J-S49013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: G.E.S., PATIENT                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 419 MDA 2018

                Appeal from the Order Entered February 6, 2018
      In the Court of Common Pleas of York County Civil Division at No(s):
                               2018-MH-000025


BEFORE:      SHOGAN, J., STABILE, J., and STEVENS*, P.J.E.

MEMORANDUM BY SHOGAN, J.:                             FILED OCTOBER 30, 2018

       Appellant, G.E.S.,1 appeals from the order denying her petition for

review filed under 50 P.S. § 7109(b) of the Mental Health Procedures Act

(“MHPA”), 50 P.S. § 7101, et seq., after she was involuntarily committed for

treatment pursuant to 50 P.S. § 7303 (“Section 303”). After careful review,

we affirm.

       The record reveals that on January 24, 2018, Pennsylvania State Police

Trooper Cory Heimbach responded to G.E.S.’s house for a welfare check.

Section 303 Hearing Transcript, 1/26/18, at 6.          When Trooper Heimbach

arrived, he discovered G.E.S. sitting unresponsive in a bathtub with a


____________________________________________


1   The appellee in this matter is the Mental Health-Intellectual and
Developmental Disabilities Program of York and Adams County (hereinafter
“Appellee”).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S49013-18


laceration to the inside of her left thigh. Id. Trooper Heimbach eventually

was able to wake G.E.S., but she was upset that the Trooper was there and

expressed a desire to end her life. Id. at 7. Trooper Heimbach had G.E.S.

transported to the hospital. Id.

      Because of G.E.S.’s attempted suicide, Trooper Heimbach filed a petition

to involuntarily commit G.E.S. pursuant to 50 P.S. § 7302 (“Section 302”) for

a period lasting no more than 120 hours. Section 302 Petition, 1/24/18, at 2-

3.   G.E.S. was involuntarily committed under Section 302 for medical and

psychological evaluations. Id. at 7.

      The Mental Health, Intellectual, and Developmental Disabilities Program

of York and Adams County (hereinafter “Appellee”), sought to continue

G.E.S.’s involuntary inpatient care pursuant to Section 303. On January 26,

2018, a Section 303 hearing was held before York County Mental Health

Review Officer, Victor A. Neubaum, Esquire. At the hearing, Stephen Dilts,

M.D., G.E.S.’s physician and psychiatrist at the hospital, testified that G.E.S.

told him that she had cut her thigh in a suicide attempt. Section 303 Hearing

Transcript, 1/26/18, at 1. Dr. Dilts further stated that G.E.S. informed him

that she intended to die, and he concluded that G.E.S.’s wound was potentially

life threatening. Id. at 2-3. Following an examination, Dr. Dilts recommended

involuntary inpatient care for a period not to exceed twenty days. Id. at 2.

      After review, the Mental Health Review Officer found that there was clear

and convincing evidence that G.E.S. met the statutory requirements for


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involuntary commitment, and G.E.S. was involuntarily committed. On Friday,

February 2, 2018, G.E.S. filed a petition for review in the trial court. The trial

court reviewed the audio recording of the January 26, 2018 Section 303

hearing, and on February 6, 2018, the trial court denied G.E.S.’s petition for

review. This timely appeal followed. G.E.S. and the trial court have complied

with Pa.R.A.P. 1925.

       On appeal, G.E.S. raises the following issues for this Court’s

consideration:

       1. Whether insufficient evidence was presented at the mental
       health review hearing to conclude that [G.E.S.] was severely
       mentally disabled as the hospital failed to prove by a clear and
       convincing evidence that [G.E.S.] suffered from a severe mental
       illness.

       2. Whether insufficient evidence was presented at the mental
       health review hearing to conclude that [G.E.S.] was severely
       mentally disabled as the hospital failed to prove by clear and
       convincing evidence that [G.E.S.] attempted suicide, made
       threats of suicide, committed acts in furtherance of those threats
       or that she had a reasonable probability of suicide.

