J-A29006-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: D.J.K.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.J.K.                          :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 726 WDA 2019

                  Appeal from the Order Entered April 17, 2019
      In the Court of Common Pleas of Allegheny County Orphans’ Court at
                            No(s): CC 629 OF 2017


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.:                           FILED MARCH 11, 2020

        Appellant, D.J.K., appeals from the trial court’s April 17, 2019 order

denying his “Petition to Vacate and Expunge the Involuntary Civil Commitment

and Petition for Restoration of Rights” (“Petition”), in which D.J.K. asked the

court to expunge the records of his involuntary commitments under 50 P.S. §

7302 (“Section 302”) and 50 P.S. § 7303 (“Section 303”) of the Mental Health

Procedures Act (“MHPA”).1        After careful review, we affirm.

        On June 4, 2017, Appellant’s spouse contacted police and emergency

medical personnel because she was concerned about Appellant’s intoxication.

“Appellant had been drinking heavily for several days and had taken pain

medication[,] as well.” Appellant’s Brief at 5. Appellant was transported to

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   50 P.S. §§ 7101-7503.
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UPMC Mercy Hospital in Pittsburgh, Pennsylvania. The following day, June 5,

2017, he indicated that he wished to go home. However, his wife consulted

with hospital staff and ultimately applied for a Section 302 involuntary

commitment of Appellant, which was approved. Appellant remained at the

hospital until June 7, 2017, when a staff member of UPMC Mercy filed a Section

303 application for the extended involuntary commitment of Appellant.

      Counsel was appointed to represent Appellant, and a hearing on the

Section 303 petition was conducted on June 9, 2017. At the outset of that

proceeding, the court acknowledged that Appellant, his wife, his physician,

and his counsel were present, and that everyone was “in agreement that

they’re looking for a bed for [Appellant], a rehab bed for his alcohol problem.

He agreed to that.” N.T. Hearing, 6/9/17, at 2. Appellant’s counsel and the

court then had the following exchange:

      [Appellant’s Counsel]: I spoke with [Appellant], and he
      understands that he’s only really being held here until they have
      an inpatient bed. And he’s willing to wait here until they have the
      bed and go and comply with inpatient treatment.

      THE COURT: Right. So this will be a stipulation to a 20-day
      inpatient/outpatient order. The inpatient here at UPMC Mercy and
      the outpatient -- well, I don’t know.

                                     ***

      THE COURT: Mercy Behavioral Health MH/MR. Thank you.

Id. at 2-3.   The proceeding then concluded, and a certification extending

Appellant’s involuntary commitment for twenty days was filed that same day.




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      Five months later, on November 30, 2017, Appellant filed the Petition

underlying the present appeal, in which he asked the court to expunge the

records of both his Section 302 and Section 303 commitments. A hearing was

conducted on March 8, 2019. There, Appellant’s counsel and the respondents,

the Pennsylvania State Police (PSP) and counsel for Allegheny County,

presented arguments and evidence before the court. Specifically, Appellant

contended that his Section 302 commitment was not based on sufficient

evidence, and that his wife had only signed the commitment forms because

she does not speak English and did not understand the nature of an

involuntary commitment. See N.T. Hearing, 3/8/19, at 3-10. In regard to

his Section 303 commitment, Appellant averred that his attorney had

rendered ineffective representation by erroneously leading him to believe that

he was stipulating to inpatient substance abuse treatment, not an involuntary

mental health commitment.       See id. at 5.   Appellant also challenged his

Section 303 commitment based on the fact that the June 9, 2017 hearing had

occurred 48 hours after the application for an extended commitment was filed,

when 50 P.S. § 7303(b) requires that the hearing be held within 24 hours

after the application is filed. Id. at 9-10.

      In response, the PSP argued that Appellant’s petition to expunge his

Section 303 commitment was untimely, as Appellant had not petitioned the

court of common pleas to review his certification for extended involuntary

commitment within 30 days. See 50 P.S. § 7303(g) (“In all cases in which

the hearing was conducted by a mental health review officer, a person made

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subject to treatment pursuant to this section shall have the right to petition

the court of common pleas for review of the certification.”).           Appellant

countered that nothing in the record indicated he had been apprised of his

right to petition the court of common pleas to challenge the mental health

review officer’s certification to commit him under Section 303.

