J-S50024-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: B.W.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: B.W.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 289 WDA 2019

               Appeal from the Order Entered February 13, 2019
      In the Court of Common Pleas of Blair County Civil Division at No(s):
                                2018 GN 2882


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.:                             FILED NOVEMBER 1, 2019

         B.W. (Appellant) appeals from the order denying his petition to expunge

mental health records relating to his involuntary commitment under the

Mental Health Procedures Act (MPHA), 50 P.S. § 7302 (Section 302). After

careful consideration, we reverse.

        Appellant was involuntarily committed to the Psychiatric Wing at

University of Pittsburgh Medical Center (UPMC) on September 6, 2018.

Appellant initially “drove to his doctor’s office,” where he presented complaints

of “Anxiety.” Trial Court Opinion, 3/1/19, at 13, 15. Appellant was having

problems at work, where he was responsible for “splicing lines in a bucket

truck,” and experiencing conflict with co-workers and union representatives.

Id. at 12-14.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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      The treating physician, Dr. Terry Ruhl, M.D., indicated the visit diagnosis

as “Agitation-Primary,” and noted:

      Anxiety and anger feelings. Making credible threats of violence
      against a co-worker but is here for help. Girlfriend has concerns
      for his safety.

      Crisis here now — expect they will recommend inpatient
      treatment, involuntary if necessary. UPMC police here for safety,
      but he has made no threats against staff.

Appellant’s Exhibit #1, at *1.

      In   the   application   for   involuntary   emergency   examination   and

treatment, Dr. Joseph Sumereau, D.O., concluded that Appellant was a

“[c]lear and present danger to others.”        Pennsylvania State Police (PSP)

Exhibit #1, at 3. Dr. Sumereau stated:

      I, Dr. Sumereau, was present while patient stated that he would
      strangle another person to death. He then gave the name of the
      intended victim. Patient stated that he was not sure when or
      where he would perform this act, but he would do it the next time
      he saw the person.

Id.

      Appellant was subsequently transported to the Psychiatric Wing at

UPMC. There, Dr. Mercedes Boggs, M.D., performed an examination pursuant

to Dr. Sumereau’s application for involuntary emergency examination.         Dr.

Boggs noted:

      [Appellant] is homicidal toward his coworker and admits to stating
      that he would strangle him. [Appellant] is very angry and
      agitated, danger to others.         Not receptive to voluntary
      admission[.]

PSP Exhibit #1, at 7.

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      In completing the “RESULTS OF EXAMINATION” portion of the

“APPLICATION      FOR     INVOLUNTARY    EMERGENCY        EXAMINATION    AND

TREATMENT,” Dr. Boggs checked the box indicating that Appellant “was in

need of treatment” and “should be admitted to a facility designated by the

County Administrator for a period of treatment not to exceed 120 hours.” PSP

Exhibit #1, at 7.   Consequently, Appellant was involuntarily committed on

September 6, 2018.

      On October 2, 2018, Appellant filed a petition to expunge mental health

record.   The trial court convened a hearing on January 4, 2019, at which

Appellant and his girlfriend, A.G., testified. After receiving legal memoranda

from the parties, the trial court issued an order and opinion denying

Appellant’s petition on February 13, 2019. Appellant filed a timely appeal.

Both Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

      Appellant presents a single issue for our review:

      Whether or not the lower court erred by denying and dismissing
      the Petition to Expunge Mental Health Record?

Appellant’s Brief at 4.

      Appellant argues that the Commonwealth failed to produce sufficient

evidence that he acted in furtherance of his threat to harm his co-worker. See

Appellant’s Brief at 10. Appellant concedes that he made “a statement about

strangling a co-worker,” but emphasizes “there was no evidence presented

that he ever committed any acts in furtherance of said statement.” Id.


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       We review the trial court’s denial of expungement for an abuse of

discretion.    Commonwealth v. Smerconish, 112 A.3d 1260, 1263 (Pa.

Super. 2015) (citations omitted).              However, Appellant’s question of

evidentiary sufficiency presents a “pure question of law, over which our

standard of review is de novo and our scope of review is plenary.”          In re

Vencil, 152 A.3d 235, 241 (Pa. 2017), cert. denied sub nom. Vencil v.

Pennsylvania State Police, 137 S. Ct. 2298, 198 L. Ed. 2d 751 (2017).

