J-S40041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.B., A MINOR             IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: T.B.

                                                   No. 141 MDA 2014


                  Appeal from the Order January 8, 2014
             In the Court of Common Pleas of Schuylkill County
            Juvenile Division at No(s): CP-54-JV-0001904-2004
                                        CP-54-JV-0001944-2004


BEFORE: BENDER, P.J.E., BOWES, and PANELLA, JJ.

MEMORANDUM BY PANELLA, J.:                   FILED SEPTEMBER 15, 2014

     Appellant, T.B., appeals from the order entered on January 8, 2014, in

the Court of Common Pleas of Schuylkill County. After careful review, we

quash.

     The factual background and procedural posture of this case is

multifaceted. Of relevance to this appeal is the following. T.B. was

adjudicated delinquent for a myriad of sexual related offenses in July 2004.

The juvenile court, in imposing its dispositional order, committed T.B. to



twentieth birthday on July 9, 2011, the State Sexual Offenders Assessment



PA.CONS.STAT.ANN. § 6358, the SOAB conducted an assessment to determine

whether T.B. was in need of commitment for involuntary treatment due to a
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mental abnormality. See 42 PA.CONS.STAT.ANN. § 6358(c). The SOAB



Probation    Department    as     permitted    by     42   Pa.Cons.Stat.Ann.      §

6307(a)(6.04). The probation department had in its possession mental

health records containing communications that T.B. made to mental health

professionals during the course of his treatment at Adelphoi Village and

Southwood Psychiatric Hospital.

       On September 26, 2011, T.B. received the completed assessment of

the SOAB, dated August 25, 2011. At that time, he became aware that

materials that he believed to be privileged were disseminated by the

probation department to the SOAB assessor, Dr. Veronique Valliere, and that

she relied upon confidential records in rendering her conclusions.

       On October 6, 2011, T.B. filed a motion to strike the results of the

SOAB     assessment   because     it   was   based,   in   part,   on   confidential

communications and disclosures made by the juvenile during the treatment

process. T.B. sought a redaction of a twenty-five-page list of disclosures.

The ju

appeal was docketed at 1835 MDA 2011. On December 1, 2011, the

Commonwealth filed a motion to quash the appeal as interlocutory. That

motion was granted on April 12, 2012; however, our Supreme Court granted

allowance of appeal, vacated the order quashing the appeal, and remanded

the matter back to this Court to reconsider the matter in light of its decision

in Commonwealth v. Harris, 612 Pa. 576, 32 A.3d 243 (2011). During the

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pendency of the appeal, civil commitment proceedings continued against

T.B. in the juvenile court.

      On January 19, 2012, the Commonwealth initiated civil commitment

proceedings against T.B. pursuant to PA.CONS.STAT.ANN. § 6403(a) and (b). A

hearing was conducted and, on March 1, 2012, T.B. was civilly committed to

Torrance State Hospital. T.B. filed an appeal from the commitment order. In

the appeal, docketed at 534 MDA 2012, T.B. again contested the use of

confidential mental health records in connection with the SOAB assessment

for purposes of determining whether he should be committed under the

dictates of § 6403. This Court consolidated the appeals.

      A panel of this Court determined that statements of a juvenile made to

a mental health professional while in treatment remain privileged under the

psychotherapist-patient privilege and may be released to SOAB only with the

                              See In the Interest of T.B., A Minor, 75 A.3d

485, 496 (Pa. Super. 2013). As such, the panel vacated the orders of the

juvenile court entered on October 19, 2011 and March 1, 2012 and

remanded the matter to the juvenile court for a hearing and findings of fact

to determine whether the statements, evaluations and summaries at issue

were completed for treatment purposes. The panel further determined that



summaries were made for treatment purposes and the juvenile was not

represented by counsel and informed of his right against self-incrimination,

the court shall vacate the determination of the SOAB and may re-submit the

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See id., at 497. As such, the order of March 1, 2012, for involuntary

commitment, that was vacated, became a nullity upon remand thereby

necessitating that any involuntary commitment proceedings begin anew.

     Upon remand, the parties agreed to a redaction of the information

provided to   the   SOAB as it contained statements, evaluations and

summaries for treatment purposes. The records were jointly redacted and a

new assessment was conducted by Robert Stein, Ph.D. of the SOAB on

September 13, 2013, utilizing the redacted records with no treatment notes

included.

     On January 6, 2014, the juvenile court held a dispositional review

hearing based upon the new assessment of the SOAB that T.B. is in need of

involuntary   treatment.   At   the    dispositional   review   hearing,   the

Commonwealth presented the testimony of Dr. Stein of the SOAB who

performed the assessment. See N.T., Hearing, 1/6/14, at 7. Dr. Stein

testified that T.B. has a number of psychiatric difficulties, and based upon

his assessment, T.B. suffers from a mental abnormality. See id., at 7, 16.

Dr. Stein opined that T.B. would meet the criteria for an Act 21 commitment.

See id

established a prima facie case that [T.B.] has a mental abnormality which

                                                          Id., at 27.

