J-A07011-16

                            2016 PA Super 165

                                              IN THE SUPERIOR COURT OF
IN RE: A.J.N.                                       PENNSYLVANIA




APPEAL OF: A.J.N.

                                                   No. 653 WDA 2015


                    Appeal from the Order March 25, 2015
              In the Court of Common Pleas of Lawrence County
                  Civil Division at No(s): 70071 of 2014 M.D.



BEFORE: BOWES, MUNDY AND JENKINS, JJ.

OPINION BY BOWES, J.:                               FILED JULY 22, 2016

     A.J.N. appeals the March 25, 2015 order denying his petition to

expunge two involuntary commitment proceedings instituted against him.

Since the record establishes that the procedural requirements of the Mental

Health Procedures Act (“the MHPA”), 50 P.S. §§ 7101, et seq. were not

followed at either proceeding, we reverse.   We remand and direct that all

records of the involuntary commitment proceedings in question be expunged

and destroyed.

     Appellant instituted this action against the Lawrence County Office of

Mental Health and Mental Retardation and the Pennsylvania State Police,

Appellee, by filing a petition for expungement of two three-day involuntary

commitments that he had undergone pursuant to 50 P.S. § 7302 (“§ 302”)
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of the MHPA.   Appellant thereafter filed an amended petition, wherein the

following averments were made.        He was born in October, 1982, in New

Castle, Pennsylvania. After attending high school, he briefly went to college,

transferred to a technical school, and then dropped out of school altogether.

Appellant thereafter worked at various part-time jobs for two years.

      As a young man, Appellant had a drug-addiction problem. In 2004, he

was involuntarily committed twice under § 302 of the MHPA for three days.

The first commitment occurred on May 27, 2004, after Appellant’s

grandmother indicated that he was a danger to himself.        The second one

transpired on November 6, 2004, and was based on a report to police by

Appellant’s father that Appellant was a danger to himself.             On both

occasions,   Appellant   was      undergoing   withdrawal   from   drugs   and

experiencing physical distress.

      By 2005, Appellant was free from his addiction. That year, he enlisted

in the United States Army and, after nine years, progressed to the rank of

Sergeant First Class. During his tenure with the Army, Appellant was twice

deployed to Afghanistan and successfully completed the following: 1) the

United States Army Airborne, Air Assault, and Pathfinder Schools; 2) the

Warrior Leader Course; 3) the Combat Life Saver Course; 4) the United

States Army Combatives School, and 5) the Advanced Leader Court.

Appellant also was awarded four commendation medals, two achievement

medals, two good-conduct medals for honorable and faithful service, the

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Afghanistan Campaign metal, and the NATO medal. Additionally, Appellant

earned the Army service and global war on terrorism ribbon, non-

commissioned officer developmental ribbons, two overseas ribbons, the

parachutist badge, the air assault badge, the driver badge, the expert and

combat infantryman’s badges, and the pathfinder badge.

       When he instituted this case, Appellant was serving as an airborne

instructor at the United States Army Airborne School at Fort Benning,

Georgia, and held a secret security clearance.      His supervisors considered

him to be an outstanding and competent leader, both in combat and training

environments.

       In this action, Appellant sought relief from the prohibition against

carrying firearms applicable to him due to his § 302 commitments. See 18

Pa.C.S. § 6105(c)(4).1 He premised this right upon 18 Pa.C.S. § 6105(f)(1),

which states: “Upon application to the court of common pleas under this

subsection by an applicant subject to the prohibitions under subsection

____________________________________________


1
  Section 6105 of the Crimes Code prohibits certain persons from possessing
firearms and states in pertinent part: “ A person . . . whose conduct meets
the criteria in subsection (c) 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).
Persons meeting the criteria of subsection (c) include someone who “has
been . . . involuntarily committed to a mental institution for inpatient care
and treatment under section 302, . . . [of the] Mental Health Procedures
Act.” 18 Pa.C.S. § 6105(c)(4).




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(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.”

       In addition, Appellant sought expungement and destruction of all

records from the two involuntary commitments pursuant to 18 Pa.C.S. §

6111.1(g),2 challenging the sufficiency of the evidence upon which each

____________________________________________


2
    That provision states:

        (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 Act2 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
(Footnote Continued Next Page)


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commitment was based. As an alternative basis for expungement, Appellant

asserted that the commitments in question “failed to comply with the

requirements of the Pennsylvania Mental Health Procedures Act.” Amended

Petition for Expungement of Involuntary Civil Commitment, 9/30/14, at ¶¶

30, 48. Based upon violations of procedural mandates of that Act, Appellant

claimed that the commitments were “invalid, and illegal” as well as “a

violation of his right to due process of law.” Id. Appellant demanded that

the commitments “be declared null and void and . . . vacated and the

records thereof” expunged and destroyed. Id.

