J-A28024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: A.V.                                   IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA




    APPEAL OF: A.V.

                                                      No. 212 EDA 2019


                  Appeal from the Order Entered December 19, 2018
                  In the Court of Common Pleas of Delaware County
                        Civil Division at No.: CV-2018-003006


BEFORE: STABILE, DUBOW, JJ., and COLINS, J.*

MEMORANDUM BY STABILE, J.:                           FILED MARCH 10, 2020

        Appellant A.V. appeals from the December 19, 2018 order of the Court

of Common Pleas of Delaware County (“trial court”), which denied his petition

for expungement of records relating to his involuntary commitment under

Section 7302 of the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7302

(“Section 302”). Upon review, we quash and remand for further proceedings.

        The facts and procedural history of this case are undisputed. On April

15, 2008, when Appellant was a fifteen-year-old high school student, he was

involuntarily committed to 120 hours of inpatient treatment under Section

302.     On July 1, 2017, following a Pennsylvania Instant Checks System

(“PICS”) background check, Appellant was denied the ability to purchase a .9

mm handgun under Section 6105 of the Pennsylvania Uniform Firearms Act of

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*   Retired Senior Judge assigned to the Superior Court.
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1995 (“UFA”), 18 Pa.C.S.A. § 6105. Section 6105, relating to persons not to

possess, use, manufacture, control, sell or transfer firearms provides in

pertinent part:

      (a) Offense defined.--

         (1) A person who has been convicted of an offense
         enumerated in subsection (b), within or without this
         Commonwealth, regardless of the length of sentence or
         whose conduct meets the criteria in subsection (c) shall not
         possess, use, control, sell, transfer or manufacture or obtain
         a license to possess, use, control, sell, transfer or
         manufacture a firearm in this Commonwealth.
       ....

      (c) Other persons.--In addition to any person who has been
      convicted of any offense listed under subsection (b), the following
      persons shall be subject to the prohibition of subsection (a):

       ....

         (4) A person who has been adjudicated as an incompetent
         or who has been involuntarily committed to a mental
         institution for inpatient care and treatment under section
         302, 303 or 304 of the provisions of the act of July 9, 1976
         (P.L. 817, No. 143) [(50 P.S. §§ 7302 to 7304)], known
         as the [MHPA]. This paragraph shall not apply to any
         proceeding under section 302 of the Mental Health
         Procedures Act unless the examining physician has issued a
         certification that inpatient care was necessary or that the
         person was committable.

18 Pa.C.S.A. § 6105(a) and (c)(4) (footnote omitted).

      On July 13, 2017, Appellant requested from Crozer Keystone Health

Systems (“Crozer”) his medical records relating to the April 2008 Section 302

commitment. On July 19, 2017, Crozer responded, informing Appellant that

“[t]hese records are no longer available as the statute of limitations has been




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reached per PA Department of Health 28 PA Code Section 115.23.” 1 Crozer

Letter, 7/19/17.

       On   April   20,   2018,     following    the   exhaustion   of   administrative

proceedings, Appellant petitioned the trial court for expungement of his

mental health records under Sections 6111.1(g)(2) and, in the alternative,

6105(f)(1) of the UFA, 18 Pa.C.S.A. §§ 6111.1(g)(2) and 6105(f)(1).

       Section 6111.1(g)(2) provides:

       A person who is involuntarily committed pursuant to section 302
       of the [MHPA] 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

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1 Section 115.23, relating to preservation of medical records, provides in
relevant part:
       (a) Medical records, whether original, reproductions or microfilm,
       shall be kept on file for a minimum of 7 years following the
       discharge of a patient.

       (b) If the patient is a minor, records shall be kept on file until
       his majority, and then for 7 years or as long as the records of
       adult patients are maintained.
28 Pa. Code § 115.23(a) and (b) (emphasis added). The plain language of
Section 115.23 reveals: (1) when a patient is an adult, his or her medical
records are required to be retained for a minimum of 7 years; (2) when a
patient is a minor, his or her medical records are required to be retained until
he or she reaches the age of majority and thereafter for a minimum of 7 years
consistent with subsection (a). Here, the evidence of record reveals that
Appellant, who was born on January 23, 1993, was a minor—fifteen years
old—when he was committed involuntarily in 2008. As a result, under Section
115.23(b), Crozer was required to keep his medical records until he turned 25
years old, i.e., until January 23, 2018. Troublingly, Crozer failed to do so.



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       Pennsylvania State Police be expunged.[2] A petition filed
       under this subsection shall toll the 60-day period set forth under
       section 6105(a)(2).

18 Pa.C.S.A. § 6111.1(g)(2) (footnote omitted) (emphasis added). Section

6105(f)(1) provides:

       Upon application to the court of common pleas under this
       subsection by an applicant subject to the prohibitions under
       subsection (c)(4), 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.

18 Pa.C.S.A. § 6105(f)(2).

       The trial court conducted multi-day hearings, following which it

concluded only that Appellant was not entitled to relief under Section

6111.1(g)(2). The trial court reasoned:

       [Appellant] failed to present any witnesses (other than himself) in
       support of the instant petition. [Appellant] did testify that in April
       2008, as a fifteen year old, he informed a teacher at Penncrest
       High School and physicians at [Crozer] in Upland, Pennsylvania
       [that] he threatened to intentionally injure both himself and his
       mother. As a result of these threats, [Appellant] was involuntarily
       committed on April 15, 2008. [Appellant] failed to present this
       [c]ourt with any medical records surrounding his April 15, 2008
       commitment. [Appellant failed to present or subpoena any
       records from the physician certifying necessity of involuntary
       commitment – Dr. Piechota.          Based upon the evidentiary
       admission made by [Appellant] during his testimony, this [c]ourt
       determined the certifying physician, Dr. Piechota, did have
       sufficient evidence to support the decision to involuntarily commit
       [Appellant] in April 2008.