       3. Whether the [l]ower court’s order for involuntary treatment
       should be dismissed and [G.E.S.] should be discharged because
       the record does not support that the hearing and review of the
       recording on [G.E.S.’s] Petition for Review was commenced within
       seventy-two (72) hours of the filing of the Petition.

G.E.S.’s Brief at 5.2

       The standard necessary for an order for emergency involuntary

treatment under Section 303 is clear and convincing evidence that a person is


____________________________________________


2   We have renumbered G.E.S.’s issues for purposes of our disposition.

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severely mentally disabled. In re Hancock, 719 A.2d 1053, 1055 (Pa. Super.

1998). “Severely mentally disabled” is defined, in relevant part, as follows:

      (a) Persons Subject.-Whenever a person is severely mentally
      disabled and in need of immediate treatment, he may be made
      subject to involuntary emergency examination and treatment. A
      person is severely mentally disabled when, as a result of mental
      illness, his capacity to exercise self-control, judgment and
      discretion in the conduct of his affairs and social relations or to
      care for his own personal needs is so lessened that he poses a
      clear and present danger of harm to others or to himself.

      (b) Determination of Clear and Present Danger.-(1) Clear
      and present danger to others shall be shown by establishing that
      within the past 30 days the person has inflicted or attempted to
      inflict serious bodily harm on another and that there is a
      reasonable probability that such conduct will be repeated. If,
      however, the person has been found incompetent to be tried or
      has been acquitted by reason of lack of criminal responsibility on
      charges arising from conduct involving infliction of or attempt to
      inflict substantial bodily harm on another, such 30-day limitation
      shall not apply so long as an application for examination and
      treatment is filed within 30 days after the date of such
      determination or verdict. In such case, a clear and present danger
      to others may be shown by establishing that the conduct charged
      in the criminal proceeding did occur, and that there is a reasonable
      probability that such conduct will be repeated. For the purpose of
      this section, a clear and present danger of harm to others may be
      demonstrated by proof that the person has made threats of harm
      and has committed acts in furtherance of the threat to commit
      harm.

      (2) Clear and present danger to himself shall be shown by
      establishing that within the past 30 days:

            (i) the person has acted in such manner as to evidence
            that he would be unable, without care, supervision
            and the continued assistance of others, to satisfy his
            need for nourishment, personal or medical care,
            shelter, or self-protection and safety, and that there
            is a reasonable probability that death, serious bodily
            injury or serious physical debilitation would ensue


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           within 30 days unless adequate treatment were
           afforded under this act; or

           (ii) the person has attempted suicide and that
           there is the reasonable probability of suicide unless
           adequate treatment is afforded under this act. For
           the purposes of this subsection, a clear and
           present danger may be demonstrated by the
           proof that the person has made threats to
           commit suicide and has committed acts which
           are in furtherance of the threat to commit
           suicide; or

           (iii) the person has substantially mutilated himself or
           attempted to mutilate himself substantially and that
           there is the reasonable probability of mutilation unless
           adequate treatment is afforded under this act. For the
           purposes of this subsection, a clear and present
           danger shall be established by proof that the person
           has made threats to commit mutilation and has
           committed acts which are in furtherance of the threat
           to commit mutilation.

50 P.S. § 7301 (emphases added). Moreover,

     (a) Persons for Whom Application May be Made.--(1) A
     person who is severely mentally disabled and in need of
     treatment, as defined in section 301(a), may be made subject to
     court-ordered involuntary treatment upon a determination of clear
     and present danger under section 301(b)(1) (serious bodily harm
     to others), or section 301(b)(2)(i) (inability to care for himself,
     creating a danger of death or serious harm to himself), or
     301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self-
     mutilation).

     (2) Where a petition is filed for a person already subject to
     involuntary treatment, it shall be sufficient to represent, and upon
     hearing to reestablish, that the conduct originally required by
     section 301 in fact occurred, and that his condition continues to
     evidence a clear and present danger to himself or others. In such
     event, it shall not be necessary to show the reoccurrence of
     dangerous conduct, either harmful or debilitating, within the past
     30 days.