       In his petition for expungement, Appellant averred that the record of his

involuntary commitment is “very detrimental” to him “employment wise and

in his ability to carry a firearm.” Appellant’s Petition to Expunge Mental Health

Record, 10/2/18, at *3.

       Section 6111.1(g)(2) of the Uniform Firearms Act (UFA) provides:

       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.

18 Pa.C.S.A. § 6111.1(g)(2).1

       Our Supreme Court has held that “[a] sufficiency review pursuant to

[S]ection 6111.1(g)(2) of the UFA is merely a mechanism to expunge the

____________________________________________


1 While Appellant does not specifically reference Section 6111.1(g)(2) in his
petition, the trial court cites the statute as Appellant’s avenue for relief. Trial
Court Opinion and Order, 2/13/19, at 3 (“[Appellant] seeks expungement of
his 302 Commitment pursuant to §6111.1(g)(2) . . .”).

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PSP’s record of an individual’s Section 302 commitment to remove this barrier

to his or her possession and control of firearms.” Vencil, 152 A.3d at 245

(footnote omitted). Therefore, a Section 6111.1(g)(2) expungement petition

does not require further evidentiary proceedings; rather, “the plain language

of section 6111.1(g)(2) directs a trial court to review the physician’s findings,

made at the time of the commitment, to determine whether the evidence

known by the physician at the time, as contained in the contemporaneously-

created record, supports the conclusion that the individual required

commitment under one (or more) of the specific, statutorily-defined

circumstances.” Id. at 242.

      Further,

      Section 6111.1(g)(2) does not . . . authorize a trial court to
      “redecide[ ] the case,” operating as a “substitute[ ]” for the
      physician who originally decided the 302 commitment was
      medically necessary.

Vencil, 152 A.3d at 244 (citations omitted).

      The Supreme Court concluded that under Section 6111.1(g)(2), a trial

court is required “to review only the sufficiency of the evidence to support the

302 commitment, limited to the information available to the physician at the

time he or she made the decision to commit the individual, viewed in the light

most favorable to the physician as the original decision-maker to determine

whether his or her findings are supported by a preponderance of the

evidence.” Id. at 237.




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     Section 301, which defines who may be subject to involuntary

emergency examination and treatment, provides:

     (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, as
     defined in subsection (b)[.]

     (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. . . . For
     purposes 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.

50 P.S. § 7301(a), (b) (emphasis added).

     To determine if an individual meets the above criteria, Section 302

provides:

     (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

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           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 that he is
           severely mentally disabled and in need of immediate
           treatment, and 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.

     (b) Examination and Determination of Need for Emergency
     Treatment.--A person taken to a facility shall be examined by a
     physician within two hours of arrival in order to determine if the
     person is severely mentally disabled within the meaning of section
     301(b) and in need of immediate treatment. If it is determined
     that the person is severely mentally disabled and in need of
     emergency treatment, treatment shall be begun immediately.

     ...

     (d) Duration of Emergency Examination and Treatment.--A
     person who is in treatment pursuant to this section shall be
     discharged whenever it is determined that he no longer is in need
     of treatment and in any event within 120 hours[.]

50 P.S. § 7302(a), (b), & (d) (footnotes omitted).

     Appellant admits “there was a threat made to a co-worker” in the

presence of medical professionals on September 6, 2018. See Appellant’s

Brief at 19; see also N.T., 1/4/19, at 10. However, Appellant emphasizes

“there was no evidence that this threat was accompanied by an act in

furtherance of said threat to commit harm.” Appellant’s Brief at 19-20. Upon

review, we agree.

     The trial court commented at length:

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           In applying the Vencil standard, there can be no dispute
     that [Appellant] made threats of harm to another individual,
     specifically, his co-worker. However, there remains the legal
     requirement that [Appellant] took an “act in furtherance of the
     threat of harm.” In this particular case, there is no evidence that
     [Appellant] ever communicated this threat of harm to the specific
     co-worker, nor to any other third party, prior to driving himself to
     the doctor’s office. There is no evidence that [Appellant] engaged,
     attempted to engage, in any physical altercation with this co-
     worker in any fashion. There is no evidence that [Appellant] did
     any research on the internet relative to how to strangle or harm
     another individual. There is no evidence that he sent any
     threatening text messages, notes, letters or other threatening
     communication of any nature whatsoever toward this co-worker,
     or to any third party about this co-worker.

