J-S74003-19

                                   2020 PA Super 54

    IN RE: P.M.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: P.M.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1707 EDA 2019

                  Appeal from the Order Entered May 28, 2019
     In the Court of Common Pleas of Chester County Civil Division at No(s):
                                  120 PMT 05


BEFORE:      BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*

OPINION BY BENDER, P.J.E.:                              FILED MARCH 06, 2020

        Appellant, P.M., appeals from the trial court’s May 28, 2019 order

denying his petition for expungement filed pursuant to 18 Pa.C.S. §

6111.1(g)(2), challenging the sufficiency of the evidence to support his

September 2005 involuntary commitment under 50 P.S. § 7302 (“Section

302”) of the Mental Health Procedures Act (“MHPA”).1 After careful review,

we agree with the trial court that a six-year statute of limitations applies to

petitions filed under Section 6111.1(g)(2). Because Appellant’s petition was

filed over 12 years after his Section 302 commitment, we affirm.

        Appellant’s appeal stems from the following facts.       In 2005, he was

involuntarily committed under Section 302.           After his release, he did not

challenge the commitment in any fashion. Nearly 13 years later, in August of

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*   Former Justice specially assigned to the Superior Court.

1   50 P.S. §§ 7101-7503.
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2017, Appellant was denied the purchase of a gun, as Pennsylvania law

prohibits a person who has been committed pursuant to Section 302 “from

possessing,     using,   controlling,    selling,   transferring,   manufacturing   or

obtaining a license to possess a firearm.”               18 Pa.C.S. § 6105(c)(4).

Consequently, on May 29, 2018, Appellant filed a petition to expunge the

record of his Section 302 commitment, naming the Pennsylvania State Police

(“PSP”) as the respondent, and averring that he was entitled to expungement

under 18 Pa.C.S. § 6111.1(g)(2).2 That provision states:

       (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 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).

18 Pa.C.S. § 6111.1(g)(2). “Section 6111.1(g)(2) provides one avenue to lift

the firearm restrictions that result from a [Section] 302 commitment.” In re

Vencil, 152 A.3d 235, 238 (Pa. 2017).

       On January 22, 2019, the trial court conducted a hearing on Appellant’s

petition.   At that proceeding, Appellant testified, and all of the available

medical records concerning his involuntary commitment were admitted.

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2 An amended version of Section 6111.1 took effect on June 20, 2016, but it
did not alter the text of Section 6111.1(g)(2). In re J.M.Y., 218 A.3d 404,
416 n.15 (Pa. 2019).



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Notably, the Application for Involuntary Emergency Examination and

Treatment was admitted, but “several parts of [that Section] 302 application

[were] entirely blank, including the patient’s rights (Part IV), [and] the

physician’s examination and results (Part VI).” Trial Court Opinion, 2/14/19,

at 4.

        On February 14, 2019, the court entered an order and opinion denying

Appellant’s petition for expungement. In pertinent part, the court concluded

that Appellant’s petition was filed beyond the applicable six-year statute of

limitations. Id. at 7. Alternatively, the court concluded that the doctrine of

laches barred relief for Appellant.         Id. at 6 (relying on A.M.M. v.

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

        Appellant thereafter filed a motion for reconsideration. After realizing

that a procedural error had occurred earlier in the proceedings, the court

granted reconsideration and vacated its February 14, 2019 order. The court

accepted new briefs from the parties and, on May 29, 2019, it issued a second

order and opinion, again denying Appellant’s petition for expungement for

essentially the same reasons as provided in its February 14, 2019 order and

opinion.

        Appellant filed a timely notice of appeal, and he also timely complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. The court subsequently filed a Rule 1925(a)

opinion, indicating that it was relying on the rationale set forth in its opinions

issued on February 14, 2019, and May 28, 2019. Herein, Appellant states

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three issues for our review, which we reproduce verbatim, although we have

reordered them for ease of disposition:

      1. Did the trial Court err and/or abuse its discretion by
      disregarding the superior equity power to disregard a statute of
      limitations where issues of laches, a nunc pro tunc violation and
      no notice to P.M. of any time limits that P.M. had to challenge the
      illegal involuntary commitment, and where P.M. used due
      diligence once P.M. discovered the consequences of the
      involuntary commitment clearly resulted in a violation of P.M.’s
      due process rights under the United States Constitution and that
      of the Commonwealth of Pennsylvania?