      At the close of the hearing, the trial court took the matter under

advisement. On April 17, 2019, the court issued an order denying Appellant’s

Petition, reasoning that, inter alia, it was untimely filed. The court explained:

      [Section] []303(g)[] does not explicitly state any time frame
      within which a petition for review to the court of common pleas
      must be filed. However, an appeal that is taken from a [Section]
      []303 certification proceeding which has been conducted before a
      mental health review officer may be considered to be an appeal
      from a tribunal or other government unit. As such, the appeal
      would be subject to the thirty (30) day deadline imposed under
      42 Pa.C.S. § 55713. See, e.g., … In re K.L.S., 934 A.2d 1244,
      1247-48 (Pa. 2007) [(holding that “[t]he certification of a [mental
      health review officer] is … a ‘final adjudication or determination’)].
      If that is the controlling deadline, then the November 30, 2017
      Petition to Vacate and Expunge was untimely as to the [Section]
      []303 commitment of June 9, 2017. The validity of a [Section]
      []303 commitment which is not seasonably appealed cannot be
      challenged at a later date. See In re: Jacobs, 15 A.3d 509 (Pa.
      Super. [] 2011). If the Petition to Vacate and Expunge as to the
      [Section] []303 commitment was time-barred and the record of
      that commitment remains in place, then an expungement of
      [Section] []302 commitment is not available.
         3 [Section 5771 states: “]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.”[]

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Trial Court Opinion (TCO), 7/30/19, at 6-7.

      Appellant filed a timely notice of appeal on May 14, 2019. On July 30,

2019, the trial court issued a Pa.R.A.P. 1925(a) opinion. Herein, Appellant

states four issues for our review, which we reorder for ease of disposition:

      1. Did the lower [c]ourt have jurisdiction to hear and determine
      Appellant’s Petition to Expunge Civil Commitment and Restoration
      of Rights, although Appellant had not filed a Petition for Review
      under 50 [P.S.] § 7303(g) of his Section []303 Involuntary
      Commitment?

      2. Did the lower [c]ourt err when it failed to find that Appellant’s
      rights to due process were violated as a result of ineffective
      assistance of counsel with relation to the proceeding against
      Appellant under 50 [P.S.] § 7303 of the [MHPA]?

      3. As Appellant was subjected to an involuntary mental health
      commitment under 50 [P.S.] § 7302, and where Appellant was not
      examined within two (2) hours of entry to the hospital, and where
      examining physician findings were insufficient, and where
      deficiencies existed in the 302 warrant, did the lower [c]ourt err
      as a matter of law in failing to find that Appellant’s due process
      rights were violated?

      4. Did the lower [c]ourt abuse its discretion when it failed to find
      that there was an insufficiency of evidence as a matter of law to
      support Appellant’s involuntary mental health commitment
      pursuant to 50 [P.S.] § 7302?

Appellant’s Brief at 4.

      Appellant’s first issue challenges the trial court’s determination that his

Petition was untimely, as it was not filed within 30 days of his certification for

Section 303 involuntary commitment. In his principal brief, Appellant relies

on this Court’s decision in In re J.M.Y., 179 A.3d 1140, 1144 (Pa. Super.

2018) (en banc) (“J.M.Y. I”), which was overruled by our Supreme Court

during the pendency of Appellant’s appeal. See In re J.M.Y., 218 A.3d 404

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(Pa. 2019) (“J.M.Y. II”). In J.M.Y. I, we reviewed whether the trial court

had properly denied J.M.Y.’s petition to expunge his involuntary commitments

under both Sections 302 and 303. J.M.Y. had filed his petition over two years

after his commitments, but he alleged various due process violations of his

rights under the MHPA, including that he was not present at the Section 303

hearing; he was never informed of the nature of that proceeding, nor did he

agree to the stipulation that was entered; and he was not advised of his right

to appeal the commitment under Section 303(g). See J.M.Y. II, 218 A.3d at

414. Ultimately, our Court in J.M.Y. I concluded that we had jurisdiction to

review and vacate J.M.Y.’s commitment under Section 303. In reaching this

decision, the J.M.Y. I panel

      began its analysis with a discussion of In re Ryan, 784 A.2d 803
      (Pa. Super. 2001) (concluding that, because an individual who
      was involuntarily committed under Section 303 did not receive his
      informal hearing on the commitment petition within 24 hours as
      required by Section 303(b), nor, after he petitioned the court of
      common pleas for review of his certification by the mental health
      review officer under Section 303(g), did he receive a hearing in
      that court within 72 hours as that provision required, his due
      process rights were violated, which necessitated vacating the
      Section 303 commitment order and expunging his treatment
      records). The majority viewed In re Ryan as establishing the
      proposition that, whenever the procedures set forth in the MHPA
      are not followed in a Section 303 commitment proceeding, the
      involuntarily committed person has been denied due process, and
      the commitment must be vacated as well as the records thereof
      destroyed.

