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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                            Appellees

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.

DISSENTING MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 16, 2016

       While the Majority presents a cogent analysis in this matter, I am

compelled to respectfully register my dissent.

       Instantly, Appellant was a student at the University of Pittsburgh on

September 21, 2012, when he attended a fraternity party and became

intoxicated.    At the time, Appellant was taking prescribed medications for

depression and anxiety.          On that date, Appellant was apprehended by

University of Pittsburgh Police when it was reported that Appellant was

attempting to harm himself.              The police took Appellant to Western

Psychiatric Hospital, where he was involuntarily committed under section
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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302 of the Mental Health Procedures Act (“MHPA”) 50 P.S. § 7101, et seq.

Subsequently, Appellant was discharged on September 25, 2012.1 Appellant

continued his course of studies in law enforcement at the University of

Pittsburgh.     On November 24, 2014, he filed a petition to vacate and

expunge his involuntary commitment pursuant to 18 Pa.C.S. § 6105(f)(1)2

and 18 Pa.C.S. § 6111.1(g)2).3 A hearing was held on January 8, 2015, and

on March 10, 2015, the trial court signed an order denying Appellant’s

petition for expungement.4 Appellant filed exceptions that were denied by

operation of law, resulting in this appeal on August 27, 2015.5

____________________________________________


1
  Pursuant to 18 Pa.C.S. § 6105(c)(4), a person who has been involuntarily
committed to a mental institution for inpatient care and treatment under
section 302, 303 or 304 of the MHPA is prohibited from possessing, using,
controlling, selling, transferring, or manufacturing a firearm. In addition,
Appellant is prohibited from possessing a firearm under 18 U.S.C.
§ 922(g)(4).
2
  Under 18 Pa.C.S. § 6105(f)(1), the court of common pleas, upon
application of a person subject to prohibition under section 6105(c)(4), “may
grant such relief as it deems appropriate if the court determines that the
applicant may possess a firearm without risk to the applicant or any other
person.”
3
   Section 6111.1(g)(2) provides a means for expungement of records of
section 302 involuntary commitment where the evidence was insufficient to
justify such commitment.
4
  The order dated March 10, 2015, was not entered upon the docket until
August 26, 2015. Record Docket Entry # 7.
5
  On October 7, 2015, the trial court issued an opinion in support of its
March 10, 2015, order. The trial court concluded that Appellant was validly
committed under section 303 and, thus, was barred from possessing a
(Footnote Continued Next Page)


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      The learned Majority is correct in its statement that prevailing case law

has interpreted 18 Pa.C.S. § 6111.1(g) as providing no opportunity to obtain

expunction of mental health record pursuant to a commitment under section

303 and only allows for a trial court to review commitments under section

302. See In re Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011). In addition, I

agree with the Majority’s statement “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.’”

Majority Memorandum, at 7 (quoting Jacobs). However, it is my firm belief

that only a section 303 commitment that provides adequate due process

may preclude an expunction of a section 302 commitment.



                       _______________________
(Footnote Continued)

firearm under 18 Pa.C.S. § 6105(a)(1) and (c)(4). Trial Court Opinion,
10/7/15, at 1. The trial court stated, however, that it limited its review to
the sufficiency of the evidence for the section 303 commitment. Id. at 2. In
addition, the trial court noted the following:

      On July 28, 2015, an Order was filed in the matter restoring
      [A]ppellant’s rights to possess a firearm under 18 Pa.C.S.A.
      § 6105(f)(1). Although this allows Appellant to again possess a
      firearm under Pennsylvania law, he is still barred from
      possessing a firearm under the federal Gun Control Act. 18
      U.S.C.A. § 922(g)(4).

Trial Court Opinion, 10/7/15, at 1, n.1.