      2. Did the trial Court error and/or abuse its discretion by denying
      the petition of P.M. to have P.M. restoration of civil disabilities
      pursuant to 18 Pa.C.S. § 6111.1 after a hearing was held where
      there was insufficient evidence to prove that P.M. should have
      been involuntarily committed leading to the prohibition of P.M.’s
      constitutional right to the possession of firearms under the United
      States and Pennsylvania Constitution?

      3. Did the trial Court err and/or abuse its discretion by denying
      the petition of P.M. to have P.M.’s illegal involuntary commitment
      under 50 P.S. § 7302 void ab initio and the denial of P.M.’s
      constitutional rights to the possession of firearms under the United
      States and Pennsylvania Constitutions from an illegal commitment
      where such denial is for a lifetime?

Appellant’s Brief at 12-13.

      Preliminarily, we note that “[w]e review the trial court’s denial of a

motion for expunction for an abuse of its discretion[.]” A.M.M., 194 A.3d at

1117 (citing Commonwealth v. Smerconish, 112 A.3d 1260, 1263 (Pa.

Super. 2015) (citations omitted)).

      Here, in concluding that a six-year statute of limitations barred

Appellant’s petition to expunge, the trial court reasoned:




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             It is provided by statute, 42 Pa.C.S.[] § 5527(b), that “[a]ny
      civil action or proceeding which is neither subject to … another
      limitation specified in this subchapter nor excluded from the
      application of a period of limitation by [Section] 5531 (relating to
      no limitation) must be commenced within six (6) years.” The
      court considers the applicable statute of limitations therefore to
      be six (6) years in cases of this kind. Cf., … Vencil, … 152 A.3d
      [at 240 n.4]…. Consequently, this action should have commenced
      no later than 2011. [Appellant] contended that he did not learn
      of his disqualification until 2017[,] when he went to buy the gun.
      He thus invokes the discovery rule. However, no case [applying]
      the discovery rule in this context has been brought to this court’s
      attention. For this reason, the action is considered time barred.

Trial Court Opinion, 2/14/19, at 7.

      We discern no abuse of discretion in the court’s decision. We recognize

that neither our Supreme Court, nor this Court, has expressly held that a

statute of limitations applies to petitions filed under Section 6111.1(g)(2).

However, in Vencil, our Supreme Court characterized a Section 6111.1(g)(2)

action as a civil matter.    Vencil, 152 A.3d at 246 (concluding that the

appropriate standard of proof in assessing the sufficiency of the evidence

under Section 6111.1(g)(2) “is a preponderance of the evidence standard,

which is generally applicable to civil matters”). Consequently, under Section

5527(b), a six-year statute of limitations applies.        Our Supreme Court

suggested as much in Vencil, observing in dicta that, “[a]though almost a

decade had passed between Vencil’s 302 commitment and her request for

expungement, the PSP affirmatively waived consideration of the applicable

statute of limitations on actions commenced under [S]ection 6111.1(g)(2).”

Id. at 240 n.4.




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      Appellant correctly notes that after Vencil, this Court in A.M.M. chose

not to affirm the dismissal of A.M.M.’s petition to expunge — filed 17 years

after her involuntary commitment — based on the statute of limitations.

A.M.M., 194 A.3d at 1118. Instead, the A.M.M. panel noted that, “the MHPA

provides no statute of limitations for bringing a challenge to the sufficiency of

the evidence supporting the commitment[,]” and then affirmed the dismissal

of A.M.M.’s petition based on laches. Id. at 1118-19. According to Appellant,

“the absence of [any] consideration” of the statute of limitations in A.M.M.

“could have meant that the [C]ourt knew that the MHPA, 50 Pa.[C].S.[] §

7302[,] has no statute of limitations.” Appellant’s Brief at 57.

