J-A07016-19

                                2019 PA Super 212


 THOMAS J. SEPHAKIS                         :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                    Appellant               :
                                            :
                                            :
              v.                            :
                                            :
                                            :
 PENNSYLVANIA STATE POLICE                  :   No. 2194 EDA 2018
 BUREAU OF RECORDS AND                      :
 IDENTIFICATION, MONTGOMERY                 :
 COUNTY DEPARTMENT OF                       :
 BEHAVIORAL                                 :
 HEALTH/DEVELOPMENTAL                       :
 DISABILITIES, MCES, INC.                   :

               Appeal from the Order Entered May 25, 2018
   In the Court of Common Pleas of Montgomery County Civil Division at
                         No(s): 2017-00794-59


BEFORE:    OLSON, J., DUBOW, J., and STEVENS*, P.J.E.

OPINION BY DUBOW, J.:                                  FILED JULY 10, 2019

      Thomas J. Sephakis (“Appellant”) seeks review of the Order denying his

Petition to expunge his mental health commitment records and restore his

right to possess firearms pursuant to 18 Pa.C.S. §§ 6111.1 and 6105(f)(1)

and (j). After careful review, we affirm.

      The trial court has provided a thorough recitation of the facts underlying

this case, which we need not repeat in detail. See Trial Ct Op., dated Aug.

17, 2018. In sum, on October 15, 2015, Appellant’s business partner reported

to the Pottsgrove Township Police Department that Appellant was suicidal.

Officer Robert Greenwood transported Appellant to a Montgomery County

Mental Health Facility, and Appellant’s parents confirmed that Appellant had

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A07016-19



been talking about killing himself for the past few days.        Appellant was

involuntarily committed to the hospital pursuant to Section 302 of the Mental

Health Procedures Act (“MHPA”), 50 P.S. § 7302.1 On October 19, 2015, four

days after the involuntary commitment, Appellant received notice and an

application submitted by the Montgomery County Emergency Services, Inc.,

(“County”) seeking to extend Appellant’s involuntary commitment pursuant to

Section 3032 for an additional 20 days’ inpatient treatment. A hearing was

scheduled for October 20, 2015.

       At the scheduled hearing, Appellant, his privately-retained counsel, and

the solicitor for the county facility appeared before the Mental Health Review

Officer (“MHRO”).       However, the solicitor informed the MHRO that Officer

Greenwood was unable to appear that day and requested a continuance of

two days. Rather than continue the hearing for two days, Appellant and his


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1 “Section 302 of the MHPA provides for the involuntary emergency
examination and treatment of a person not to exceed 120 hours if, upon
certification of a physician for examination, or upon a warrant issued by a
county administrator authorizing an examination, an examination conducted
by a physician within two hours of arrival shows that the person is severely
mentally disabled and in need of emergency treatment. 50 P.S. § 7302(a),
(b).” In Re: Petition of J.M.Y., 179 A.3d 1140, 1144 (Pa. Super. 2018) (en
banc), appeal granted, 194 A.3d 121 (Pa. 2018).

2 “Section 303 of the MHPA provides for extended involuntary emergency
treatment of any person who is being treated pursuant to Section 302 for a
period not to except twenty days if, after an informal conference where the
patient is represented by counsel, a judge or mental health review officer finds
that the patient is severely mentally disabled and in need of continued
involuntary treatment, and so certifies. 50 P.S. § 7303(a)-(c).” J.M.Y.,
supra, at 1144.

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counsel negotiated a Stipulation whereby Appellant agreed that he was in

need of further treatment as alleged in the Section 303 application and to an

additional 20 days’ outpatient treatment in exchange for his immediate release

from the hospital.

        The MHRO set forth the Stipulation in a “Certification by the Court for

Extended Involuntary Emergency Treatment-Section 303.” The Certification

indicated that failure to comply with the Order would result in Appellant’s

return to inpatient status. Appellant did not seek review of the Section 303

Certification.    He complied with the Order and completed his outpatient

treatment.