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                                     * * *

      (f) Determination and Order.--Upon a finding by clear and
      convincing evidence that the person is severely mentally
      disabled and in need of treatment and subject to subsection (a),
      an order shall be entered directing treatment of the person in an
      approved facility as an inpatient or an outpatient, or a combination
      of such treatment as the director of the facility shall from time to
      time determine. Inpatient treatment shall be deemed appropriate
      only after full consideration has been given to less restrictive
      alternatives. Investigation of treatment alternatives shall include
      consideration of the person’s relationship to his community and
      family, his employment possibilities, all available community
      resources, and guardianship services. An order for inpatient
      treatment shall include findings on this issue.

50 P.S. § 7304(a) and (f) (emphasis added) (internal footnote omitted).

      The burden is on the petitioner to “prove the requisite statutory grounds

by clear and convincing evidence.” In re S.M., 176 A.3d 927, 937 (Pa. Super.

2017) (citation omitted).      “Our Supreme Court has defined clear and

convincing evidence as testimony that is so clear, direct, weighty, and

convincing as to enable the trier of fact to come to a clear conviction, without

hesitation, of the truth of the precise facts in issue. Id. (internal citation and

quotation marks omitted). “In all cases in which the hearing was conducted

by a mental health review officer, a person made subject to treatment

pursuant to this section shall have the right to petition the court of common

pleas for review of the certification. A hearing shall be held within 72 hours

after the petition is filed unless a continuance is requested by the person’s

counsel.” 50 P.S. § 7303(g).




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       In G.E.S.’s first two issues, she avers that the evidence was not

sufficient to establish that she was severely mentally disabled and that she

had attempted suicide.     After review, we conclude that there was ample

evidence establishing these factors.

       As noted above, Trooper Heimbach testified that when he discovered

G.E.S., she was sitting in a bathtub and was unresponsive with a self-inflicted

razor cut to her upper thigh. She informed the Trooper that she wanted to

die.   Section 303 Hearing Transcript, 1/26/18, at 6-7.       After G.E.S. was

transported to the hospital, Dr. Dilts examined her and spoke to her about her

physical and mental health. Dr. Dilts testified that G.E.S. suffered from Major

Depression, she cut her thigh in an attempt to commit suicide, and her wound

was potentially life threatening.   Id. at 1-3.   Dr. Dilts stated that G.E.S.

informed him that it was her desire to die and that, with the loss of her farm

imminent, she had no reason to live. Id.

       G.E.S. asserts that Dr. Dilts’s diagnosis of Major Depression did not

satisfy fully the definition of Major Depression or Major Depressive Disorder

set forth in the Diagnostic and Statistical Manual of Mental Health Disorders,

Fifth Edition (“DSM-5”). G.E.S.’s Brief at 20. However, G.E.S. fails to cite any

authority that a diagnosis of Major Depression requires the physician to

conclude that every DSM-5 criteria is satisfied. As Appellee points out, DSM-

5 is not a simple checklist of specific standards used to diagnose mental health

disorders; rather, it provides only guidance to physicians. Appellee’s Brief at


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14-15. Evidence of the fallacy in G.E.S.’s claim is illustrated in the “Use of the

Manual” section of DSM-5, which provides as follows:

      The primary purpose of DSM-5 is to assist trained clinicians in the
      diagnosis of their patients’ mental disorders as part of a case
      formulation assessment that leads to a fully informed treatment
      plan for each individual. The symptoms contained in the
      respective diagnostic criteria sets do not constitute
      comprehensive definitions of underlying disorders, which
      encompass cognitive, emotional, behavioral, and physiological
      processes that are far more complex than can be described in
      these brief summaries. Rather, they are intended to summarize
      characteristic syndromes of signs and symptoms that point to an
      underlying disorder with a characteristic developmental history,
      biological and environmental risk factors, neuropsychological and
      physiological correlates, and typical clinical course.

American Psychiatric Association, Diagnostic and Statistical Manual of Mental

Disorders, Use of the Manual (5th ed. 2013) (emphasis added).

