J-A01039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: N.R. : IN THE SUPERIOR COURT OF
' PENNSYLVANIA
APPEAL OF: N.R. AND D.R., HIS WIFE : NO. 976 WDA 2016

Appeal from the Order February 9, 2016
in the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 8243 of 2009
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 06, 2017
Appellants N.R., and his wife D.R., appeal from the order entered on
February 9, 2016, which denied N.R.'s petition for relief from disability and

expungement1 of mental health, involuntary commitment, and treatment

records.2 We affirm.

 

1 The terms “eXpungement" and “eXpunction" are used interchangeably.
They are synonymous.

2 Also before this Court is Appellants' motion to strike the supplemental
reproduced record (SRR) filed by the Pennsylvania State Police (Appellee).
Motion, 1/9/2017. In that motion, Appellants contend that the SRR should
be stricken because (1) “Appellee did not request that [] Appellants' counsel
agree to allow the materials to be submitted to [this Court] and did not
obtain leave of court to file the same” and (2) the materials contained
therein, specifically the curriculum vitae of Dr. Douglas R. Ramm, and N.R.'s
psychological evaluation and hospital records, “were not before the lower
court and are not germane to the issues to be decided there." Id. at 2
(unnumbered). Pursuant to Pa.R.A.P. 2156, “[w]hen, because of exceptional
circumstances, the parties are not able to cooperate on the preparation of
the reproduced record as a single document, the appellee may [...] prepare,
serve and file a [SRR] setting forth the portions of the record designated by
the appellee.” Pa.R.A.P. 2156. “[T]he preparation of a supplemental
reproduced record is not favored and the appellate court may suppress a
supplemental record which has been separately reproduced without good
cause." Pa.R.A.P. 2156, Comment.

*Retired Senior Judge assigned to the Superior Court.

J-A01039-17

On September 11, 2009, N.R. was committed involuntarily to Excela
Health Westmoreland for a period of 120 hours, pursuant to 50 P.S. § 7302
(section 302) of the Mental Health Procedures Act (MHPA).3 On September
15, 2009, a hearing was held and N.R.'s involuntary commitment was
extended pursuant to 50 P.S. § 7303 (section 303) of the MHPA to allow for
further treatment for a period of time not to exceed 20 days. The record
shows that N.R. attended the hearing and was represented by counsel from
the Westmoreland County Public Defender's office. Trial Court Opinion,

2/10/2016, at 2. At the conclusion of the hearing, the mental health review

 

The Rule does not require leave of Court to file an SRR and the record
is silent as to what prompted Appellee to file an SRR in this matter.
However, as Appellee's counsel points out in his response, “even a cursory
review of the record in this case clearly shows that all three of the exhibits in
the SRR were identified by N.R.'s trial counsel, introduced by N.R.'s trial
counsel, admitted into the record during the hearings in this matter, and
were relied upon by both counsel and the [t]rial [c]ourt.” Response,
2/6/2017, at 2. The notes of testimony from the November 17, 2015 and
January 27, 2016 hearings in this matter confirm that the exhibits at issue
were admitted into evidence by Appellants' counse|. Further, and perhaps
most importantly, all three items at issue are contained in the certified
record before this Court. See Commonwealth v. Williams, 715 A.2d 1101
(Pa. 1998) (“The fundamental tool for appellate review is the official record
of what happened at trial, and appellate courts are limited to considering
only those facts that have been duly certified in the record on appeal.”).
Thus, even if Appellee violated Rule 2156, we are bound to consider the
documents at issue. Accordingly, we deny Appellants' motion to strike.

3 Appellants do not challenge N.R.'s involuntary commitment under section
302.
_ 2 _

J-A01039-17

officer informed N.R. that he had the right to petition the court of common
pleas for review of his section 303 commitment. Id. N.R. did not do so.

N.R. was eventually released from the hospital4 and, on February 1,
2013, three years after his commitment, he filed a petition seeking to vacate
and expunge his involuntary commitment records, and restore his rights to
own a firearm, pursuant to 18 Pa.C.S. § 6105(f)(1), 18 Pa.C.S.
§ 6111.1(g)(2), and Article 1, Section 1 of the Pennsylvania constitution. A
hearing was held on November 17, 2015 and January 27, 2016. On
February 9, 2016, the trial court issued on order reinstating N.R.'s right to
own a firearm under section 6105(f)(1) and denying N.R.'s request for an
expungement under section 6111.1(g)(2). This appeal followed. The trial
court did not order Appellants to file a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925, and none was filed.

On appeal, Appellants argue that the trial court erred by denying
expungement of N.R.'s mental health records for the reason that he did not
request a timely review of his commitment under section 303 of the MHPA.

Appellants' Brief at 4.5

 

4 The exact date of N.R.'s release is not indicated in the record, but it does
not appear that his commitment exceeded the 20-day extension.

5 Although listed in their statement of questions presented, Appellants' brief

makes no argument with respect to Article 1, Section 1 of the Pennsylvania

Constitution, the due process clause of the 5th Amendment and the 14th

Amendment of the U.S. Constitution, or U.S.C. § 922(g)(4). Accordingly, we
_ 3 _

J-A01039-17

“Our well-settled standard of review in cases involving a motion for
expunction is whether the trial court abused its discretion.” In re Keyes, 83
A.3d 1016, 1022 (Pa. Super. 2013).

