J-S36012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: TRACY D. SMITH                            IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA




APPEAL OF: TRACY D. SMITH

                                                       1372 WDA 2014


                   Appeal from the Order dated July 22, 2014
               In the Court of Common Pleas of Allegheny County
                     Orphans' Court at No.: Cc 2749 of 1997


BEFORE: PANELLA, J., JENKINS, J., and STRASSBURGER, J.∗

MEMORANDUM BY PANELLA, J.                              FILED JULY 21, 2015

        Appellant, Tracy D. Smith, appeals from the order of the Allegheny

County Court of Common Pleas denying his petition to expunge his civil

commitment record. We affirm.

        On July 29, 1997, Smith was involuntarily hospitalized under Section

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

commitment was extended twice after hearings pursuant to Sections 303

and 304(b) of the MHPA, and he did not appeal. The commitments prohibit

Smith from the possession, use, and control of a firearm in Pennsylvania.

See 18 Pa.C.S.A. § 6105(c)(4).



____________________________________________


∗
    Retired Senior Judge assigned to the Superior Court.
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        In 2011, Smith filed an application pursuant to Section 6105(f)(1)

seeking relief from the firearms prohibition.1 The Pennsylvania State Police

(“PSP”) was not served with the application.2            On April 28, 2011, the

Allegheny County Court of Common Pleas, per the Honorable Jeffrey

Manning, granted the requested relief, and directed the PSP to modify its

records in accordance with the order.            The certified record contains no

documents or docket entries showing that the trial court’s order was ever

sent to the PSP after its entry by the court. Smith never filed a motion to

compel the PSP’s compliance.

        In March 2014, after Smith’s attempt to purchase a gun was rejected

because of his civil commitment record, he filed a petition for expungement

with the Allegheny County Court of Common Pleas, serving both the PSP and

Allegheny County. Carlton Smith, Esquire, filed his appearance on behalf of



____________________________________________


1
    18 Pa.C.S.A. § 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.
2
  The application for relief was docketed in the Allegheny Court of Common
Pleas Criminal Division at miscellaneous docket number 1479-2011.
Pursuant to this Court’s order filed July 2, 2015, the certified record in 1479-
2911 has been made part of the record in this appeal.




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the PSP on April 8, 2014, and served Smith’s counsel with a copy of the

praecipe for appearance on the same day.3

       The Honorable John A. Zottola held a hearing on June 18, 2014, at

which Attorney Smith, joined by the Allegheny County Solicitor, John Molter,

Esquire, informed the court of statutory and case law that prohibited Smith

from challenging the sufficiency of the evidence that led to his Section 7302

and Section 7303 commitments. Smith testified on his own behalf.

       On July 22, 2014, Judge Zottola denied the motion for expungement,

concluding that it had no authority to remove the firearms restriction

imposed after commitment pursuant to Section 7303 or Section 7304. See

Trial Court Opinion, dated 3/6/15, at 4 (citing In re Jacobs, infra). Smith

timely appealed.

       Smith raises the following issue.

       Did the court of common pleas err when it denied Appellant’s
       petition for expungement, because the Pennsylvania State Police
       not only failed to appeal the order of April 28, 2011, but lacked
       standing to oppose the expungement?

Appellant’s Brief at 4.

       We review the denial of an expungement order for an abuse of

discretion. See In re Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013), appeal

denied, 101 A.3d 104 (Pa. 2014).

____________________________________________


3
  Although filed and served on April 8, 2014, Attorney Smith’s notice of
appearance did not appear on the docket until June 25, 2015.



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      18 Pa.C.S.A. § 6111.1(g), pertaining to expungement of mental health

records, provides as follows.

      (1) Upon receipt of a copy of the order of a court of competent
      jurisdiction which vacates a final order or an involuntary
      certification issued by a mental health review officer, the
      Pennsylvania State Police shall, after disclosing relevant records
      under subsection (f)(3), expunge all records of the involuntary
      treatment received under subsection (f).

      (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).

      (3) The Pennsylvania State Police, after disclosing relevant
      records under subsection (f)(3), shall expunge all records of an
      involuntary commitment of an individual who is discharged from
      a mental health facility based upon the initial review by the
      physician occurring within two hours of arrival under section
      302(b) of the Mental Health Procedures Act and the physician's
      determination that no severe mental disability existed pursuant
      to section 302(b) of the Mental Health Procedures Act. The
      physician shall provide signed confirmation of the determination
      of the lack of severe mental disability following the initial
      examination under section 302(b) of the Mental Health
      Procedures Act to the Pennsylvania State Police.