      Accordingly, although Dr. Dilts did not testify that G.E.S. satisfied every

symptom of Major Depression set forth in the DSM-5, he did unequivocally

diagnose her as having Major Depression based on his observations and the

information G.E.S. provided. Section 303 Hearing Transcript, 1/26/18, at 1-

3. We discern no error in the trial court’s conclusion that Dr. Dilts’s testimony

was sufficient to support a diagnosis of a severe mental illness, G.E.S. was a

clear and present danger to herself, and continued involuntary inpatient

treatment was necessary. Trial Court Opinion, 5/8/18, at 2. After review, we

find the trial court’s conclusion is supported by clear and convincing evidence.

50 P.S. §§ 7301 and 7304.




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      In her final issue, G.E.S. avers that the order disposing of her petition

for review was not entered until four days after the Section 303 involuntary

commitment order was entered. G.E.S.’s Brief at 12. As set forth above,

generally, a hearing on a petition for review must be held within seventy-two

hours after the petition is filed. 50 P.S. § 7303(g). Here, G.E.S. points out

that the petition was filed on February 2, 2018, and “it is not clear from the

record” when a hearing to review the commitment commenced. G.E.S.’s Brief

at 13. G.E.S. avers that this alleged delay should result in dismissal of the

commitment order. Id. at 15.

      The trial court addressed this issue as follows:

      [G.E.S.] complains that a hearing or review of the recording was
      not done within seventy-two (72) hours after she petitioned the
      [c]ourt for review of the order subjecting her to treatment and, as
      a consequence, her commitment should be vacated and the
      hospital records expunged, citing 50 P.S. 7109(b) & 7303; In re
      S.O., 492 A.2d 727, 342 Pa. Super. 215 (1985); In re J.K., 595
      A.2d 1287, 407 Pa. Super. 559 (1991); In re Ryan, 784 A.2d
      [803] at 805, 2001 Pa. Super 28[8 (2001)].

           The procedural background of the case is as follows (see
      docket):

      1. January 26, 2018. York Hospital filed an Application for
      Extended Involuntary Treatment.

      2. January 31, 2018. An Order for Extended Involuntary
      Emergency Treatment—Section 303 was filed, continuing
      involuntary inpatient care and treatment for a period not to
      exceed 20 days.

      3. February 2, 2018. [G.E.S.] filed a Petition for Review of Mental
      Health Commitment, stating at paragraph 5, “Petitioner will rely
      upon the taped testimony of the hearing and will not be present.”
      The petition was filed on Friday at 1:22 p.m.

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     4. February [5], 2018. The [c]ourt entered an Order, denying the
     petition for review. The Order was filed … Tuesday[, February 6,
     2018,] at 4:13 p.m.1

          1 To the best of the [c]ourt’s recollection, it attempted
          to review the audio recording of the hearing
          conducted on January 26, 2018 on Monday,
          February 5, 2018, but the audiotape would not play in
          the [c]ourt’s digital voice recorder, requiring the
          [c]ourt to secure another audiotape from the mental
          health review officer on Tuesday.

     The implicated statutes provide as follows:

          (b) In all cases in which the hearing is conducted by a
          mental health review officer, a person made subject
          to treatment shall have the right to petition the court
          of common pleas for review of the certification. A
          hearing shall be held within 72 hours after the petition
          is filed unless a continuance is requested by the
          person’s counsel.

     50 P.S. 7109(b).

          (g) Petition to Common Pleas Court-In all cases in
          which the hearing was conducted by a mental health
          review officer, a person made subject to treatment
          pursuant to this section shall have the right to petition
          the court of common pleas for review of the
          certification. A hearing shall be held within 72 hours
          after the petition is filed unless a continuance is
          requested by the person’s counsel. The hearing shall
          include a review of the certification and such evidence
          as the court may receive or require. If the court
          determines that further involuntary treatment is
          necessary and that the procedures prescribed by this
          act have been followed, it shall deny the petition.
          Otherwise, the person shall be discharged.