N.R. was involuntarily committed pursuant to both sections 302 and
303 of the MHPA. Section 6111.1(g) of the Uniform Firearms Act, under
which Appellants contend N.R. is entitled to expungement, governs only
expungement of involuntary commitment records for persons whose
commitment is made pursuant to Section 302. See 18 Pa.C.S.
§ 6111.1(g)(2), (3). This Court has interpreted the plain language of section
6111.1(g) to provide “no opportunity to obtain expunction of mental health
records pursuant to a commitment under [section 303].” In re ]acobs, 15
A.3d 509, 511 (Pa. Super. 2011), (holding, inter alia, that section 6111.1(g)
“only imbues the lower court with jurisdiction to review commitments under
[section 302]"). Additionally, the ]acobs court noted that, even if a
petitioner is entitled to expunction under section 302, that expunction
cannot occur if the petitioner was also involuntarily committed under section
303. Id.

Nonetheless, we are cognizant that when an appellant's due process

rights under the MHPA are violated, "we may vacate the certification for

 

find those issues waived. See Commonwealth v. Williams, 732 A.2d
1167, 1175 (Pa. 1999) (holding that relief is unavailable for undeveloped
claims where insufficient arguments are presented on appeal).

_ 4 _

J-A01039-17

involuntary treatment pursuant to section []303, and direct that all records
pertaining to this matter be expunged." In re Ryan, 784 A.2d 803, 808 (Pa.
Super. 2001). 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 exceed 20 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). In
addition, section 303(c) requires the following:

At the commencement of the informal conference, the judge or
the mental health review officer shall inform the person of the
nature of the proceedings. Information relevant to whether the
person is severely mentally disabled and in need of treatment
shall be reviewed, including the reasons that continued
involuntary treatment is considered necessary. Such explanation
shall be made by a physician who examined the person and shall
be in terms understandable to a layman. The judge or mental
health review officer may review any relevant information even if
it would be normally excluded under rules of evidence if he
believes that such information is reliable. The person or his
representative shall have the right to ask questions of the
physician and of any other witnesses and to present any relevant
information. At the conclusion of the review, if the judge or the
review officer finds that the person is severely mentally disabled
and in need of continued involuntary treatment, he shall so
certify. Otherwise, he shall direct that the facility director or his
designee discharge the person.

50 P.S. 7303(c)(1).

Section 303 further provides,

J-A01039-17

(d) CONTENTS OF CERTIFICATION. -A certification for extended
involuntary treatment shall be made in writing upon a form
adopted by the department and shall include:

(1) findings by the judge or mental health review
officer as to the reasons that extended involuntary
emergency treatment is necessary;

(2) a description of the treatment to be provided
together with an explanation of the adequacy and
appropriateness of such treatment, based upon the
information received at the hearing;

(3) any documents required by the provisions of
section 302;

(4) the application as filed pursuant to section
303(a);

(5) a statement that the person is represented by
counsel; and

(6) an explanation of the effect of the certification,
the person's right to petition the court for release
under subsection (g), and the continuing right to be
represented by counsel.

(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.

_6_

J-A01039-17

50 P.S. § 7303(d), (g).

Here, the record reveals that N.R. was afforded all process due under
section 303. He was present and represented by counsel at an informal
hearing following which a mental health review officer determined and
certified that he was severely mentally disabled and in need of continued
involuntary treatment. 50 P.S. § 7303(a)-(c). He was then informed of his
right to petition for review of that certification. 50 P.S. § 7303(g). The
certification itself meets the requirements outlined in 50 P.S. § 7303(d).

While there is no timeframe in section 303(g) outlining when a petition
for review to the court of common pleas must be filed, the statute which
governs appeals generally provides for a 30-day appeal period. See 42
Pa.C.S. § 5571 (“Except as otherwise provided in subsections (a) [relating to
appeals to the appellate courts] and (c) [outlining exceptions not applicable
herein] and in section 5571.1 [...], an appeal from a tribunal or other
government unit to a court or from a court to an appellate 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.”) Our
Supreme Court has observed that a mental health review officer is “a law-
trained, quasi-judicial officer who prepares a certification of findings ‘as to
the reasons that extended involuntary treatment is necessary and a

description of the treatment to be provided[.]"' In re K.L.S., 934 A.2d 1244,

_7_

J-A01039-17

1247-48 (Pa. 2007) (quoting 50 P.S. § 7303(d)). Accordingly, a proceeding
before a mental health review officer is an appeal from a tribunal or other
government unit subject to the 30-day appeal period under section 5571.

Thus, N.R. was required to petition for review of his section 303
commitment within 30 days of that commitment. He did not do so.
Appellants baldy assert that N.R.'s mental condition precluded him from
waiving his right to review. However, this argument is underdeveloped.6
Moreover, N.R. waited three years to raise this issue and does not allege
that he timely sought expungement upon becoming mentally sound. Thus,
his argument fails.7

Accordingly, we find no error in the trial court's denial of Appellants'

petition for expungement. ]acobs, 15 A.3d at 511.

 

6 The cases relied upon by Appellants on this point, Wolfe v. Beal, 384 A.2d
1187 (Pa. 1978) and Commonwealth v. Armstrong, 434 A.2d 1205 (Pa.
1981), are inapplicable here. In Wolf, the appellant's illegal involuntary
commitment was made pursuant to the now-expired Mental Health and
Intellectual Disability Act of 1966. Our Supreme Court held that where a
commitment is determined to be illegal, records of that commitment shall be
expunged. As Appellee herein points out, “Wolf did not create an
independent action to challenge a commitment, nor does it allow for
statutorily mandated appeal timeframes [of the MHPA] to be circumvented.”
Appellee's Brief at 11. Armstrong does not involve the MHPA at all, but
holds that person who successfully completes an accelerated rehabilitative
disposition program is entitled to expungement of his or her arrest record.
Thus, we find neither case persuasive to the arguments presented in this
appeaL

7 Indeed, Appellants seemingly acknowledge abandonment of this issue in
favor of arguing that public policy supports expungement. Appellants' Brief
at 14.

_ 8 _

J-A01039-17

Order affirmed. Motion to strike denied. Jurisdiction relinquished.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 4[6[2017