      At a hearing, these issues were fully addressed.   Appellant claimed

that, pursuant to § 6111.1(g), there was not sufficient evidence to support

either commitment since he expressed only suicidal ideation due to drug

withdrawal. Appellant additionally asked the trial court to expunge both of

the records since “the procedure protections and mandates delineated in the

Mental Health Procedures Act were not followed.” N.T. Hearing, 10/20/14,

at 2-3.



                       _______________________
(Footnote Continued)

      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. § 6111.1(g).




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       At the conclusion of the proceedings, the trial court determined that

Appellant’s right to possess a firearm could be restored under § 6105(f)(1)

in   that    Appellant’s   actions    after     his   2005   enlistment   demonstrated

unequivocally that he could possess a firearm without any risk to himself or

others. The court, however, refused to expunge the two proceedings either

under § 6111.1(g) or due to violations of the procedures outlined in the

MHPA.       Since the records of the § 302 commitments were not expunged,

Appellant remained subject to a federal prohibition against possessing a

firearm.3

       Appellant thereafter filed this appeal. He raises three allegations:

                                               ISSUE I.
____________________________________________



3
   Specifically, 18 U.S.C. § 922(g)(4) prohibits anyone who was ever
committed to a mental institution from possessing a firearm. We note that a
federal district court recently concluded that this provision violated the
Second Amendment constitutional right to bear arms as applied to an
individual whose circumstances were similar to those at issue herein. Keyes
v. Lynch, 2016 WL 3670852 (M.D.Pa. 2016). In Keyes, there were two
plaintiffs, one of whom was Johnathan Yox. The federal district court ruled
that Yox was entitled to privately own a gun as the federal prohibition was
infirm as applied to him. Yox was involuntarily committed as a juvenile after
taking steps to commit suicide while experiencing a very stressful life event,
his parents’ divorce. After that institutionalization, Vox went on to serve in
the United States Army and then became a state correctional officer. Like
Vox, Appellant herein was undergoing a stressful life event, drug withdrawal,
when he made threats to harm himself. Additionally, Appellant thereafter
ceased using drugs and led an exemplary life in service to his country, as
had Yox. Appellant herein has not raised a Second Amendment challenge to
the constitutionality of § 922(g)(4) as applied to him.




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                 EXAMINING PHYSICIANS' FINDINGS INSUFFICIENT
             Did the trial court make an error of fact and law when it
      failed to hold that both of the involuntary commitments must be
      expunged because the findings that the examining physicians
      made in both the 302 proceeding of May 27, 2004 and that of
      November 6, 2004 were insufficient as a matter of fact and of
      law to support emergency impatient treatment under Section
      302 of the Pennsylvania Mental Health Procedures Act (50 P.S.
      § 7302) (hereinafter "MHPA ") thus requiring expungement of
      the records thereof?

                                    ISSUE II.

            VIOLATIONS OF THE MHPA'S PROCEDURAL DUE PROCESS
                           REQUIREMENTS

            Did the trial court make an error of law when it failed to
      hold that both of the involuntary commitments must be
      expunged because the procedural due process protections and
      mandates delineated in the MHPA were violated in both the 302
      proceeding of May 27, 2004 and November 6, 2004 resulting in
      both the commitments being improper, invalid, and illegal and
      requiring expungement of the records thereof?

                                   ISSUE III.

              WRONGFUL ADMISSION INTO EVIDENCE OF HEARSAY
                        MEDICAL OPINIONS

            Did the trial court make an error of law when it failed to
      sustain A.J.N.'s counsel's hearsay objections to the admission
      into evidence of the medical opinions and conclusions contained
      within those portions of the 302 application forms that
      contained the examining physicians' statements of the results of
      the examinations of both the May 27, 2004 and November 6,
      2004 commitments?

Appellant’s brief at 3.

      Initially, we note: “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) (citing

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J-A07011-16



Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa.Super. 2005)).

Herein, we agree with Appellant’s second position, wherein he avers that he

is entitled to expungement of both civil commitments due to a violation of

the due process/procedure mandates of the MHPA.            We therefore do not

address either the evidentiary sufficiency of the commitments or the hearsay

issue.