        Over one year later, on January 12, 2017, Appellant filed a Petition

seeking the expungement of his Sections 302 and 303 mental health

commitment records and the restoration of his right to possess firearms

pursuant to 18 Pa.C.S. §§ 6105(f)(1), (j), and 6111.1(g)(2),3 or permission



____________________________________________


3   Section 6111.1(g)(2) provides:

        (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).




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to appeal nunc pro tunc from his 302 and 303 commitments. Appellant

asserted that insufficient evidence supported the Section 302 and 303

commitments and the commitments resulted from a violation of his due

process rights. On February 20, 2018, Appellant filed, with permission from

the court, an amended Petition asserting that he was proceeding pursuant to

the Mental Health Procedures Act generally and 18 Pa.C.S. § 6111.1. See

N.T., 2/20/18, at 104.

       The court held a hearing on February 20, 2018, at which Appellant

testified, inter alia, that he and his attorney negotiated the agreement at the

scheduled Section 303 conference after Appellant agreed that he needed

continuing treatment, but did not want to stay in the hospital for even two

more days. He stated that he agreed to attend outpatient therapy for 20 days

so that he could be immediately discharged from the hospital.          See N.T.,

2/20/18, at 121, 125-27. In response to extensive questioning by the court,

Appellant testified that he was aware of his rights, including his right to appeal

the Section 303 certification, as well as the loss of his right to possess

firearms. Id. at 134-38. The court ordered the parties to submit briefs.

       After consideration of the parties’ briefs, the court denied the Petition

on May 25, 2018.


____________________________________________


18 Pa.C.S. § 6111.1(g)(2). A court has no jurisdiction under 18 Pa.C.S.
§6111.1(g) to review a commitment under Section 303. In re Jacobs, 15
A.3d 509 (Pa. Super. 2011).


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         Appellant appealed. Both he and the trial court complied with Pa.R.A.P.

1925.

         Appellant presents the following Statement of Questions Involved in his

brief:

         1. Did the trial court commit an error of law by failing to apply the
         holding in In re JMY, 179 A.3d 1140 ([Pa. Super.] 2018)[(en
         banc)] (hereinafter JMY), to this case?

         2. Did the trial court commit an error of law when it found that
         the Section 303 Hearing Stipulation was an “Agreed Order” and
         therefore [Appellant] was precluded altogether from appealing it
         even if timeliness was not an issue?

         3. Did the trial court commit an error of law when it ruled that
         much of the evidence that was going to be presented was
         irrelevant because the court had no intention of considering
         [Appellant’s] argument that JMY controls the outcome of this
         case, or in allowing [Appellant] to develop the case in his own
         manner?[4]

Appellant’s Brief at 2-3.

         Our standard of review is well-settled. 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).

         In his first issue, Appellant contends that the trial court could have

reviewed his Section 302 and 303 commitments based on the holding provided

in In Re: Petition of J.M.Y., 179 A.3d 1140 (Pa. Super. 2018), appeal


____________________________________________


4 The portion of Appellant’s Brief purporting to correspond to this third issue
attempts to assert an entirely different point. Accordingly, this issue as stated
is waived. However, we review the argument that was provided infra.

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J-A07016-19


granted, 194 A.3d 121 (Pa. 2018).              In support, Appellant asserts a bare due

process argument, contending that “the stipulation was obtained through

coercion, specifically by ‘threatening’ petitioner with two more days of

inpatient incarceration unless he agreed to some amicable resolution.”

Appellant’s Brief at 12.5 Appellant’s argument is unavailing.

       This Court provided the following concise overview of the applicable law

in J.M.Y.:

       [P]revailing case law has interpreted 18 Pa.C.S. § 6111.1(g) as
       providing no opportunity to obtain expungement of a mental
       health record pursuant to a commitment under section 303 and
       only allows for a trial court to review commitments under section
       302. In re [Kevin] Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011).
       In addition, an appellant seeking expungement and restoration of
       firearms rights cannot “bootstrap” review of a section 303
       commitment to a petition seeking review of a section 302
       commitment under section 6111.1(g), because the section 303
       commitment is “an entirely separate judicial proceeding, complete
       with its own avenue of appeal.” Id.