     50 P.S. 7303(g).

           The Court also points out the additional language set forth
     in the rules governing commitments of 90 days or less, which
     provides:

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           (e) Hearings of Petition for Court-order Involuntary
           Treatment. --A hearing on a petition for court-ordered
           involuntary treatment shall be conducted according to
           the following:

                 (7) A decision shall be rendered within 48
                 hours after the close of evidence.

     50 P.S. § 7304(e)(7).

           The case sub judice is distinguishable from In re S.O., In re
     J.K., and In re Ryan as the patient herein waived the review
     hearing, choosing to rely solely on the audio recording instead.

            In S.O., the appellant[’s] hearings on the petitions for
     review were held 52 and 36 days after the petitions were filed as
     opposed to within 72 hours. In re S.O., 342 Pa. Super. at 228. In
     J.K., the trial court scheduled a hearing seven days later outside
     the 72 hour period. In re J.K., 407 Pa.Super, at 560. In Ryan,
     the trial court scheduled a hearing eleven days later. In re Ryan,
     784 A.2d at 805. In each ease, the appellant did not receive a
     hearing to review the mental health review officer’s
     recommendation within the mandated 72-hour period, which is
     not the case here. The Court “commenced” the hearing when
     it attempted to listen to the audiotape on Monday, February
     5, 2018 and concluded the hearing the following day when
     it issued its order. In S.O., the Superior Court held that the
     72 hours required by Section 109 refers to the time to
     conduct the hearing and not the time for decision. In re
     S.O., 342 Pa. Super. at 230.

           The [c]ourt finds the case of In re J.S., 739 A.2d 1068 (Pa.
     Super 1999), to be instructive regarding the application of the 48-
     hour rule to render a decision. In J.S. the [S]uperior [C]ourt was
     confronted with the issue of whether application of the time
     constraint enunciated in Section 7304(e)(7), can logically be
     applied as a time to be adopted in Section 7303 where a given
     time for the Judge’s determinative review is not set forth. The
     J.S. court stated,

           Where the period of hospitalization is twenty (20)
           days under § 7303, we see no logic in absence of
           legislative direction that a prompt judicial decision
           should not be made within 48 hours after the review

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            hearing regarding the findings of the mental health
            Master, if not sooner. By setting this time test in
            § 7303 we see no disruption in the total view and
            endeavor sought by the legislature to fix a time for
            judicial review which can be fairly applied in the
            interest of the designated mental health agency and
            the patient. It is clearly as important under § 7303
            that a judicial finding be made within 48 hours
            whether a patient should remain or be released as it
            is under the conditions of § 7304.

      In re J.S., 739 A.2d at 1070. In the instant case, the decision was
      rendered well within 48 hours of hearing.

             In effect In re J.S. found that the statute provides for
      sufficient time to adequately present evidence at a hearing and a
      reasonable time to pass on such evidence. Id.

Trial Court Opinion, 5/8/18, at 2-6.

      The trial court opined that the instant case is analogous to In re W.A.,

91 A.3d 702 (Pa. Super. 2014). In W.A., this Court concluded:

            Because the hearing before [the] Mental Health Review
      Officer … concluded on September 25, 2013, which was a
      Wednesday, a strict interpretation of subsection (e) required the
      decision by the trial court to be filed by September 27, a Friday.
      Although the order was not filed timely, because of the intervening
      weekend, it was filed on Monday, September 30, the next business
      day.

            W.A. contends that this technical violation requires that the
      commitment order be reversed and that he be discharged. This
      Court has categorically rejected a mechanical interpretation of the
      MHPA. See In re S.L.W., 698 A.2d 90 (Pa.Super.1997).