         Appellant’s specific position in this appeal is that he was detained and

driven by police       to   the   mental health facilities for   his involuntary

commitments in violation of the procedural provisions of § 302(a) of the

MHPA. The MHPA permits a person to be taken into custody and transported

to a mental health facility in accordance with the following procedures:

                (a)      Application      for     Examination.--Emergency
         examination may be undertaken at a treatment facility upon the
         certification of a physician stating the need for such examination;
         or upon a warrant issued by the county administrator authorizing
         such examination; or without a warrant upon application by a
         physician or other authorized person who has personally
         observed conduct showing the need for such examination.

               (1) Warrant for Emergency Examination.--Upon
               written application by a physician or other
               responsible party setting forth facts constituting
               reasonable grounds to believe a person is severely
               mentally disabled and in need of immediate
               treatment, the county administrator may issue a
               warrant requiring a person authorized by him, or any
               peace officer, to take such person to the facility
               specified in the warrant.

               (2) Emergency Examination Without a Warrant.--
               Upon personal observation of the conduct of a
               person constituting reasonable grounds to believe


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J-A07011-16



           that he is severely mentally disabled and in need of
           immediate treatment, [a] physician or peace officer,
           or anyone authorized by the county administrator
           may take such person to an approved facility for an
           emergency examination. Upon arrival, he shall make
           a written statement setting forth the grounds for
           believing the person to be in need of such
           examination.

50 P.S. § 7302 (a).

     Herein, the record establishes that the requirements of § 302(a) were

violated in that police, when they assumed custody of Appellant and drove

him to the mental health facilities, had neither personally viewed behavior

supporting a belief that Appellant was in need of involuntary treatment nor

had a warrant been issued. Appellant, his grandmother, and his grandfather

all testified that, in both cases, police were called.    Thereafter, police

immediately detained Appellant and transported him to a mental health

facility to await examination by a physician.   This procedure was followed

during both commitment proceedings, N.T. Hearing, 10/20/14, at 14, 16,

23, 24-25, 33, 34, and Appellee did not present any proof to the contrary.

     The applications for involuntary emergency examination and treatment

from both proceedings, which were admitted into evidence, indicated that

police purportedly took Appellant into custody and to the mental health

facilities pursuant to a warrant issued by the county administrator.

Application for Involuntary Emergency Examination and Treatment, 5/27/04

at 3 (where Appellant’s grandmother, based upon information provided in



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J-A07011-16



the application, asked that “The County Administrator issue a warrant

authorizing a policeman or someone representing the County Administrator

[to] take the patient to a facility for examination and treatment.”);

Application for Involuntary Emergency Examination and Treatment, 11/6/04,

at 3 (where Appellant’s father, based upon information provided in the

application,   asked   that   “The   County    Administrator   issue   a   warrant

authorizing a policeman or someone representing the County Administrator

[to] take the patient to a facility for examination and treatment.”).

      With respect to the first commitment, the county administrator issued

a warrant allowing Appellant to “be taken to and examined” at the mental

health facility “[b]ased upon representations made to” him by Appellant’s

grandmother.     Application for Involuntary Emergency Examination and

Treatment, 5/27/04, at 5.        As to the second commitment, the county

administrator issued a warrant allowing Appellant to “be taken to and

examined” at the mental health facility “[b]ased upon representations made

to” him by Appellant’s father.        Application for Involuntary Emergency

Examination and Treatment, 11/6/04, at 5.

      The default occurred because the warrants were not issued until after

Appellant had arrived at the facilities, and Appellant was not take into

custody pursuant to the warrants, as represented by Appellee.                Scott

Baldwin, the county administrator who executed both warrants, admitted at

the hearing that the warrants in question were issued upon written

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J-A07011-16



representations of Appellant’s grandmother and father, respectively. Id. at

58. Mr. Baldwin also conceded that the written applications for him to issue

the warrants were “completed at the hospital after the patient had already

been transported to the hospital.”     Id. (emphasis added).        Thus, it is not

subject to dispute that, for purposes of both commitments, police detained

Appellant and drove him to the mental health facility.           They did not view

behavior allowing them to perform these actions, otherwise issuance of the

warrants would not have been necessary. Moreover, police did not possess

warrants when they assumed custody of Appellant and transported him to

the facility, as Mr. Baldwin admitted that he signed the warrants after these

actions were taken.

