          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert R. Gorry,                             :
                            Petitioner       :
                                             :
                    v.                       :    No. 2168 C.D. 2015
                                             :    Submitted: May 13, 2016
Pennsylvania State Police,                   :
                         Respondent          :



BEFORE:      HONORABLE RENÉE COHN JUBELIRER, Judge
             HONORABLE MICHAEL H. WOJCIK, Judge
             HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge




OPINION BY
JUDGE COHN JUBELIRER                              FILED: July 15, 2016



      Robert R. Gorry (Applicant) petitions for review of an October 8, 2015,
Order of an Administrative Law Judge (ALJ) of the Office of the Attorney General
sustaining a decision by the Pennsylvania State Police (State Police) to deny
Applicant the right to purchase a firearm pursuant to Section 6105(c)(4) of the
Uniform Firearms Act of 1995 (UFA)1 and Section 922(g)(4) of the Federal Gun

      1
         18 Pa. C.S. § 6105(c)(4). Section 6105(c)(4) of the UFA prohibits the purchase of
firearms by:

      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), known as the Mental Health Procedures Act. 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.
                                                                              (Continued…)
Control Act of 1964 (GCA).2 On appeal, Applicant argues that he should not be
prohibited from purchasing a firearm because he voluntarily consented to mental
health care in 2012 and the law only prohibits the purchase of firearms by a person
involuntarily committed.          Because substantial evidence supports the ALJ’s
conclusion that the State Police met its burden to show by a preponderance of the
evidence that Applicant was involuntarily committed, we affirm.
      Applicant attempted to purchase a firearm on June 9, 2015, and failed the
required background check by the State Police. An examination of Applicant’s
criminal and mental health history through the Pennsylvania Instant Check System
(PICS) revealed that Applicant was prohibited from purchasing a firearm as a
result being involuntarily committed pursuant to Sections 302 and 303 of the
Mental Health Procedures Act3 (MHPA). Applicant filed a timely challenge of his
denial with the State Police. (R.R. at 1a-4a.) In his challenge Applicant indicated
that he was never “adjudicated incompetent or involuntarily committed.” (Id. at
1a.) By letter dated July 10, 2015, the State Police denied his challenge and
notified Applicant of the basis of his denial. The letter informed Applicant, in
relevant part that “the basis for your denial can be found under 18 Pa. C.S. [§]
6105(c)(4).      Also, federal law 18 U.S.C. [§] 922(g)(4), restricts any person

Id.
      2
          18 U.S.C. § 922(g)(4). Section 922(g)(4) of the GCA provides:

      It shall be unlawful for any person-- . . . who has been adjudicated as a mental
      defective or who has been committed to a mental institution . . . to ship or
      transport in interstate or foreign commerce, or possess in or affecting commerce,
      any firearm or ammunition; or to receive any firearm or ammunition which has
      been shipped or transported in interstate or foreign commerce.

Id.
      3
          Act of July 9, 1976, P.L. 817, as amended, 50 P.S. §§ 7302, 7303

                                                2
adjudicated as a mental defective or involuntarily committed to any mental
institution. Your involuntary commitments in 2012 are prohibiting.” (S.R.R. at
38b.)
        Applicant appealed his denial to the Office of Attorney General, which
assigned the case to an ALJ. A hearing was held on October 8, 2015, where
Applicant and Stephanie Dunkerley, legal assistant supervisor of the State Police’s
PICS Challenge Section, testified.
        At the hearing, the State Police presented a packet of evidence provided to
the State Police by the Lehigh County Mental Health Review Officer.            The
documents included an “Application for Involuntary Emergency Examination and
Treatment” pursuant to Section 302 of the MHPA (Section 302 Application)
completed by a social worker and two physicians at Sacred Heart Hospital in
Allentown, Pennsylvania. (Id. at 46b-52b.) The document states that Applicant
was admitted to the facility on May 18, 2012, and that treatment was “initiated” on
May 21, 2012. (Id. at 46b.) Part VI of the Section 302 Application was completed
by Farhad Sholevar, M.D., and states that Applicant was examined on May 21,
2012, and that, in Dr. Sholevar’s opinion, “[t]he patient is severely mentally
disabled and in need of treatment. He should be admitted to a facility designated
by the County Administrator for a period of treatment not to exceed 120 hours.”
(Id. at 52b.)
        The packet of documents also included an “Application for Extended
Involuntary Treatment” pursuant to Section 303 of the MHPA (Section 303
Application). (Id. at 41b-45b.) Part II of the Section 303 Application affirms that
Applicant was informed of the actions taken pursuant to the application and that
Applicant understood his rights.     (Id. at 42b.)   Part III of the Section 303