     The Commonwealth then requested that the juvenile court move

forward to a civil commitment hearing on its petition filed on January 19,

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2012. See id., at 26. The juvenile court then elected to convert the

dispositional review hearing into a court-ordered involuntary commitment

hearing, pursuant to 42 PA.CONS.STAT.ANN. § 6403. In so doing, the juvenile

                                                                  Id., at 27.

The Commonwealth offered the same evidence and, T.B. presented Timothy

P. Foley, Ph.D. See id., at 28. At the conclusion of the hearing, the juvenile

court took the matter under advisement and noted a decision would be

forthcoming.

      The juvenile court subsequently issued an order, which provides as

follows:

      AND NOW, this 8th day of January, 2014, at 10:00 a.m., having
      found a prima facie case that T.B. is in need of involuntary
      treatment, the County Solicitor is hereby directed to file a
      petition to initiate proceedings for his civil commitment pursuant
      to 42 P.S. § 6403.

Order, 1/8/14, at 1.

      In its accompanying opinion, the juvenile court explained its rationale

for its decision. Particularly noteworthy to this appeal is the following

language:

      This court finds that a prima facie case has been made that T.B.
      was in need of involuntary treatment in 2011; however, we are
      not prepared to grant a petition for civil commitment without
                                                                     -
      and-one-half-years.

      The parties felt they were limited to the record of his treatment
      up to May of 2011, when he was still 20 years old and subject to
      evaluation under Act 21. Since the instant proceedings are an
      extension, after remand, of the original evaluation pursuant to
      Act 21, it may be proper to evaluate a prima facie case based on

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     the records as they existed when T.B. was twenty years old, but
     no reasonable determination of his need for continual
     involuntary treatment can be made without knowledge of what
     has happened since in his treatment.


     the disposition review with a commitment proceeding. We have
     determined that there is a prima facie case that T.B. requires
     further involuntary treatment. Now a new petition for civil
     commitment should be file by the county solicitor and a full
     hearing be conducted. The parties may decide to incorporate at
     that hearing the testimony offered in their proceeding, but there
     can be no complete hearing without evidence of what has
     transpired since 2011.

Juvenile Court Opinion, 1/8/14, at 4 (emphasis added). This appeal followed.

     On appeal, T.B. raises the following issue for our review:

     A. Whether the Order of the Honorable Judge Baldwin directing
        the Schuylkill County solicitor to file a petition for civil
        commitment pursuant to 42 P.S. Section 6403 should be
        stricken because it improperly granted a new trial in the
        nature of a civil commitment hearing sue esponte [sic], where
        there was no error of law and without a request by the
        parties, against the stipulation of the parties, after a finding
        made by the judge from the bench during the proceedings of
        a prima facie case and allowing the parties to proceed with
        and present all of their evidence for the civil commitment
        hearing?

     B. Whether the opinion calls for evidence which is outside of the
        contemplation of the statute and violates the strict time limits
        set by the statute and would create an evidentiary record
        unlike any other person subject to Act 21 Civil Commitment
        Proceedings.




     Before we address the issues raised by T.B., we must determine

whether the January




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                                                                             In

re Miscin, 885 A.2d 558, 561 (Pa. Super. 2005) (citations omitted). The

definition of a final order is provided in Rule 341 of the Pennsylvania Rules of



                  Prelude, Inc. v. Jorcyk, 695 A.2d 422, 424 (Pa. Super.

1997) (en banc). Rule 341 provides as follows:

      Rule 341. Final Orders; Generally

      (a)   General rule. Except as prescribed in subdivisions (d),
            and (e) of this rule, an appeal may be taken as of right
            from any final order of an administrative agency or lower
            court.

      (b)   Definition of final order. A final order is any order that:

            (1)    disposes of all claims and of all parties; or

            (2)    is expressly defined as a final order by statute; or

            (3)    is entered as a final order pursuant to subdivision (c)
                   of this rule.

Pa.R.A.P. 341.

      The order in question is not a final order as defined by Rule 341(b).

The order simply makes a finding that the Commonwealth made a prima

facie case that T.B. is in need of involuntary treatment and directs the

county solicitor to file a petition to initiate proceedings for his civil

commitment pursuant to 42 P.S. § 6403. See Order, 1/8/14. It is not an

order for court-order involuntary commitment which would constitute a final

order.




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       Rather, the order was entered by the juvenile court in accordance with

§ 6403. Und




PA.CONS.STAT.ANN. § 6403(b). Only after the petition is filed can the court set

a date for the civil commitment hearing and subsequently make a finding by



which results in serious difficulty in controlling sexually violent behavior that




                                                 PA.CONS.STAT.ANN. § 6403(d). It is

apparent that no such final disposition or commitment was ordered by the

juvenile court in its January 8, 2014 order. As such, we are constrained to
                                           1



       Appeal quashed.

       Bender, P.J.E. joins the memorandum.


____________________________________________


1
                        appeal does not fall under the confines of Pa.R.A.P.
311, related to interlocutory appeals as of right or Pa.R.A.P. 312, related to
interlocutory appeals by permission. Likewise, the order is not a collateral
                                                 n order separable from and
collateral to the main cause of action where the right involved is too
important to be denied review and the question presented is such that if
review is postponed until final judgment in the case, the claim will be
irreparably l



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J-S40041-14




           Bowes, J. files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2014




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