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       The     law   in    Pennsylvania   is   “well-settled   that   involuntary   civil

commitment of mentally ill persons constitutes deprivation of liberty and

may be accomplished only in accordance with due process protections.” In

re Hutchinson, 454 A.2d 1008, 1010 (Pa. 1982); In re Chiumento, 688

A.2d    217,    220       (Pa.   Super.   1997).      “The     very   nature   of   civil

commitment . . . entails an extraordinary deprivation of liberty. . . .                A

statute sanctioning such a drastic curtailment of the rights of citizens must

be narrowly, even grudgingly construed, in order to avoid deprivations of

liberty without due process of law.” In re Woodside, 699 A.2d 1293, 1298

(Pa. Super. 1997) (quoting In Re S.C., 547, 421 A.2d 853, 857 (Pa. Super.

1980)).

       The legislative policy reflected in the Mental Health Procedures
       Act is to require that strict conditions be satisfied before a court
       order for commitment shall be issued. . . . Such a policy is in
       accord with the recognition that commitment entails a massive
       deprivation of liberty. Collateral consequences, too, may result
       from the stigma of having been adjudged mentally ill. . . .
       Numerous restrictions and routines are imposed in a mental
       hospital . . . [and] are designed to aid and protect the mentally
       ill persons, even those already in custody for other reasons, who
       do not need such treatment should not be subjected to it.
       Indeed, a person who is mistakenly committed to a mental
       hospital might suffer serious psychological damage. For these
       reasons, strict adherence to the statutory requirements is
       to be compelled.

In re Ryan, 784 A.2d 803, 807 (Pa. Super 2001) (quoting Commonwealth

v. Hubert, 430 A.2d 1160, 1162 (Pa. 1981) (emphasis added).                     As we

ultimately held in In re Ryan, when an appellant’s due process rights under

the MHPA are violated, “we may vacate the certification for involuntary

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treatment pursuant to section []303, and direct that all records pertaining to

this matter be expunged.” In re Ryan, 784 A.2d at 808.

      With these overriding concepts in mind, I observe the following.

Section   302   of   the   MHPA   provides   for   the   involuntary   emergency

examination and treatment of a person not to exceed 120 hours if, upon

certification of a physician for examination, or upon a warrant issued by a

county administrator authorizing an examination, an examination conducted

within two hours of arrival by a physician shows that the person is severely

mentally disabled and in need of emergency treatment. 50 P.S. § 7302(a),

(b). Section 303 of the MHPA provides for extended involuntary emergency

treatment of any person who is being treated pursuant to section 302 for a

period not to exceed 20 days if, after an informal conference where the

patient is represented by counsel, a judge or mental health review officer

finds that the patient is severely mentally disabled and in need of continued

involuntary treatment, and so certifies. 50 P.S. § 7303(a)-(c). Indeed, the

person is entitled to the appointment of counsel.        50 P.S. § 7303(b).   In

addition, section 303(c) requires the following:

      (1) At the commencement of the informal conference, the judge
      or the mental health review officer shall inform the person of
      the nature of the proceedings.          Information relevant to
      whether the person is severely mentally disabled and in need of
      treatment shall be reviewed, including the reasons that
      continued involuntary treatment is considered necessary. Such
      explanation shall be made by a physician who examined the
      person and shall be in terms understandable to a layman. The
      judge or mental health review officer may review any relevant
      information even if it would be normally excluded under rules of

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     evidence if he believes that such information is reliable. The
     person or his representative shall have the right to ask questions
     of the physician and of any other witnesses and to present any
     relevant information. At the conclusion of the review, if the
     judge or the review officer finds that the person is severely
     mentally disabled and in need of continued involuntary
     treatment, he shall so certify. Otherwise, he shall direct that the
     facility director or his designee discharge the person.

50 P.S. 7303(c)(1).

     Also of importance are the following provisions of the statute:

     (d) CONTENTS OF CERTIFICATION. — A certification for
     extended involuntary treatment shall be made in writing
     upon a form adopted by the department and shall include:

           (1) findings by the judge or mental health review
           officer as to the reasons that extended involuntary
           emergency treatment is necessary;

           (2) a description of the treatment to be provided
           together with an explanation of the adequacy and
           appropriateness of such treatment, based upon the
           information received at the hearing;

           (3) any documents required by the provisions of
           section 302;

           (4) the application as filed pursuant to section
           303(a);

           (5) a statement that the person is represented by
           counsel; and

           (6) an explanation of the effect of the
           certification, the person’s right to petition the
           court for release under subsection (g), and the
           continuing right to be represented by counsel.