      The language of § 302(a) is clear and unequivocal.                It permits

transportation to and an emergency examination at a mental health facility

“upon the certification of a physician stating the need for such examination,”

or “upon a warrant issued by the county administrator authorizing such

examination,” or “without a warrant upon application by a physician or other

authorized person who has personally observed conduct showing the need

for such examination.” 50 P.S. § 7302(a). Herein, there was no physician’s

certification, Appellant was taken by police to the facility before the warrant

was   issued,   and   the   police   failed    to   personally   observe   conduct

demonstrating the need for such an examination.




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      The subsections of § 302(a) reiterate these mandates.          Under §

302(a)(1), after a responsible party or physician indicates the need to do so,

the county administrator can issue a warrant permitting a person authorized

by him or any police officer “to take such person to the facility specified in

the warrant.” In this case, Appellant already had been transported to the

facility specified in the warrant when that document was issued.      Section

302(a)(2) states that a physician, police officer or someone authorized by

the county administrator is permitted to transport a person to an approved

facility for an emergency examination without a warrant only upon the

personal observation of conducting authorizing emergency involuntary

treatment. Herein, Appellant was taken into custody by police. At the time,

police did not have a warrant and had not personally observed any conduct

on the part of Appellant providing grounds for an involuntary commitment,

otherwise the county administrator would not have needed to issue a

warrant based upon the representations of the responsible parties in

question. Hence, § 302(a) was violated.

      The government’s authority to involuntarily commit persons who are a

danger to themselves or others arises from the state’s inherent police

powers. In re Hutchinson, 454 A.2d 1008, 1010 (Pa. 1982). The person

so confined has a countervailing liberty interest protected by the due process

clause of the Constitution. Id. As our Supreme Court clearly delineated in

In re Hutchinson, “involuntary civil commitment of mentally ill persons

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J-A07011-16



constitutes deprivation of liberty and may be accomplished only in

accordance with due process protections.” Id. at 1010.      The MHPA is “an

enlightened legislative endeavor to strike a balance between the state's valid

interest in imposing and providing mental health treatment and the

individual patient's rights.” Id. (citation omitted).   The MHPA specifically

embodies these principles by stating that its provisions must “be interpreted

in conformity with the principles of due process[.]” 50 P.S. § 7102. As we

noted in In re Ryan, 784 A.2d 803, 807 (Pa.Super. 2001), “The legislative

policy reflected in the Mental Health Procedures Act is to require that strict

conditions be satisfied before a court order for commitment shall be issued.

Such a policy is in accord with the recognition that commitment entails a

massive deprivation of liberty.”

      In this case, police, without Appellant’s consent, took him into their

custody and transported him to a mental health facility to await a medical

examination. There are significant liberty interests at stake when a person

is detained by police, transported to a mental health facility, and confined

therein until an examination by a physician is conducted.     Section 302(a)

outlines the procedure by which those actions can be exercised in conformity

with due process safeguards so as to protect these liberty interests. In this

case, the strictures of § 302(a) were ignored.    Without personally viewing

any behavior on Appellant’s part that would support the belief that he was a

danger to himself or others, police assumed control over Appellant’s person

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J-A07011-16



and forcibly conveyed him to the mental health facility without a warrant.

The warrant was only issued after Appellant was already at the facility

awaiting an examination.4

       Even before enactment of the MHPA, our case law provided that, if a

person is involuntarily committed in violation of his due process rights, he is

entitled to expungement of the proceedings and the destruction of all

records relating thereto. In Wolfe v. Beal, 384 A.2d 1187 (Pa. 1978), the

appellant was involuntarily committed to a mental health facility for ten days

without a hearing.      The then-applicable act, the Mental Health and Mental

Retardation Act of 1966, permitted emergency involuntary detentions

without a hearing for ten days.            The court of common pleas was then

required to hold a hearing and find that the involuntarily committed patient

was in need of continued care. In Wolfe, the hearing occurred, the court

found appellant to be mentally ill and in need of care and treatment, and

committed her to the mental health facility until such time as the director

determined he did not need further treatment.

       After her release, the appellant petitioned the court of common pleas

for a declaration that her commitment was improper due to the fact that the
____________________________________________


4
  Appellee maintains that Appellant was taken into custody with a warrant.
The record contradicts this representation since the county administrator
admitted that, during both involuntary commitments, he did not approve of
the warrant until after police had brought Appellant to the mental health
facility.



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J-A07011-16



commitment procedures violated her due process rights.        Specifically, the

appellant “was committed after hearings of which she was not apprised and

at which she neither appeared nor had representation.” Id. at 1190, n. 1.