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2 Whenever an individual is involuntarily committed under Section 302, a
judge on the courts of common pleas, a mental health review officer, or a
county mental health administrator must notify the PSP within seven days of
the individual’s commitment. See 50 P.S. § 7109(d).



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Trial Court Opinion, 11/21/19 at 4-5 (unnecessary capitalizations and citations

omitted).3    Appellant timely appealed.         Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

       On appeal,4 Appellant presents three issues for our view.

       [I.] Did the reviewing court commit reversible error when he
       denied [Appellant’s] petition for expunction, where there was no
       contemporaneously-created record of [Appellant’s] commitment
       presented by the PSP in response to [Appellant’s] verified petition
       and testimony at the evidentiary hearing?

       [II.]. Did the reviewing court commit reversible error by finding
       [Appellant] had failed to present the reviewing court with medical
       records, and to call witnesses, regarding [Appellant’s] involuntary
       commitment on April 15, 2008, as a basis for denying
       [Appellant’s] verified petition for expunction?

       [III.] Did the reviewing court commit reversible error by denying
       [Appellant’s] petition for expunction, where PSP did not produce
       a contemporaneously-created record of examination or findings
       by the committing physician that showed [Appellant] had posed a
       clear and present danger of harm to himself or others?

Appellant’s Brief at 4.




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3As the Commonwealth notes, the trial court neglected to rule upon its statute
of limitations argument based on Section 5527 of the Judicial Code, 42
Pa.C.S.A. § 5527 (“Any 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 years.”).
4 It is settled that we review the trial court’s denial of a motion for expunction
for an abuse of its discretion. Commonwealth v. Smerconish, 112 A.3d
1260, 1263 (Pa. Super. 2015) (citations omitted). However, questions of
evidentiary sufficiency “present pure questions of law, over which our
standard of review is de novo and our scope of review is plenary.” In re
Vencil, 152 A.3d 235, 241 (Pa. 2017). A petitioner seeking expungement
bears the burden of proving that “there was not sufficient evidence” to support
the commitment. Id. at 245.

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      Instantly, we are unable to reach the merits of Appellant’s claims

because the appeal is not properly before us. The appealability of an order

implicates this Court’s jurisdiction and we may “inquire at any time, sua

sponte, whether an order is appealable.” Bailey v. RAS Auto Body, Inc.,

85 A.3d 1064, 1067-68 (Pa. Super. 2014) (citation omitted); see LeFlar v.

Gulf Creek Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986) (noting a court

may raise the issue of subject matter jurisdiction at any time). It is well-

settled that “[u]nder Pennsylvania law, an appeal may only be taken from an

interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P.

341), from a collateral order (Pa.R.A.P. 313), or from any interlocutory order

by permission (Pa.R.A.P. 31[2], [Pa.R.A.P.] 1311, 42 Pa.C.S.A. § 702(b)).”

Cont’l Bank v. Andrew Bldg. Co., 648 A.2d 551, 553 (Pa. Super. 1994).

Here, there is no indication or suggestion that this is an appealable

interlocutory or collateral order.    Therefore, if appealable, it would be

appealable as a final order under Pennsylvania Rule of Appellate Procedure

341, which provides in relevant part that “an appeal may be taken as of right

from any final order of a government unit or trial court.” Pa.R.A.P. 341(a). A

final order is “any order that (1) disposes of all claims and of all parties; or

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

Pa.R.A.P. 341(b). Rule 341(c) provides:

      When more than one claim for relief is presented in an action, . . .
      the trial court or other government unit may enter a final order as
      to one or more but fewer than all of the claims and parties only
      upon an express determination that an immediate appeal would
      facilitate resolution of the entire case. Such an order becomes
      appealable when entered. In the absence of such a determination

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      and entry of a final order, any order or other form of decision that
      adjudicates fewer than all the claims and parties shall not
      constitute a final order.

Pa.R.A.P. 341(c). The Official Note to Rule 341 provides in relevant part:

      Paragraph (c) permits an immediate appeal from an order
      dismissing less than all claims or parties from a case only upon an
      express determination that an immediate appeal would facilitate
      resolution of the entire case. Factors to be considered under
      paragraph (c) include, but are not limited to:

      (1) whether there is a significant relationship between adjudicated
      and unadjudicated claims;

      (2) whether there is a possibility that an appeal would be mooted
      by further developments;

      (3) whether there is a possibility that the court or administrative
      agency will consider issues a second time; and

      (4) whether an immediate appeal will enhance prospects of
      settlement.

Pa.R.A.P. 341, Official Note.   A court “must consider all four factors when

making a determination of finality.”      Bailey, 85 A.3d at 1069 (citation

omitted).

      Here, the trial court’s December 19, 2018 order disposed of only one

claim—the    expungement     claim,   which   sought    relief   under   Section

6111.1(g)(2). The order, however, did not address whether Appellant was

entitled to relief from the firearms prohibition under to Section 6105(f)(1).

Further, although the parties and the court may have intended to make the

order a final order, the trial court did not consider the required factors for a

finding of finality, and no express determination that an immediate appeal

would facilitate resolution of the entire case appears in the record. Therefore,

because the December 18, 2018 order did not dispose of all claims and the



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trial court did not make a determination of finality, the order is not a final

order and we may not review it.     Accordingly, we quash this appeal, and

remand this case for further proceedings consistent with this memorandum.

     Appeal quashed. Case remanded. Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/10/20




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