                                         3
Application shows that Peter Gross, M.D. concluded on May 24, 2012, that
“[Applicant] continues to be severely mentally disabled and in need of treatment.”
(Id. at 42b-43b.) After a hearing, at which Applicant did not attend but was
appointed counsel, the Court of Common Pleas of Lehigh County (common pleas),
through the Lehigh County Mental Health Review Officer, ordered that Applicant
be committed to inpatient treatment at Sacred Heart Hospital for a period of not
exceeding 20 days. (Id. at 44b.)
      Applicant submitted a document entitled “Consent for Voluntary Inpatient
Treatment” dated May 16, 2012.       Therein, Applicant consented to “treatment
which has been explained to me” and affirmed that in order to leave the facility he
“must give 72 hours advance notice in writing to those in charge of my treatment.”
(Id. at 53b.) Applicant testified to the ALJ that he consented to be committed for
mental health treatment on May 16 because he was in distress from a recent open-
heart surgery and stayed at the facility for 22 days. (Id. at 18b-19b.) Applicant
testified that he never revoked his consent to be committed and was never notified
that there was a hearing on involuntary commitment. (Id. at 18b, 20b.)
      Upon review of the evidence, the ALJ concluded that the State Police met its
burden of proof that Applicant was involuntarily committed to a mental health
institution pursuant to Sections 302 and 303 of the MHPA and denied Applicant’s
appeal. (Id. at 29b-30b; Order, R.R. at 10a.) Applicant now petitions this Court
for review.


DISCUSSION
      The process by which an applicant may challenge a denial of the right to
purchase a firearm due to a failed PICS check is set forth in Section 6111.1(e) of


                                        4
the UFA, 18 Pa. C.S. § 6111.1(e). First, an applicant may “challenge the accuracy
of that person’s . . . mental health record” to the State Police. 18 Pa. C.S. §
6111.1(e)(1). “If the challenge is ruled invalid, the person shall have the right to
appeal the decision to the Attorney General” where a de novo hearing will be held
before an ALJ and the State Police bears the burden to prove the accuracy of the
mental health record. 18 Pa. C.S. § 6111.1(e)(3). The standard of proof in a
proceeding before an ALJ is a preponderance of the evidence standard. Pa. State
Police v. Slaughter, ___ A.3d ___, ___ (Pa. Cmwlth., No. 858 C.D. 2015, filed
March 21, 2016), slip op. at 15. That is, an ALJ must affirm the State Police’s
determination if the State Police presents evidence showing that it is “more likely
than not” that the applicant was involuntarily committed pursuant to Sections 302
or 303 of the MHPA. Id. The Attorney General’s determination may be appealed
to this Court. 18 Pa. C.S. § 6111.1(e)(4). “Our scope of review [of the Attorney
General’s decision] is limited to a determination of whether necessary findings are
supported by substantial evidence, an error of law was committed or whether
constitutional rights were violated.” Pa. State Police v. Heggenstaller, 784 A.2d
853, 856 n.6 (Pa. Cmwlth. 2001).
      On appeal, Applicant argues that his hospital records show that he
voluntarily agreed to mental health treatment recommended by his physician.
Applicant argues that the “Consent for Voluntary Inpatient Treatment” form
admitted into the record and his hospital discharge paperwork, included in the
Reproduced Record submitted to this Court by Applicant without first presenting
the document to the ALJ, shows that he was not involuntarily committed.
Applicant also contends that the package of documents submitted to the ALJ by the
State Police shows that physicians recommended that he be involuntarily