Appellant also requested an order expunging the proceedings, and a

directive that any hospital records arising from the commitment be

destroyed. The court of common pleas determined that the proceeding in

question had violated the appellant’s due process rights and concluded that

it was void and had to be expunged. Despite this finding, the court declined

to order destruction of the hospital records.

      The Commonwealth Court affirmed, but our Supreme Court reversed.

It concluded that, since an exonerated criminal defendant had the right to

the expungement of the criminal records, a person subjected to an illegal

involuntary commitment procedure should enjoy the same right. The Wolfe

Court ruled that a person who is committed to a mental health facility in

violation of his or her due process rights is entitled to destruction of the

records of that commitment.

      In re Ryan, supra, is instructive. At issue therein were § 302 and 50

P.S. § 7303 (“§ 303”) of the MHPA.           Under § 302, a person may be

involuntarily committed for up to five days, but a physician must examine

the patient within two hours of his arrival at the facility to confirm the need

for involuntary treatment.    If extended treatment is required, a physician

may apply for such involuntary treatment for an additional twenty days

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J-A07011-16



pursuant to § 303. The application for extended involuntary treatment must

be served on the patient and filed in the trial court, and an informal hearing

must be held before a judge or mental health review officer within twenty-

four hours of the filing of the application for extended involuntary treatment.

After the informal hearing, if the judge or mental health review officer

certifies the patient is severely mentally disabled, he or she may authorize

up to an additional twenty days of treatment. When the certification is made

by the mental health review officer instead of a judge, the patient may

petition the trial court to review the certification, and a hearing must be held

on that petition within seventy-two hours.

      In In re Ryan, the § 303 review hearing by the mental health review

officer was not conducted within twenty-four hours of the application for

extended involuntary treatment, and the application was not filed with the

court of common pleas before that hearing.       Additionally, the patient had

petitioned for review by the trial court after the mental health review officer

conducted the hearing. The trial court did not examine the case within the

seventy-two-hour time limit required by the MHPA. We concluded that the

time and filing requirements of §§ 302 and 303 were designed to protect a

patient’s due process rights and that their violation required the grant of

relief to the patient. We vacated the certification for extended involuntary

treatment and directed that all records pertaining to the matter be

expunged.

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     Our decision in In re Chiumento, 688 A.2d 217 (Pa.Super. 1997),

likewise addressed the scenario where the specific due process protections

provided to a person under MHPA were ignored. We stated, “Because the

specific procedural protections and mandates delineated in the MHPA were

not followed,” the involuntary commitment in question was improper, the

appellant had to be discharged, and the record of the involuntary

commitment had to expunged. Id. at 218.       We concluded that a mental

health patient's need for treatment cannot trump compliance with the due

process requirements outlined in the MHPA, even when the due process

violation appears to be minimal.   See Commonwealth v. C.B., 452 A.2d

1372 (Pa.Super. 1982) (C.B. was not given a copy of a petition three days in

advance of hearing held pursuant to § 7304 (relating to court-ordered

involuntary treatment not to exceed ninety days), as required by MHPA; C.B.

was entitled to expungement of all records of commitment). See also In

re Condry, 450 A.2d 136, 137 (1982) (vacating an order that upheld an

involuntary commitment because “the statutory requirements [of the MHPA]

were not strictly adhered to[.]”); Cf. In re J.M., 726 A.2d 1041 (Pa. 1999)

(holding proceedings valid where county administrator issued warrant before

person was taken to facility for involuntary treatment and where warrant

supported the finding that there was a reasonable probability that patient

was in need of emergency involuntary commitment under § 302). Thus, the

case law uniformly mandates expungement and destruction of records when

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the procedural, due process requirements of the MHPA are violated during a

commitment proceeding.

      In this case, the record establishes unequivocally that § 302(a) of the

MHPA was violated.      This provision protects critical liberty interests and

establishes the procedures by which a person may be involuntarily detained

by police, transported to and placed in a mental health treatment facility,

and await and undergo an examination by a physician. The violation of its

strictures in the present case mandates, under the applicable legal authority,

that the records of the two civil commitments at issue herein be expunged

and that all records of those commitments be destroyed.

      Order reversed.    The involuntary commitment of J.N. conducted on

May 27, 2004 is ordered to be expunged and all records of that commitment

are to be destroyed.    The involuntary commitment of J.N. conducted on

November 16, 2004 is ordered to be expunged and all records of that

commitment are to be destroyed. Case remanded. Jurisdiction relinquished.

      Judge Mundy joins the opinion.

      Judge Jenkins notes dissent.




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J-A07011-16



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/22/2016




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