           In its Memorandum of Law, the Blair County Department of
     Social Services submits that [Appellant] “had a very explicit plan
     in place to carry it (the threatened harm) out.” Blair County
     Dept.’s Memorandum of Law, p. 2. In its Memorandum, the PSP
     asserts that [Appellant] made the threat toward the co-worker “at
     the time he had a specific plan of how he would harm his co-
     worker and when.” PSP Memorandum, p. 6.

            In considering all of the above, it seems to us that the
     central issue is whether the following comment by Dr. Sumereau
     satisfies the legal requirement that [Appellant] committed an act
     in furtherance of his threat to commit harm to another:

           “Patient stated that he was not sure when or where
           he would perform this act, but he would do it the next
           time he saw this person.” PSP Ex. 1, p. 3 of 7.

           To answer this question, however, we are to apply the
     standard set forth in Vencil, supra. In doing so under the
     preponderance of the evidence standard, we find that the
     evidence known by the physician at the time, as contained in the
     contemporaneously-created record, supports the conclusion that
     [Appellant] presented a clear and present danger to others,
     requiring a 302 commitment. We must give deference to the
     physician, as the original factfinder, as the physician examined
     and evaluated [Appellant], and was able to observe his demeanor.


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      Based upon the physician’s training, knowledge and experience,
      she determined that a 302 commitment was medically necessary.

             In so ruling, however, we find no fault with [Appellant]. In
      fact, we find his testimony, and the testimony of [A.G.], to be
      credible. We understand why [Appellant] felt angry and frustrated
      with the situation at work. [Appellant] is to be commended for
      going to his family doctor’s office to seek help, rather than taking
      matters into his own hands. As set forth above and in following
      the guidelines announced . . . in Vencil, our scope of review is
      very limited.

Trial Court Opinion and Order, 2/13/19, at 15-17.

      Mindful of our de novo standard of review and plenary scope of review,

we have carefully reviewed the record and prevailing legal authority and,

contrary to the trial court, conclude that Appellant did not “commit an act in

furtherance of the threat to commit harm,” as prescribed in 50 P.S. § 7301(b).

The Supreme Court in Vencil specified:

      [T]he phrase “sufficiency of the evidence” is a term of art that has
      a precise meaning. See Commonwealth v. Hicks, 365 Pa. 153,
      74 A.2d 178, 178 (Pa. 1950) (“[I]t is axiomatic that words having
      a precise and well-settled legal meaning must be given that
      meaning when they appear in statutes unless there is a clear
      expression of legislative intent to the contrary.”); see also
      generally Morissette v. United States, 342 U.S. 246, 263, 72
      S.Ct. 240, 96 L.Ed. 288 (1952) (“[W]here Congress borrows terms
      of art in which are accumulated the legal tradition and meaning of
      centuries of practice, it presumably knows and adopts the cluster
      of ideas that were attached to each borrowed word in the body of
      learning from which it was taken and the meaning its use will
      convey to the judicial mind unless otherwise instructed.”).

Vencil, 152 A.3d at 242–43.

      In considering the “precise meaning” of the words “commit an act in

furtherance,” we find that the trial court improperly construed Appellant’s



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statement “that he was not sure when or where he would perform this act,

but he would do it the next time he saw this person,” as an “act in

furtherance.”

       Recently, this Court was presented with analogous facts in Interest of

K.M., 1677 MDA 2018, 2019 WL 3243142 (Pa. Super. July 17, 2019)

(unpublished memorandum), which we find persuasive.2              In K.M., the

petitioner appealed from the trial court’s denial of his petition for

expungement relating to his involuntary commitment under Section 302. Id.

at *1. The petitioner was involuntarily committed after making homicidal and

suicidal statements to employees at a medical clinic.       Id.   The petitioner

subsequently and unsuccessfully requested that the trial court expunge his

mental health records under Section 6111.1(g)(2). Id. at *2. The petitioner

then appealed to this Court, alleging that “under Section 6111.1(g)(2) of the

UFA, the evidence is insufficient to sustain his Section 302 commitment

because he did not act in furtherance of any threat to harm himself or others.”

Id. at *3. We agreed, stating:

       Instantly, based on our review of the record, in particular the
       information available to the physician at the time of [petitioner’s]
       Section 302 commitment, we conclude that the evidence was
       insufficient to support [petitioner’s] Section 302 commitment.
       Specifically, we agree with [petitioner’s] argument that the record
       is bereft of any evidence that he acted in furtherance of his threat
       to harm others or commit suicide. The record reveals only that
____________________________________________


2  Unpublished non-precedential memorandum decisions of the Superior Court
filed after May 1, 2019 may be cited for their persuasive value. Pa.R.A.P.
126(b).

