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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: DANIEL MARONE         :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
APPEAL OF: DANIEL MARONE                :
                                        :         No. 3712 EDA 2015


                Appeal from the Order Dated November 4, 2015,
               in the Court of Common Pleas of Delaware County
                          Civil Division at No. 15-8638


BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 12, 2016

     Daniel Marone appeals from the November 4, 2015 order entered in

the Court of Common Pleas of Delaware County denying his petition to

appeal his commitment or, in the alternative, to appeal nunc pro tunc from

Section 7303 commitment of the Mental Health Procedures Act, 50 P.S.

§§ 7101-7503 (“MHPA”). We quash.

     The record reflects that on April 30, 2006, appellant sent his friend a

text message that indicated that appellant planned to commit suicide.

Thereafter, this friend found appellant at his residence with a loaded gun in

his lap. Police were summoned, and appellant was taken to a hospital. The

friend who witnessed appellant’s behavior applied for an involuntary

emergency treatment examination pursuant to the MHPA.         Appellant was

then involuntarily committed under MHPA Section 7302, which allows for an

involuntary emergency examination and treatment for a period not to



* Former Justice specially assigned to the Superior Court.
J. A19004/16


exceed 120 hours (five days).       Following an examination, Dr. Neil Cohn

recommended that appellant be involuntarily committed for ten days.

     The record further reflects that on May 2, 2006, Mental Health Review

Officer Eugene Bonner conducted a Section 7303 involuntary commitment

hearing, at which appellant was represented by Richard Lutz, Esq.

Dr. Theodore Barry testified at the hearing. Dr. Barry diagnosed appellant

as “bi polar.” The record further reveals that appellant waived his presence

at the hearing and agreed to undergo treatment.             Following the hearing,

Mental Health Review Officer Bonner found that appellant was severely

mentally disabled and in need of treatment and committed him to an

inpatient facility pursuant to MHPA Section 7303 for a period not to exceed

ten days.

     On October 2, 2015, more than nine years after his Section 7303

commitment     and   release,   appellant   filed   his   petition   to   appeal   his

commitment or, in the alternative, to appeal nunc pro tunc from

Section 7303 commitment of the MHPA in the Court of Common Pleas of

Delaware County. On November 4, 2015, the trial court entered an order

denying the petition as untimely. This timely appeal followed.

     Appellant raises the following issue for our review:

            DID THE LEARNED TRIAL JUDGE ERR IN
            DISMISSING [APPELLANT’S] PETITION TO APPEAL
            COMMITMENT OR IN THE ALTERNATIVE TO APPEAL
            NUNC PRO TUNC FROM SECTION [7]303 OF THE
            MENTAL HEALTH PROCEDURES ACT WITHOUT A
            HEARING THEREON?


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Appellant’s brief at 3.

      A person who is involuntarily committed under Section 7303 following

a hearing by a mental health review officer has the right to petition the court

of common pleas for review of the certification.         50 P.S. § 7303(g).

Section 7303(g), however, fails to address the time limitations for direct

appeal to the court of common pleas. Judicial Code Section 5571 sets forth

time limitations for taking appeals and applies generally to all proceedings

before a tribunal or governmental unit. 42 Pa.C.S.A. § 5571. Indeed, our

supreme court has observed that Section 5571(b) prescribes the period

within which an appeal must be taken for all appeals permitted by statute.

Appeal of Chartiers Valley Sch. Dist. from Assessment of Prop. of

Dev. Dimensions Intern., Inc., 462 A.2d 673, 674 (Pa. 1983). Because

MHPA Section 7303(g) is a statute that permits an appeal, 42 Pa.C.S.A.

§ 5571(b) sets forth the limitations period within which such an appeal must

be filed. Section 5571(b) requires that “an appeal from a tribunal or other

government unit to a court . . . must be commenced within 30 days after the

entry of the order from which the appeal is taken, in the case of an

interlocutory or final order.” Id.

      Here, the hearing officer certified appellant’s Section 7303 involuntary

commitment on May 2, 2006.           Therefore, appellant was required to

commence his appeal on or before June 1, 2006. Because appellant filed his

appeal on October 2, 2015, more than nine years after the hearing officer


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certified his Section 7303 involuntary commitment, appellant’s appeal is

time barred.

      Appellant alternatively claims, however, that he should be accorded

the right to appeal nunc pro tunc because counsel never advised of his

right to appeal. Our standard of review in this context is deferential and the

“denial of an appeal nunc pro tunc is within the discretion of the trial court,

and we will only reverse for an abuse of that discretion.”        Vietri ex rel.

Vietri v. Delaware Valley High Sch., 63 A.3d 1281, 1284 (Pa.Super.

2013).   “An abuse of discretion occurs when a trial court, in reaching its

conclusions, overrides or misapplies the law, or exercises judgment which is

manifestly unreasonable, or the result of partiality, prejudice, or ill will.” Id.

(citation omitted). An allowance of appeal nunc pro tunc is permitted when

there was fraud or a breakdown of court operations. Id. (citation omitted).

Moreover, a court may also grant nunc pro tunc relief where the appellant

demonstrates that “(1) his notice of appeal was filed late as a result of

nonnegligent circumstances, either as they relate to the appellant or the

appellant’s counsel; (2) he filed the notice of appeal shortly after the

expiration date; and (3) the appellee was not prejudiced by the delay.” Id.

(brackets and citation omitted).

      Here, appellant does not allege that there was a fraud or a breakdown

of court operations.   Appellant merely claims that counsel failed to inform

him of his right to appeal his Section 7303 commitment.          Even assuming



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that counsel failed to do so, appellant offers no explanation as to why it took

him in excess of nine years to learn of his appellate rights.           Stated

differently, appellant has failed to show that his failure to file his petition

shortly after the expiration of the limitations period was the result of

something other than his own negligence.         Accordingly, the trial court

properly denied appellant’s petition as untimely, and we are, therefore,

constrained to quash this appeal.

      Appeal quashed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2016




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