      However, regardless of what the A.M.M. panel ‘could have meant,’ it is

clear that this Court did not issue a precedential holding on the statute-of-

limitations issue. Rather, the panel side-stepped the question and decided

the case on laches.     Recently, another panel of this Court persuasively

concluded, in an unpublished decision, that the six-year statute of limitations

applies to petitions filed under Section 6111.1(g)(2). See In re Romano,

2020 WL 119653 (Pa. Super. Jan. 10, 2020).

      We are also unconvinced by Appellant’s cursory argument that applying

a statute of limitations “is a clear violation of the [d]ue [p]rocess [r]ights of

individuals to have their rights protected.” Appellant’s Brief at 46. In support

of this position, Appellant avers only that he was committed under Section

302 without his “rights [being] explained to him.” Id. at 47-48. In other




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words, Appellant focuses his due process argument on his Section 302

commitment. In Vencil, our Supreme Court stressed that,

      a Section 6111.1(g)(2) review is not a direct appeal from a 302
      commitment and the interest at stake under 6111.1(g)(2) is not
      one’s right to liberty. The infringement upon Vencil’s liberty
      occurred when she was involuntarily committed pursuant to
      [S]ection 302 of the MHPA. By the time a [S]ection 6111.1(g)(2)
      petition is filed, the liberty deprivation has ended. A sufficiency
      review pursuant to [S]ection 6111.1(g)(2) of the Uniform
      Firearms Act is merely a mechanism to expunge the PSP’s record
      of an individual’s 302 commitment to remove this barrier to his or
      her possession and control of firearms.

Vencil, 152 A.3d at 245 (footnote omitted).

      Additionally, the trial court correctly notes that Appellant “has and may

yet exercise a mechanism by which he can obtain relief from his state firearms

disability in the form of a due process hearing.” Trial Court Opinion, 5/28/19,

at 2; 18 Pa.C.S. § 6105(f)(1) (“Upon application to the court of common pleas

under this subsection by an applicant subject to the prohibitions under

subsection (c)(4) [(relating, inter alia, to a “person who has been …

involuntarily committed … under [S]ection 302” of the MHPA)], the court 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.”); see also Vencil, 152 A.3d at 246 n.10 (observing “that even if the

record of [Vencil’s] 302 commitment is not expunged, [S]ection 6105(f)(1) of

the Uniform Firearms Act provides another mechanism for her to obtain

reinstatement of her firearms rights, requiring only that the trial court find

that she can possess a firearm without risk of harm to herself or another”)


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(citing 18 Pa.C.S. § 6105(f)(1)). Thus, Appellant has failed to demonstrate

that his due process rights will be violated by the application of a statute of

limitations.

        In sum, we conclude that an expungement petition filed under 18

Pa.C.S. § 6111.1(g)(2) is a civil action that is subject to a six-year statute of

limitation pursuant to 42 Pa.C.S. § 5527(b).        Because Appellant filed his

expungement petition nearly 13 years after his involuntary commitment, the

court did not abuse its discretion by denying it. 3,4

        Order affirmed.




____________________________________________


3 We observe that Appellant does not assert, as he did below, that under the
“discovery rule,” the six-year statute of limitations was not triggered until he
actually discovered that he was unable to purchase a firearm. In any event,
we would reject this claim based on the persuasive reasoning in Romano,
where we explained:
        The “injury” at issue here is [the a]ppellant’s involuntary
        commitment. One consequence of this injury was the loss of [the
        a]ppellant’s right to possess a firearm.       After having been
        involuntarily committed, [the a]ppellant was obligated to discover
        any “reasonably knowable” conditions associated with that
        commitment. Fine [v. Checcio, 870 A.2d 850, 858 (Pa. 2005)
        (“The discovery rule originated in cases in which the injury or its
        cause was neither known or reasonably knowable.”) (citations
        omitted)]. [The a]ppellant 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.

Romano, 2020 WL 119653, at *3.

4   Given this disposition, we need not address Appellant’s remaining two issues.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/6/20




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