J-S56001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: ROBERT ROMANO                    :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: ROBERT ROMANO                :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 37 EDA 2019

            Appeal from the Order Entered November 26, 2018
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-MD-0001439-2016


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                     FILED JANUARY 10, 2020

      Appellant, Robert Romano, challenges the order entered in the

Philadelphia County Court of Common Pleas, dismissing his petition to

expunge his involuntary commitment record pursuant to the Mental Health

Procedures Act (“MHPA”), 50 P.S. § 7101 et seq. Appellant’s involuntary

commitments prevent him from possessing a firearm under 18 Pa.C.S.A. §

6111.1(g)(2). After careful consideration, we affirm.

      In February 2008 and September 2009, Appellant was involuntarily

committed to 120 hours of inpatient mental health treatment under Section

302 of the MHPA. On March 16, 2016, he filed a petition for expungement

under 18 Pa.C.S.A. § 6111.1(g)(2) and 18 Pa.C.S.A. § 6105(f)(2), in order to

obtain relief from the prohibition placed on him against possessing firearms.

Following a hearing, the trial court found that the petition under section
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6111.1(g)(2) was filed outside the six-year statute of limitations on civil

actions and dismissed it.

      Appellant filed a timely notice of appeal. This Court initially quashed the

appeal, finding that the order dismissing his petition did not dispose of all

claims, and remanded for the trial court’s evaluation of the section 6105(f)(2)

claim. The trial court held another evidentiary hearing, and determined

Appellant may carry a firearm under 18 Pa.C.S.A. § 6105(f)(1). However, the

court again denied relief on Appellant’s petition for expungement. Appellant

timely filed a notice of appeal, and this case is now properly before us.

      Appellant challenges the trial court’s determination that the statute of

limitations expired before he filed his petition. While Appellant acknowledges

that over six years elapsed between the last time he was involuntarily

committed and the time he filed his petition, he contends he was unaware of

the   continuing   legal    consequences    stemming     from   his   involuntary

commitment. He invokes the discovery rule in order to argue that the statute

of limitations should have begun to run only after he became aware of the

factual basis for challenging his commitments, rather than from the date of

the allegedly wrongful commitments themselves. We disagree.

      The Uniform Firearms Act bars a person involuntarily committed under

the MHPA from possessing or otherwise controlling firearms. See 18 Pa.C.S.A.

§ 6105(c)(4). For purposes of this appeal, it is undisputed that Appellant is

prohibited from possessing a firearm under section 6105(c)(4). He contends

that is entitled to relief under section 6111.1(g)(2).

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      Section 6111.1(g)(2) provides one avenue to lift the firearm
      restrictions that result from a 302 commitment. It states [that 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 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. A petition filed under this
      subsection shall toll the 60–day period set forth under section
      6105(a)(2).

In re Vencil, 152 A.3d at 238 (citation omitted). “We review the trial court’s

denial of a motion for expunction for an abuse of its discretion.” A.M.M. v.

Pennsylvania State Police, 194 A.3d 1114, 1117 (Pa. Super. 2018) (citation

omitted).

      To qualify for expunction under 6111.1(g)(2), Appellant must establish

that his involuntary commitment pursuant to the MHPA was based on

insufficient evidence. Appellant was involuntarily committed under 50 P.S. §

7302. Under section 7302, a person may be involuntarily committed if he “is

severely mentally disabled … and in need of immediate treatment.” “An

individual is severely mentally disabled if as a result of mental illness, his

capacity to exercise self-control, judgment and discretion in the conduct of his

affairs and social relations or to care for his own personal needs is so lessened

that he poses a clear and present danger of harm to others or to himself.” In

re Vencil, 152 A.3d at 237 (internal quotations and citation omitted). A

person poses a clear and present danger to himself where he:

      has acted in such manner as to evidence that he would be unable,
      without care, supervision and the continued assistance of others,

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      to satisfy his need for nourishment, personal or medical care,
      shelter, or self-protection and safety, and that there is a
      reasonable probability that death, serious bodily injury or serious
      physical debilitation would ensue within 30 days unless adequate
      treatment were afforded under this [Act.]

50 P.S. § 7301(b)(2)(i). This Court has held that, under the MHPA, discretion

lies with the fact finder to “determine whether the evidence supports a finding

by clear and convincing evidence that appellant posed a clear and present

danger of harm to others or himself.” In re Hancock, 719 A.2d 1053, 1058

(Pa. Super. 1998) (citation omitted).

      However, the trial court did not reach the substance of this issue.

Rather, the court determined that the statutory limitation period had expired

before Appellant filed his petition. The MHPA does not attach a specific statute

of limitations to its provisions. See 50 P.S. §§ 7101-7503. However, any civil

action or proceeding not subject to another limitation nor excluded from any

limitation must be commenced within six years of the date of injury. See 42

Pa.C.S.A. § 5527(b). The statute of limitations is an affirmative defense, which

may be waived. See Griffin v. Central Sprinkler Corp., 823 A.2d 191, 195

(Pa. Super. 2003).

      While our Court has not squarely addressed whether challenges to the

MHPA are subject to the six-year catchall statute of limitations, related

decisions provide some guidance pertinent to Appellant’s arguments. “The

discovery rule originated in cases in which the injury or its cause was neither

known nor reasonably knowable.” Fine v. Checcio, 870 A.2d 850, 858 (Pa.

2005) (citations omitted). In A.M.M. v. Pennsylvania State Police, a panel


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of this Court affirmed the trial court’s dismissal of the appellant’s petition for

expungement. See 194 A.3d at 1116. The appellant in A.M.M. also invoked

the discovery rule, which the panel rejected. See id., at 1118. The panel

ultimately found the claim, presented over seventeen years after she was

involuntarily committed, was barred by the equitable doctrine of laches given

that the appellant’s delay in filing her petition meant many records relevant

to her commitment had been destroyed in the intervening years. See id., at

1116.

        Here, Appellant acknowledges that his most recent involuntary

commitment occurred over six years before his petition was filed. See

Appellant’s Brief, at 10. Appellant does not contend he was somehow unaware

of his involuntary commitments when they occurred, in 2008 and again in

2009. He also does not maintain that the prohibition on his possession of

firearms was somehow undiscoverable at that time. Instead, he merely posits

that he did not become actually aware of this ban until 2011, when his

application to purchase a firearm was denied. He then waited until 2016, a

further five years, to contest the sufficiency of the evidence supporting his

involuntary    commitments,    and    to   request   their   expungement.     The

Pennsylvania State Police then raised the statute of limitations at the hearing

on expungement.

        The trial court held that “the knowledge of the commitment itself, not

the knowledge of disability from firearm possession, triggers the statute of




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limitations.” Trial Court Opinion, filed 4/1/19, at 9. We agree with the court’s

assessment.

      The “injury” at issue here is Appellant’s involuntary commitment. One

consequence of this injury was the loss of Appellant’s right to possess a

firearm. After having been involuntarily committed, Appellant was obligated

to discover any “reasonably knowable” conditions associated with that

commitment. Fine, 870 A.2d at 858. Appellant is presumed to know the law.

See Commonwealth v. Robertson, 186 A.3d 440, 446 (Pa. 2018).

Therefore, the firearm disability imposed by law as a result of his involuntary

commitment was reasonably knowable. As we cannot say the trial court

abused its discretion, we affirm the dismissal of Appellant’s petition for

expungement.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/20




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