       The law in Pennsylvania is “well-settled that involuntary civil
       commitment of mentally ill persons constitutes deprivation of
       liberty and may be accomplished only in accordance with due
       process protections.” In re Hutchinson, 454 A.2d 1008, 1010
       (Pa. 1982); In re Chiumento, 688 A.2d 217, 220 (Pa. Super.
       1997). “The very nature of civil commitment ... entails an
       extraordinary deprivation of liberty.... A statute sanctioning such
       a drastic curtailment of the rights of citizens must be narrowly,
____________________________________________


5 Appellant also contends that the “the stipulation was coerced by the agency
creating the absence of the police officer by not subpoenaing him and then
using his absence as the basis for requesting continuance to get another two
days [of] incarceration out of petitioner[.]” Appellant’s Brief at 14. Appellant
does not support this accusation with citation to any evidence that
demonstrates that the agency intentionally created the officer’s absence in
order to keep Appellant under inpatient commitment, and our review of the
record reveals none.

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J-A07016-19


      even grudgingly construed, in order to avoid deprivations of
      liberty without due process of law.” In re Woodside, 699 A.2d
      1293, 1298 (Pa. Super. 1997) (quoting In Re S.C., 280 Pa.Super.
      539, 421 A.2d 853, 857 (1980)).

                                     ***

      As we ultimately held in In re Ryan, [784 A.2d 803, 808 (Pa.
      Super. 2001]), when an appellant's due process rights under the
      MHPA are violated, “we may vacate the certification for
      involuntary treatment pursuant to section [ ]303, and direct that
      all records pertaining to this matter be expunged.” [Id.] See also
      In re A.J.N., 144 A.3d 130, 139 (Pa. Super. 2016) (stating that
      “case law uniformly mandates expungement and destruction of
      records when the procedural, due process requirements of the
      MPHA are violated during a commitment proceeding”). Thus, only
      a section 303 commitment that provides adequate due process
      may preclude an expungement of a section 302 commitment.

In Re: Petition of J.M.Y., 179 A.3d at 1143-44.

      In J.M.Y, the University of Pittsburgh police brought the appellant to the

hospital after he attempted to harm himself after becoming intoxicated at a

fraternity party while taking prescribed medication for depression and anxiety.

He was committed under Section 302 and discharged from the hospital 4 days

later. He continued his studies of law enforcement at the University.        In

November 2014, the appellant petitioned to vacate his Section 302

commitment and expunge his mental health commitment records. The trial

court denied his petition because his commitment had been extended by a

Section 303 certification.

      On appeal, J.M.Y. asserted a due process violation because he had not

been aware that there had been a Section 303 hearing. This Court ultimately

agreed and concluded that the trial court erred in finding that the Section 303

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J-A07016-19


certification was valid. Id. at 1148. Sitting en banc, we observed that the

evidence showed that the appellant had been unaware that any Section 303

commitment hearing had been requested or held, and the certified record

reflected that Appellant did not attend the hearing. Id. at 1146. The Court

also observed that at Appellant’s expungement hearing, an officer from the

University police department testified that he did not appear at a Section 303

commitment hearing for the appellant and could not recall if he was ever

informed that such a hearing was to be held. Id. In addition, we noted that

the appellant had not signed the Section 303 certification, no evidence showed

the appellant knew of his right to appeal under Section 303(g), no evidence

showed the appellant knew of his continuing right to an attorney, and no

evidence showed that the appellant had been served a copy of the Section

303 commitment certification.     The Court concluded that “[t]hese failures

amount to a deprivation of [the a]ppellant’s due process rights” and found the

Section 303 certification, thus, invalid. Id. at 1147.

      J.M.Y. is factually and procedurally inapposite to Appellant’s case. As

the trial court here observed:

      The testimony of [Appellant] on February 20, 2018, belies any
      argument that his records should be expunged based on a denial
      of due process in connection with his Section 303 agreement. He
      was provided with the application for Section 303 treatment, as
      was his counsel. He was ably represented by his private counsel
      and was fully informed of the consequences of his stipulation and
      extended treatment, negotiated by his lawyer and the mental
      health department’s lawyer. . . .