18 Pa.C.S.A. § 6111.1(g)(2) and (3) (internal footnote omitted).

      An expungement petition cannot go forward where an individual has

been committed under Sections 7303 or 7304. See In re Keyes, 84 A.3d

at 1024 (noting that the Court is “aware of no authority, statutory or

decisional, that provides for the expunction of a mental health commitment




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record where commitment was obtained pursuant to 50 P.S. § 7303.”). In

In Re Jacobs, 15 A.3d 509 (Pa. Super. 2011), this Court observed that

      18 Pa.C.S.A. § 6111.1(g) provides no opportunity to obtain
      expunction of mental health records pursuant to a commitment
      under § 7303.       This undoubtedly reflects the fact that
      commitment under § 7303 indicates a more serious mental
      problem, and the fact that commitment under § 7302 only
      requires a doctor’s determination, while commitment under §
      7303 imposes major due process requirements.

      Appellant had the opportunity … to appeal his commitment under
      § 7303 and he chose not to do so. The lower court had no
      jurisdiction under 18 Pa.C.S.A. § 6111.1(g) to review appellant’s
      commitment under § 7303. That statute only imbues the lower
      court with jurisdiction to review commitments under § 7302.

Id. at 510.

      Smith first argues that, “[w]ithout expressly stating as much, Judge

Manning’s Order required the State Police to expunge Appellant’s civil

commitment from its records.” Appellant’s Brief at 11. He observes that the

April 2011 order directed the State Police to modify its records and argues,

without citation to case law, that the “‘modification’ required by the order

could only be accomplished by expunging the commitment records.” Id. at

12.

      Smith’s averment has no merit. He filed his application for relief from

disability in 2011 pursuant to 18 Pa.C.S.A. § 6105(f)(1).     That section is

“intended solely for the restoration of the right to possess firearms, not for

the expunction of a record of involuntary commitment under the [Mental

Health Procedures Act].”    In re Keyes, 84 A.3d at 1022 (citing In re


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Jacobs, supra.)       Thus, contrary to Smith’s contention, Judge Manning’s

2011 order did not and could not act as an expunction order.

       Smith also avers that the PSP “functions merely as a repository for the

maintenance of records,” and “given its limited role in these matters …

suffers no harm from the issuance of an expungement order, and therefore

lacks standing to object to such an order.”      Appellant’s Brief at 13 (citing

Commonwealth v. J.H., 759 A.2d 1269, 1271 (Pa. 2000)).4

       We first note that Smith served the PSP with his expungement motion,

thus indicating his acknowledgment that the PSP would be a respondent in

the proceeding.      The PSP’s standing, thus, derives from its position as a

respondent. See Sammons v. Pennsylvania State Police, 931 A.2d 784,

787 n.8 (Pa. Cmwlth. 2007).

       Moreover, the certified record contains no document, transcript, or

docket entry indicating that Smith objected—at any time—to Attorney

Smith’s appearance. Significantly, during the June 18, 2014 hearing, Smith

did not object to Attorney Smith making a motion on behalf of the PSP and

Allegheny County.       We thus conclude that    Smith’s standing argument is
____________________________________________


4
  In J.H., supra, our Supreme Court held that the PSP may not challenge the
propriety of an expungement order under the Criminal History Record
Information Act (“CHRIA”), 18 Pa.C.S.A. §§ 9101–9114. J.H. is inapposite
here.    Smith has not raised CHRIA as a reason to challenge PSP’s
participation in his expungement hearing. In addition, unlike J.H., the PSP
here did not “challenge the underlying criteria forming the basis for common
pleas’ order, but common pleas’ jurisdiction to act.”          Sammons v.
Pennsylvania State Police, 931 A.2d 784, 787 n.8 (Pa. Cmwlth. 2007).



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waived.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); see also

Commonwealth v. Allen, 107 A.3d 709, 711 n.1 (Pa. 2011) (observing

that objections to standing are subject to waiver if not raised before the trial

court).

      Moreover, even if the PSP were not a respondent and even if Smith’s

argument were not waived, Smith’s challenge to the PSP’s standing is

without merit. The PSP has implicit standing when the removal of a Section

6105(c)(4) firearms prohibition is at issue. In In Re Expungements, 938

A.2d 1075 (Pa. Super. 2007), this Court observed that

      [w]hile the [PSP] is not explicitly granted standing in a
      proceeding pursuant to Section 6105(f)(1) to remove a disability
      imposed under Section 6105(c)(4), it has an implicit power to be
      a litigant in this type of proceeding [because] the legislature has
      statutorily conferred the [PSP] with responsibility and duties
      under several provisions of the Uniform Firearms Act. The State
      Police’s interest in these proceedings is linked to its ability to
      perform its administrative responsibilities under the Firearms Act
      and, more importantly, to ensure public safety and welfare by
      keeping firearms out of the hands of dangerous individuals.

      Accordingly, based upon the broad responsibilities and powers
      conferred upon it by the legislature, and its vital interest in
      protecting the safety of the citizens of the Commonwealth, it is a
      logical corollary that the [PSP] be granted standing to challenge
      an attempt to remove a Section 6105(c)(4) disability.

Id. at 1081-82.

      Based on the foregoing discussion, we conclude that the trial court did

not abuse its discretion in denying expunction of Smith’s commitment

records.

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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/21/2015




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