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     [petitioner], at most, made certain statements at the clinic that
     led the clinic’s staff to believe that he was harboring suicidal
     ideations. Thereafter, [petitioner] returned to his sister’s home
     where the police eventually confronted him. Although [petitioner]
     admitted at the hearing to storing firearms in the shed outside of
     the house, the record does not reveal that the police or the
     physician were aware of [petitioner’s] ownership or possession of
     firearms prior to or at the time of the Section 302 commitment[.]
     The record also does not reveal that the police recovered any
     weapons, let alone firearms, when they searched [petitioner’s]
     person prior to transporting him to [Mount Nittany Medical
     Center].    Simply put, besides examples of threatening
     thoughts and statements, the record contains no evidence
     of any act undertaken by [petitioner] in furtherance of his
     threat to harm himself or others. See e.g., Vencil, 152 A.3d
     at 239 (noting an act in furtherance of suicidal ideations was
     established when the committee “fled the hospital ‘in an
     emotionally distraught state, and drove in an erratic and
     dangerous fashion with her headlamps off . . . at risk for striking
     another motor vehicle, causing a traffic accident.’”);
     Smerconish, 112 A.3d at 1264 (noting that the appellant’s
     internet research seeking painless methods of committing suicide
     constituted an act in furtherance of the threat to commit harm);
     In re R.D., 739 A.2d 548, 555 (Pa. Super. 1999) (noting that an
     elderly woman’s act of picking up her cane in an effort to hit
     another, together with verbal threats of harm, constituted an “act
     in furtherance of the threat to commit harm” under Section 301);
     [In re] Woodside, 699 A.2d [1293, 1297 (Pa. Super. 1997)]
     (noting the man’s purchase of a rifle scope from a sporting goods
     store on the day of his commitment constituted an overt act in
     furtherance of the threat to harm his estranged wife).
     Accordingly, we must conclude that all of the records of
     [petitioner’s] Section 302 commitment must be expunged and
     destroyed.

Id. at *5 (emphasis added) (footnote omitted).

     As with our holding in K.M., we conclude that the evidence of record

supports expungement of Appellant’s mental health records relating to his

involuntary commitment. Appellant asserts — correctly — that he “did not

commit an act in furtherance of said threat.” Appellant’s Brief at 13, 19-20.


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In response, neither the Blair County Department of Human Services nor the

PSP cite to any evidence that Appellant acted in furtherance of his threat. Like

the trial court, both Appellees reference Appellant’s statement that he would

perform a harmful act as the act itself.      See Blair County Department of

Human Service Brief at 4 (“In this case[,] Appellant not only made a threat to

inflict serious bodily injury or death, he had a very explicit plan to carry out

the threat[.]”); PSP Brief at 6 (“[Appellant] made a specific threat toward an

identified individual and indicated his intent to carry it out the next time he

was able.”).   While PSP attempts to distinguish our holding in K.M. by

referencing Appellant’s identification of his intended victim and manner in

which he would carry out the threat, PSP Brief at 7, the threat itself, without

more, does not constitute an act in furtherance of the threat. See K.M. at *5

(“besides examples of threatening thoughts and statements, the record

contains no evidence of any act undertaken by Appellant in furtherance of his

threat to harm himself and others.”).      Finally, we repeat the trial court’s

observation that:

      In this particular case, there is no evidence that [Appellant] ever
      communicated this threat of harm to the specific co-worker, nor
      to any other third party, prior to driving himself to the doctor’s
      office. There is no evidence that [Appellant] engaged, attempted
      to engage, in any physical altercation with this co-worker in any
      fashion. There is no evidence that [Appellant] did any research
      on the internet relative to how to strangle or harm another
      individual. There is no evidence that he sent any threatening text
      messages, notes, letters or other threatening communication of
      any nature whatsoever toward this co-worker, or to any third
      party about this co-worker.



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Trial Court Opinion and Order, 2/13/19, at 15.

     For the foregoing reasons, we reverse the order denying Appellant’s

petition to expunge mental health record, such that all records of Appellant’s

Section 302 commitment must be expunged and destroyed.

     Order reversed. Case remanded. Jurisdiction relinquished.
      Judge Colins joins the memorandum.

     Judge Lazarus files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/19




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