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J-A07016-19


      [Unlike in J.M.Y., supra,] in our case, [Appellant] testified that
      he was fully aware that a 303 hearings was to take place, obtained
      representation by private counsel of his choosing, went to the
      hearing with his counsel, and then negotiated, through his private
      counsel, to be released that day and undergo outpatient treatment
      under court supervision by a mental health provider of his
      choosing (his own mental health doctor with whom he had been
      treating for six months) and, thus, avoided a further proceedings
      that could have resulted in twenty days of inpatient treatment.

      . . . In this case, the evidence shows that this court did not abuse
      its discretion. This court applied the law that agreed or stipulated
      orders are not appealable; recognized that [Appellant] was not
      appealing nunc pro tunc and presented no evidence thereon;
      applied the law that an agreed upon order cannot be attacked
      except upon pleading and presenting clear and convincing
      evidence of fraud[,] accident or mistake, which [Appellant] utterly
      failed to do because there was none; and, applied the binding
      precedent of In re Kevin Jacobs, supra.

      It is clear, as his parents and business partner, along with police
      officer concluded, that [Appellant] was in need of treatment when
      he was first committed. Unlike the facts in J.M.Y., it is likewise
      clear that [Appellant] was represented by competent counsel at
      his section 303 hearings and was provided with the protections
      required before he stipulated to receive extended outpatient
      treatment [pursuant to Section 303]. Fundamental fairness was
      not violated.

Trial Court Opinion, dated 8/17/18, at 15-17.

      Our review of the record supports the trial court’s analysis. Appellant

received notice of the Section 303 hearing, attended the Section 303 hearing

with his privately-retained counsel, and acknowledged that his counsel had

apprised of him of his rights prior to entering into the Stipulation supporting

the Section 303 certification.    Appellant was afforded, and fully availed

himself, of all due process required in connection with the Section 303




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J-A07016-19


commitment proceeding and subsequent certification.6 Accordingly, the trial

court did not err or abuse its discretion in finding the Section 303 certification

to be valid. This first issue, thus, warrants no relief.7

       In the second issue, Appellant asserts that the trial court erred in

concluding that the Section 303 Stipulation precluded Appellant from

appealing, “even if timeliness were not indicate [sic] involved.” Appellant’s

Brief at 16-17. Because Appellant failed to develop this issue, we are unable

to provide meaningful review. This issue is, thus, waived.

       Our Pennsylvania Rules of Appellate Procedure and our case law provide

the well-established requirements for preserving a claim for appellate review.

See Pa.R.A.P. 2111-2119 (discussing required content of appellate briefs and



____________________________________________


6 Despite knowing of his right to appeal the Section 303 certification, Appellant
did not partake in that process. Rather, he now attempts to argue that he
was coerced into entering the Stipulation so the Section 303 certification is
invalid and implies that review is, thus, now available. See Appellant’s Brief
at 12. We disagree. As noted above, the trial court found that Appellant was
not “coerced” into entering the stipulation. Moreover, nunc pro tunc relief is
permitted only when, inter alia, there was fraud or a breakdown in the
operations of the court. Vietri ex rel. Vietri v. Delaware Valley High
School, 63 A.3d 1281, 1284 (Pa. Super. 2013). Appellant’s entering into a
counseled stipulation does not represent fraud or a breakdown in the court’s
operation which would render his certification now appealable.

7 We are not persuaded by Appellant’s contention that he was unaware that
the certification had been granted because he did not receive a copy of the
Section 303 certification following the proceeding. He and his counsel were
at the hearing with the MHRO and fully aware when they entered the
Stipulation that he was agreeing to the extension of treatment that had been
requested pursuant to Section 303.