                                         5
committed, but that these documents are nothing more than recommendations and
did not serve to involuntarily commit him when he already voluntarily committed
himself.
      Sections 6105(a)(1) and 6105(c)(4) of the UFA provides, that “[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),
known as the [MHPA]” “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.”          18 Pa. C.S. §§ 6105(a)(1),
6105(c)(4). We recently explained the application of Sections 302 and 303 of the
MHPA to Section 6105 of the UFA as follows:

      Generally, under Section 302 of the MHPA, an emergency mental
      examination of a patient may be undertaken where a physician
      certifies an examination is needed or an authorized county
      administrator approves a warrant for examination.           R.H.S. v.
      Allegheny Cnty. Dep’t of Human Servs., Office of Mental Health, 936
      A.2d 1218 (Pa. Cmwlth. 2007) (citing 50 P.S. § 7302). A patient
      must be examined within two hours after arrival at a treatment facility.
      Id. If the examination reveals the patient needs treatment, it must
      begin immediately. Id. If treatment is not necessary, the patient must
      be discharged. Id. In any event, the patient must be discharged within
      120 hours unless it is determined further treatment is necessary or the
      patient voluntarily seeks additional treatment. Id. Additionally, under
      Section 303(a) of the MHPA (“Persons Subject to Extended
      Involuntary Emergency Treatment”), an application for extended
      involuntary emergency treatment “may be made for any person who is
      being treated pursuant to section 302 whenever the facility determines
      that the need for emergency treatment is likely to extend beyond 120
      hours.” 50 P.S. § 7303(a).

Slaughter, ___ A.3d at ___, slip op. at 12-13 (emphasis omitted).

                                         6
      Similarly, Section 922(g)(4) of the GCA provides that “it shall be unlawful
for any person--. . . who has been adjudicated as a mental defective or who has
been committed to a mental institution” to possess a firearm.                     18 U.S.C. §
922(g)(4). According to the Department of Justice’s regulations, “[c]ommitted to a
mental institution” is defined as

      A formal commitment of a person to a mental institution by a court,
      board, commission, or other lawful authority. The term includes a
      commitment to a mental institution involuntarily. The term includes
      commitment for mental defectiveness or mental illness. It also
      includes commitments for other reasons, such as for drug use. The
      term does not include a person in a mental institution for observation
      or a voluntary admission to a mental institution.


27 C.F.R. § 478.11.
      The evidence presented to the ALJ shows that Applicant consented to mental
health treatment on May 16, 2012, pursuant to Section 201 of the MHPA.4
Applicant was subsequently involuntarily committed on May 21, 2012, to an initial
period not exceeding 120 hours pursuant to Section 302 of the MHPA. (S.R.R.
52b-53b.) Four days later, after a hearing, Applicant was involuntarily committed
for an additional 20 days pursuant to Section 303 of the MHPA on May 25, 2012.

      4
          50 P.S. § 7201. Section 201 of the MHPA states, in relevant part:

      Any person 14 years of age or over who believes that he is in need of treatment
      and substantially understands the nature of voluntary treatment may submit
      himself to examination and treatment under this act, provided that the decision to
      do so is made voluntarily. . . . [e]xcept as otherwise authorized in this act, all of
      the provisions of this act governing examination and treatment shall apply.

Id.