     (e) FILING AND SERVICE. — The certification shall be
     filed with the director of the facility and a copy served on
     the person, such other parties as the person requested to be
     notified pursuant to section 302(c), and on counsel.

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     (f) EFFECT OF CERTIFICATION. — Upon the filing and
     service of a certification for extended involuntary
     emergency treatment, the person may be given treatment in
     an approved facility for a period not to exceed 20 days.

     (g) PETITION TO COMMON PLEAS COURT. — In all cases in
     which the hearing was conducted by a mental health review
     officer, a person made subject to treatment pursuant to
     this section shall have the right to petition the court of
     common pleas for review of the certification. A hearing
     shall be held within 72 hours after the petition is filed unless a
     continuance is requested by the person’s counsel. The hearing
     shall include a review of the certification and such evidence as
     the court may receive or require. If the court determines that
     further involuntary treatment is necessary and that the
     procedures prescribed by this act have been followed, it shall
     deny the petition. Otherwise, the person shall be discharged.

50 P.S. § 7303(d), (e), (f), (g) (emphases added).

     Appellant asserts, with supporting citation to the record, that:

     [O]n September 25, 2012, the day of the purported hearing
     before the Mental Health Review Officer, he was approached by
     a doctor and then a public defender and asked to sign certain
     documents. ([N.T., 1/8/15, at 32-33]) However, based on the
     prior recommendation of a head nurse, the Petitioner declined to
     sign the documents. ([Id. at 33]) [Appellant] testified that he
     never saw the doctor or public defender again, and shortly
     thereafter that day he was released with no directives or
     instructions for further treatment. (Ibid.) At the time of his
     release, [Appellant] was never advised of the occurrence of a
     Section 303 hearing, was never advised of the nature or
     ramifications of such a hearing, did not appear at any such
     hearing, did not stipulate to the Certification, and was not
     provided with any documents indicating that such a hearing had
     taken place or the results thereof. ([Id. at 33-35]) [Appellant]
     was simply advised to gather his things and go home, and to
     make contact with the Pitt authorities regarding any
     requirements they might have for continuing as a student there.
     ([Id. at 33, 36, 43])

          The WPIC Inpatient Discharge Summary confirmed that
     [Appellant] was discharged on September 25, 2012, three days

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       after his admission to the facility. ([Docket Entry 1, Exhibit 8])
       The Summary further stated that [Appellant] “won his 303
       hearing on 9/25/12 after police who petitioned his 302 did not
       show up to hearing” and that he was “discharged to home with
       his parents after winning his 303 hearing on 9/25/12 after police
       did not show up for his 303 hearing.” The Summary ended with
       the statement that [Appellant] had a “[s]uperficial L wrist
       laceration - no treatment needed.” There was no indication in
       the Summary that [Appellant] was to engage in any sort of out-
       patient treatment of any kind.

Appellant’s Brief at 8-9.

       In effect, Appellant claims there was no valid section 303 commitment

at all.   He believes that “the 303 certification was merely a device for

accomplishing      the   immediate      release   of   [Appellant]   from   the   302

commitment while assuaging the liability concerns of UPMC and WPIC.”

Appellant’s Brief at 19.6

       Upon review of the certified record, I also question whether a valid 303

commitment was held and, if so, whether the certification was proper. At

the expungement hearing, Appellant testified that, although he spoke with a

public defender prior to his release from the hospital, he was unaware of any

303 commitment hearing held on September 25, 2012. N.T., 1/8/15, at 32-

33. All Appellant testified to was the fact that he “was told that there could

be a hearing.” Id. at 33 (emphasis added). In addition, my review of the

certified record reflects that, by happenstance, the public defender who
____________________________________________


6
  Although not raised as an issue on appeal, it does seem peculiar, if not an
oxymoron, that “outpatient treatment” can constitute “extended involuntary
emergency treatment” under section 303.