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J-A07016-19


addressing specific requirements of each subsection of brief on appeal). An

appellate court will address only those issues properly presented and

developed in an appellant’s brief as required by our Rules of Appellate

Procedure, Pa.R.A.P. 2101. Where defects in a brief “impede our ability to

conduct meaningful appellate review, we may dismiss the appeal entirely or

find certain issues to be waived.” Commonwealth v. Hardy, 918 A.2d 766,

771 (Pa. Super. 2007). See also Commonwealth v. Williams, 732 A.2d

1167, 1175 (Pa. 1999) (recognizing “the unavailability of relief based upon

undeveloped claims for which insufficient arguments are presented on

appeal”); Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.

2013) (stating “[i]t is a well settled principle of appellate jurisprudence that

undeveloped claims are waived and unreviewable on appeal.” (citation

omitted)). As this Court has made clear, we “will not act as counsel and will

not develop arguments on behalf of an appellant.” Hardy, 918 A.2d at 771.

      In support of this issue, Appellant presents a two-paragraph “argument”

comprised of conclusory, self-serving statements with no citation to the record

or legal authority, and no legal analysis. We are, thus, unable to provide

meaningful review. Accordingly, Appellant has waived this second issue.

      In the argument purporting to correspond to his third issue, Appellant

avers that the court should not have relied on In re Kevin Jacobs, 15 A.3d

509 (Pa. Super. 2011), to find that expungement of his Section 303




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J-A07016-19


commitment was not available to him under 18 Pa.C.S. § 6111.1(g).8           He

boldly contends that Jacobs “should be overturned” because it wrongly

construed the relevant statutes when it concluded that a Section 303

commitment is a separate and distinct proceeding from a Section 302

commitment. Appellant’s Brief at 18. He avers that the Section 6111.1(g)

expungement provision should, thus, apply equally to allow review of both

Section 302 and 303 certifications. Id. Finally, without citation to any case

law or other legal authority, Appellant contends that applying his version of

the construction of the MHPA “eliminates the current conflict which has been

resulting in such varied panel decisions[.]”       Id.   Appellant’s argument is

without foundation and undeveloped. It is, therefore, waived.




____________________________________________


8 In In re Jacobs, supra, this Court ruled that 18 Pa.C.S. §6111.1(g)
provides no opportunity to obtain expungement of mental health records
pursuant to a commitment under Section 303. “This undoubtedly reflects the
fact that commitment under § 7303 indicates a more serious mental [health]
problem, and the fact that commitment under § 7302 only requires a doctor’s
determination, while commitment under § 7303 imposes major due process
requirements.” Id. at 511. See also In re Keyes, 83 A.3d 1016 (Pa. Super.
2013) (applying Jacobs and noting that Section 6111.1(g) provides no
mechanism for expungement of a Section 303 extended involuntary
emergency treatment certified by a mental health review officer if the Section
303 ruling was not vacated by the court of common pleas.). Jacobs is binding
precedent. “This panel is not empowered to overrule another panel of the
Superior Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.
2013). See also Sorber v. American Motorists Insur. Co., 680 A.2d 881,
882 (Pa. Super. 1996) (observing that “[a]s long as the [Superior Court]
decision has not been overturned by our Supreme Court, it remains binding
precedent”).

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J-A07016-19


      Appellant does not provide any indication of what authority would allow

this panel to “overturn” a prior Superior Court Opinion. Appellant also fails to

cite any authority pertaining to statutory construction that would enable this

Court to consider his alternative application of Section 6111.1(g). Finally, he

fails to provide any case citations in support of his claim that there is a “current

conflict” in Superior Court decisions regarding the application of the

expungement statute and review of Section 302 and 303 commitments.

These glaring omissions render this issue waived.           See Pa.R.A.P. 2111,

2119(a) (requiring that an appellant provide argument in his brief with citation

to “pertinent” authority); Hardy, supra (where defects in a brief prevent

meaningful review, the issue may be found waived).

      Having concluded Appellant’s issues are without merit and waived, we

affirm the trial court’s Order denying Appellant’s Petition for expungement of

his mental health commitment records.

      Order affirmed.

      President Judge Emeritus Stevens joins the Opinion.

      Judge Olson concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/19

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