined by a physician within two hours of arrival in order to
     determine if the person is severely mentally disabled within the
     meaning of section 301 and in need of immediate treatment. If it
     is determined that the person is severely mentally disabled and
     in need of emergency treatment, treatment shall be begun
     immediately. If the physician does not so find, or if at any time it
     appears there is no longer a need for immediate treatment, the
     person shall be discharged and returned to such place as he may
     reasonably direct. The physician shall make a record of the
     examination and his findings. In no event shall a person be
     accepted for involuntary emergency treatment if a previous
     application was granted for such treatment and the new
     application is not based on behavior occurring after the earlier
     application.

     (c) Notification of Rights at Emergency Examination.--
     Upon arrival at the facility, the person shall be informed of the
     reasons for emergency examination and of his right to
     communicate immediately with others. He shall be given
     reasonable use of the telephone. He shall be requested to furnish
     the names of parties whom he may want notified of his custody
     and kept informed of his status. The county administrator or the
     director of the facility shall:

           (1) give notice to such parties of the whereabouts
           and status of the person, how and when he may be
           contacted and visited, and how they may obtain
           information concerning him while he is in inpatient
           treatment; and

           (2) take reasonable steps to assure that while the
           person is detained, the health and safety needs of
           any of his dependents are met, and that his personal
           property and the premises he occupies are secure.

     (d) Duration of Emergency Examination and Treatment.--A
     person who is in treatment pursuant to this section shall be
     discharged whenever it is determined that he no longer is in
     need of treatment and in any event within 120 hours, unless
     within such period:

                                    ***



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           (2) a certification for extended involuntary
           emergency treatment is filed pursuant to section 303
           of this act.

50 P.S. § 7302(a)-(d) (footnotes omitted).

     During his 302 commitment, WPIC psychiatrists certified that Appellant

was in need of extended treatment.     Extended involuntary commitment is

governed by section 303 of the MHPA.

     Under Section 7303, when a facility deems a patient to be in
     need of additional care beyond the 120 hours of emergency care
     authorized by Section 7302, an application to extend treatment
     may be filed in the trial court and an informal hearing held within
     24 hours of the filing of the application. 50 P.S. § 7303(a)-(b).
     After the hearing, if the judge or mental health review officer
     certifies the patient as severely mentally disabled, he may
     authorize up to an additional twenty days of treatment. 50 P.S.
     § 7303(c), (f). When this certification is made by a mental
     health review officer as opposed to a judge, the patient
     may petition the trial court to review the certification. 50
     P.S. § 7303(g). A hearing is to be held within 72 hours of the
     filing of that petition. Id.

In re R.F., 914 A.2d 907, 914 (Pa. Super. 2006) (emphasis added).

     Appellant brought his petition for expunction pursuant to subsection

6111.1(g) of the Uniform Firearms Act, which provides as follows.

     (g) Review by court.--

                                   ***

           (2) A person who is involuntarily committed pursuant
           to section 302 of the Mental Health Procedures Act
           may petition the court to review the sufficiency of
           the evidence upon which the commitment was
           based. If the court determines that the evidence



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           upon which the involuntary commitment was based
           was insufficient, the court shall order that the record
           of the commitment submitted to the Pennsylvania
           State Police be expunged. …

           (3) The Pennsylvania State Police shall expunge all
           records of an involuntary commitment of an
           individual who is discharged from a mental health
           facility based upon the initial review by the physician
           occurring within two hours of arrival under section
           302(b) of the Mental Health Procedures Act and the
           physician’s determination that no severe mental
           disability existed pursuant to section 302(b) of the
           Mental Health Procedures Act. The physician shall
           provide signed confirmation of the determination of
           the lack of severe mental disability following the
           initial examination under section 302(b) of the
           Mental Health Procedures Act to the Pennsylvania
           State Police.

18 Pa.C.S. § 6111.1(g)(2), (3) (footnotes omitted).

     In his petition to the orphan’s court, Appellant sought expunction of

both his section 302 commitment records and his commitment records under

section 303.   However, this Court has interpreted the plain language of

subsection 6111.1(g) to provide “no opportunity to obtain expunction of

mental health records pursuant to a commitment under [section 303].” In

re Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011) (holding, inter alia, that

subsection 6111.1(g) “only imbues the lower court with jurisdiction to review

commitments under [section 302]”).2



2
  The facts of Jacobs are similar to those set forth herein. In May of 2009,
Jacobs sought expunction, pursuant to section 6111.1(g), of the records of
his 2004 involuntary commitment. Finding that the section 302 expunction


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     The Jacobs court also held that, even if an appellant is entitled to

expunction under section 302, expunction cannot occur if the appellant was

also involuntarily committed under section 303. Id. Further, the Court held

that an appellant seeking expunction and restoration of firearms rights

cannot “bootstrap” review of a section 303 commitment to a petition seeking

review of a section 302 commitment under section 6111.1(g) because the

section 303 commitment is “an entirely separate judicial proceeding,

complete with its own avenue of appeal.” Id. (footnote omitted).

     Here, Appellant’s initial section 302 commitment was extended under

section 303 pursuant to the certification recommending outpatient treatment

signed on September 25, 2012, the date of Appellant’s discharge. Pursuant

to the MHPA, Appellant was entitled to petition the court of common pleas

for review of his 303 commitment. 50 P.S. § 7303(g). He failed to do so.3



could not move forward because Jacobs had also been committed under
section 303 (which was not subject to expunction under section 6111.1(g)),
the Court determined that his petition and appeal were moot. Jacobs, 15
A.3d at 511.
3
  While there is no timeframe in section 303(g) outlining when a petition for
review to the court of common pleas must be filed, 42 Pa.C.S. § 5571, which
governs appeals generally, provides for a 30-day appeal period. See 42
Pa.C.S. § 5571 (“Except as otherwise provided in subsections (a) [relating to
appeals to the appellate courts] and (c) [outlining exceptions not applicable
herein] and in section 5571.1 […], an appeal from a tribunal or other
government unit to a court or from a court to an appellate court must be
commenced within 30 days after the entry of the order from which the
appeal is taken, in the case of an interlocutory or final order.”) Our
Supreme Court has observed that a mental health review officer is “a law-


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Accordingly, the orphan’s court was without jurisdiction to review his section

303 commitment.

      Moreover, under Jacobs, Appellant may not now bootstrap a request

for review of his section 303 commitment to his petition for section 302

review under section 6111.1. Further, because he was involuntarily

committed under both sections, Appellant’s request for expunction of his 302

commitment cannot be granted. Jacobs, 15 A.3d at 511. Thus, pursuant to

the binding precedent set forth in Jacobs, Appellant’s petition and appeal

are moot. Id. Accordingly, we affirm the orphans’ court’s order.

      Order affirmed.

      Judge Olson joins.

      Judge Shogan files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




trained, quasi-judicial officer who prepares a certification of findings ‘as to
the reasons that extended involuntary treatment is necessary and a
description of the treatment to be provided[.]’” In re K.L.S., 934 A.2d 1244,
1247-48 (Pa. 2007). Accordingly, a proceeding before a mental health
review officer is an appeal from a tribunal or other government unit subject
to the 30-day appeal period under section 5571.



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