            In In re S.L.W., a consolidated appeal, the panel
      considered a pair of challenges arguing that technical violations
      involving, among other things, delays in adhering to the
      timeframe of the MHPA, required vacating of the commitment
      orders. The panel rejected the arguments that advocated a
      mechanical application of the MHPA’s statutory provisions. The
      panel explained that

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           one of the goals of the Mental Health Procedures Act
           is to protect the due process interests of the patient
           who loses his or her liberty by being committed to an
           institution. Protection of those interests requires
           fundamental fairness to the patient and respect for
           the patient’s dignity and individuality. Achieving this
           standard requires common sense application of
           statutory provisions, not mechanical application. A
           distinction must be made between those standards
           that directly affect the due process and liberty
           interests of the patient and those that do not.

     Id., at 94. Moreover, the panel further instructed that “in applying
     the MHPA we must take a balanced approach and remain mindful
     of the patient’s due process and liberty interests, while at the
     same time permitting the mental health system to provide proper
     treatment to those involuntarily committed to its care.” Id.
     (footnote omitted).

            Here, W.A. has not identified how his due process rights or
     liberty interests were violated other than the late filing of the order
     by the trial court. Furthermore, we note that, at the time the
     Section 304 commitment order was entered, albeit after a one-
     weekend delay, W.A. was still receiving treatment pursuant to the
     Section 303, 20-day commitment order entered on September 12,
     2013. W.A. suffers from bipolar disorder and mania and, as a
     result, poses a clear and present danger to himself and others.
     Thus, W.A. remains a severely mentally disabled individual in need
     of continued involuntary inpatient treatment.            The lack of
     treatment could lead to serious physical debilitation or death.

           The involuntary civil commitment of mentally ill persons
     constitutes a deprivation of liberty interests, and to justify this
     deprivation the procedures must satisfy due process protections.
     See 50 P.S. § 7102 (“The provisions of this act shall be interpreted
     in conformity with the principles of due process to make voluntary
     and involuntary treatment available where the need is great and
     its absence could result in serious harm to the mentally ill person
     or to others.”). See also In re R.D., 739 A.2d 548, 554
     (Pa.Super.1999). However,

           due process, unlike some legal rules, is not a technical
           conception with a fixed content unrelated to time,
           place and circumstances. Due process is flexible and

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              calls for such procedural protections as the particular
              situation demands.

       Id. (quoting Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct.
       893, 47 L.Ed.2d 18 (1976)). Adherence to a strict enforcement
       of the 48-hour limitation would have ignored the existing Section
       303 extended treatment and deprived W.A. of necessary care.

             Accordingly, we refuse to vacate W.A.’s Section 304
       commitment on the technical grounds he asserts as it is evident
       that W.A.’s due process and liberty interests were not affected by
       the short delay and his continued needed commitment.

In re W.A., 91 A.3d 702, 704-705 (Pa. Super. 2014) (footnote omitted).

       Here, G.E.S. filed her petition for review on Friday, February 2, 2018.

The trial court noted that on Monday, February 5, 2018, it attempted to review

the recording of the January 26, 2018 hearing, but it was unable to complete

its review due to an issue with the court’s voice recorder. Trial Court Opinion,

5/8/18, at 3 n.1.      Thus, the trial court points out that it “commenced” its

review of the January 26, 2018 hearing on the first business day, February 5,

2018, following the February 2, 2018, filing of G.E.S.’s petition. The trial court

then completed its review and entered an order on February 6, 2018. We are

satisfied that the trial court complied with the decision in S.O., commenced

its review of G.E.S.’s petition within seventy-two hours as required by Section

109, and rendered a timely decision without any unreasonable delay.

Accordingly, we discern no error.3

____________________________________________


3  Assuming, for the sake of argument, that the trial court did not commence
its review until February 6, 2018, the day the order was filed, we would



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       For the reasons set forth above, we conclude that G.E.S. is entitled to

no relief on appeal. Accordingly, we affirm the February 6, 2018 order.

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/30/2018




____________________________________________


conclude that the one-day delay did not deprive G.E.S. of due process.
Rather, we would still affirm the order pursuant to the rationale in W.A.
wherein this Court refused to vacate a commitment on due process grounds
where there was a short delay in the trial court’s review. W.A., 91 A.3d at
705.

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