                                                7
(Id. at 40b-44b.) The fact that Applicant initially consented to treatment does not
undermine the documents showing that Applicant was involuntarily committed
days later as an initial consent to treatment may be converted into an involuntary
commitment. See, e.g., In re S.B., 777 A.2d 454, 459 (Pa. Super. 2000) (affirming
a decision to convert a Section 201 admission to a Section 303 admission). While
the General Assembly has stated a preference for voluntary inpatient treatment of
mental health disorders, a voluntary commitment may be converted into an
involuntary commitment when necessary. In re J.S., 586 A.2d 909, 914 (Pa. 1991).
      Applicant contends that the documents show nothing more than a
recommendation by his physicians that he be committed and cannot be used to
show that he actually was involuntarily committed. We disagree. The State Police
submitted a completed Section 303 Application. (S.R.R. at 40b-45b.) The Section
303 Application is produced on a standard form, Form MH-784, developed by the
Department of Public Welfare5 (Department) which is mandatory for all Section
303 commitments. See 55 Pa. Code § 5100.87(c)(2), (e)(1) (stating that “[i]f the
[mental health] facility determines that extended emergency involuntary treatment
is necessary” it shall “immediately deliver an application upon Form MH-784 to
the court or Mental Health Review Officer” and that “[c]ertification for extended
emergency involuntary treatment shall be made in writing on Form MH-784,
issued by the Department”) (emphasis added). Part IV of the MH-784 Form, titled
“Certification by the Court for Extended Involuntary Emergency Treatment –
Section 303,” states:



      5
        As of December 2014, the Department of Public Welfare was redesignated the
Department of Human Services.

                                        8
      The court finds that the patient [is] severely mentally disabled and in
      need of treatment. Accordingly, the court orders that [Applicant]
      receive: [inpatient treatment] which is the least restrictive treatment
      setting appropriate for the patient of Sacred Heart Hospital as a
      severely mentally disabled person pursuant to the provisions of
      Section 303 of the Mental Health Procedures Act of 1976 for a period
      of not to exceed [20] days.

(S.R.R. at 44b.) This document was signed by the Lehigh County Mental Health
Review Officer on behalf of common pleas. (Id.)
      The State Police also submitted a completed Section 302 Application on
Form MH-783 issued by the Department and required for all Section 302
commitments. See 55 Pa. Code § 5100.86(a) (“Written applications, warrants, and
written statements made under section 302 of the act (50 P.S. § 7302), shall be
made on Form MH-783 issued by the Department”). The Section 302 Application
contains a statement by Dr. Sholevar that Applicant is “severely mentally disabled
and in need of treatment. He should be admitted to a facility designated by the
County Administrator for a period of treatment not to exceed 120 hours.” (S.R.R.
at 52b.) A completed Form MH-783 independently establishes that Applicant was
involuntarily committed pursuant to Section 302 because, unlike a Section 303
commitment which requires a hearing and a court order, a Section 302
commitment may be undertaken “upon the certification of a physician stating the
need for such examination; or . . . upon application by a physician or other
authorized person who has personally observed conduct showing the need for such
examination.” Section 302(a) of the MHPA, 50 P.S. § 7302(a).
      While both Form MH-784 and Form MH-783 require physicians to detail
results of their examinations and recommend treatment, these documents have
legal significance as they trigger Section 302 and 303 commitments. As such, we
conclude that these documents represent substantial evidence supporting the ALJ’s
                                        9
conclusion that Applicant is prohibited from purchasing a firearm pursuant to
Section 6105(c)(4) of UFA and Section 922(g)(4) of GCA.
      Finally, Applicant argues that his hospital records prove that he consented to
mental health treatment. As discussed above, even if Applicant initially consented
to treatment, the evidence shows that Applicant was subsequently involuntarily
committed. Furthermore, Applicant’s hospital record is not part of the certified
record because he did not present this evidence to the ALJ. “For purposes of
appellate review, that which is not part of the certified record does not exist.” B.K.
v. Dep’t of Pub. Welfare, 36 A.3d 649, 657 (Pa. Cmwlth. 2012).
      For the foregoing reasons, the Order of the ALJ for the Office of the
Attorney General is affirmed.




                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge




                                         10
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Robert R. Gorry,                        :
                         Petitioner     :
                                        :
                   v.                   :   No. 2168 C.D. 2015
                                        :
Pennsylvania State Police,              :
                         Respondent     :



                                      ORDER


      NOW, July 15, 2016, the October 8, 2015 Order by an Administrative Law
Judge of the Office of the Attorney General, entered in the above-captioned matter,
is hereby AFFIRMED.




                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