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signed Appellant’s 303 certification was present at the court house at the

time of Appellant’s expungement hearing and was asked to testify. Id. at

15-20. When called into the courtroom, the public defender stated that he

did not “specifically recall [Appellant].” Id. at 16. However, upon reviewing

the 303 commitment form, he acknowledged that Appellant did not

attend the 303 hearing. Id.

      Also, Sergeant Andrew Redman of the University of Pittsburgh Police

testified at Appellant’s expungement hearing. Sergeant Redman explained

that university police officers who file 302 petitions typically receive notices

of   303   commitment     hearings.     N.T.,   1/8/15,   at   54.    However,

Sergeant Redman stated that he did not appear at a 303 commitment

hearing for Appellant on September 25, 2012, and could not recall whether

he was ever informed that such a hearing for Appellant was being held.

N.T., 1/8/15, at 54-55.

      In addition, the certified record reflects that the 303 commitment

certification document specifies that Appellant did not attend the hearing.

The 303 commitment certification provides as follows:

      AND NOW, this 25TH day of September, 2012, a hearing having
      been held on a Petition of Extended involuntary Treatment of
      [Appellant], Respondent, under Section 303 of the Mental Health
      Procedures Act of 1976, as amended by Act 324 of 1978, the
      Respondent having been present and represented by the Office
      of Public Defender, upon consideration of the testimony of F.
      DePietro, MD., a physician on the staff of WPIC, your Mental
      Health Review Officer finds that the Respondent is severely
      mentally disabled and presents a clear and present danger to
      himself/herself or others; and certifies that he/she shall receive:

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                            PLEASE CHECK ONE

                           □ In Patient Treatment
                           □ Partial Hospitalization
                           □ Out-Patient Treatment [this box checked]
                           □ Combination of such treatment as the
                           director of the facility shall from time to
                           time determine.

      which is the least restrictive appropriate treatment for the
      Respondent at WPIC / Blair Co. MH Hospital, pursuant to the
      provisions of the Mental Health Procedures Act, for a period not
      to exceed Twenty (20) days from the date of this Certification.

                                    _______Robert Zunich__________
                                    MENTAL HEALTH REVIEW OFFICER

      Patient Attended YES ___ NO_X_

      Contested ______

      Uncontested: Voluntary _____

                  Stipulation __X_ _____E.S.__________
                              Patient’s Counsel’s signature required

      [Patient is A Resident of BLAIR County]

Docket Entry 1, Exhibit 7 (emphasis added).

      Appellant did not sign the 303 commitment certification.     Moreover,

the 303 commitment certification does not meet all of the requirements of

section 303(d). Of particular importance is the fact that there is no evidence

Appellant was ever notified of his right to appeal to the court of common

pleas under section 303(g) as required under section 303(d)(6). Likewise,

there is no evidence that Appellant was provided an explanation of his

continuing right to be represented by counsel as required under section


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303(d)(6).   In addition, there is no evidence that Appellant was served a

copy of the section 303 commitment certification as mandated under section

303(e). These failures amount to a deprivation of Appellant’s due process

rights. Therefore, in my view, Appellant should not be found to have waived

his right to appeal.

      A study of Appellant’s discharge summary from Western Psychiatric

Hospital causes further concern. Precisely, the following language from the

hospital’s discharge document results in my conclusion that Appellant was

not properly committed under section 303:

      HOSPITAL COURSE
      . . . He won his 303 hearing on 9/25/12 after police who
      petitioned his 302 did not show up to hearing.

                                   * * *

      DISCHARGE PLANNING
      [Appellant] discharged to home with his parents after winning
      his 303 hearing on 9/25/12 after police did not show up for his
      303 hearing.

Docket Entry 1, Exhibit 8 (emphases added).

      Accordingly, because my review of the certified record reflects that the

dictates of the MHPA mandating a valid 303 certification were not met, I am

compelled to respectfully dissent and conclude that, because Appellant’s due

process rights were violated, fundamental fairness requires that his 303

certification records be expunged.       Accordingly, I would vacate the

certification for involuntary treatment pursuant to section 303, and direct

that those records be expunged. In re Ryan, 784 A.2d at 807. Once that

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is accomplished, Appellant could then seek to expunge his section 302

commitment.




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