      The majority acknowledged the holding of In re Jacobs, cited by
      the trial court, that, once a person has been committed under
      Section 303, this forecloses judicial review of the Section 302
      commitment; however, it interpreted In re Ryan as establishing
      an exception to this general principle for situations where the due


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     process rights of the involuntarily committed individual were
     violated. Thus, the majority reasoned that, whenever a Section
     303 commitment does not furnish adequate due process to the
     involuntarily committed person, In re Jacobs does not preclude
     the vacation of that individual’s Section 302 commitment and
     expungement of his or her treatment records.

     The [C]ourt then recited the language of Sections 303(c)-(g) of
     the MHPA, and concluded that, based on its review of the certified
     record in this matter, “the certification was not proper and,
     therefore, the Section 303 commitment was not valid.” In re
     J.M.Y., 179 A.3d at 1145. The [C]ourt highlighted the fact that
     [J.M.Y.] testified that he was unaware that the Section 303
     commitment hearing would be held on September 23, 2012, the
     testimony of his public defender that [J.M.Y.] did not attend the
     hearing, the testimony of Sergeant Redman that he did not appear
     at such a hearing, and the notation in the Certification that
     [J.M.Y.] did not appear at the hearing.

     The [C]ourt also noted how, in its view, the Certification did not
     meet the requirements of Section 303(d) because it did not
     contain any explanation of [J.M.Y.’s] right to appeal to the court
     of common pleas under Section 303(g), nor an explanation of his
     right to continuing representation by counsel in pursuing such an
     appeal. Also, the majority pointed out that there was no evidence
     [J.M.Y.] was ever served with the Certification as required by
     Section 303(e), and it called attention to the statement in the
     discharge summary that [J.M.Y.] “won” his Section 303 hearing
     as further evidence the Certification was not valid. Accordingly,
     because it concluded [J.M.Y.’s] due process rights were violated,
     “fundamental fairness” required his Section 303 commitment be
     expunged.

J.M.Y. II, 218 A.3d at 411-12.

     J.M.Y. I was filed after Appellant filed his Petition to expunge his Section

302 and Section 303 commitments. However, the trial court found J.M.Y. I

distinguishable, concluding that “the case at hand does not present any

apparent due process infirmities.” TCO at 10.      Accordingly, the trial court

deemed Appellant’s Petition untimely and denied it.



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      After Appellant filed his present appeal, our Supreme Court overruled

J.M.Y. I in J.M.Y. II. The J.M.Y. II Court first observed that there was no

statutory basis for J.M.Y.’s petition to expunge his Section 303 commitment.

See id. at 415-17 (concluding that neither 18 Pa.C.S. § 6111.1(g)(2), nor 18

Pa.C.S. § 6105(f)(1) of the UFA provide an avenue for challenging the validity

of a Section 303 commitment). The Court then explained that,

      [J.M.Y.] seems to be arguing that, because he is raising due
      process challenges to his Section 303 commitment procedure,
      such challenges may be brought at any time, and in the manner
      he chose. We reject such a notion. As the learned Judge
      Benjamin Cardozo aptly noted: “Jurisdiction exists that rights may
      be maintained. Rights are not maintained that jurisdiction may
      exist.” Berkovitz v. Arbib & Houlberg, 230 N.Y. 261, 130 N.E.
      288, 291 (1921). Merely because [J.M.Y.] presented claims of a
      constitutional dimension did not confer jurisdiction on a court to
      adjudicate them. Even constitutional challenges must be brought
      in a manner specified by law, and in a timely fashion, or else they
      are waived. See Commonwealth v. Knox, 647 Pa. 597, 190
      A.3d 1146, 1152 (2018) (observing that “[c]onstitutional claims
      are subject to waiver regardless of their importance”).

      Moreover, Section 303(g) of the MHPA furnished a means for
      [J.M.Y.] to raise due process challenges to the commitment
      procedure which led to the entry of the Certification. This section
      provides:

         (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



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        followed, it shall deny the petition. Otherwise, the person
        shall be discharged.

     50 P.S. § 7303(g) (emphasis added). Thus, [J.M.Y.] had the right
     under this section to petition the court of common pleas for review
     of his Certification by the mental health review officer, because
     the Certification directed him to receive 20 days of outpatient
     treatment, and, thus, [J.M.Y.] was “subject to treatment” under
     Section 303(g).

            Although it is true, as [J.M.Y.] argues, that Section 303(g)
     does not specify a time within which such a petition for review
     must be brought, we reject his contention that the time period for
     filing a petition under this section is essentially boundless. As our
     Court recognized in In re K.L.S., “[i]n proceedings under the
     MHPA, the case is ... heard by the [mental health review officer],
     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
     together with an explanation of the adequacy and appropriateness
     of such treatment, based upon the information received at the
     hearing.’” 934 A.2d at 1247-48 (quoting 50 P.S. § 7303(d))
     (second alteration original). We further held therein that the
     certification of the mental health review officer, as a quasi-judicial
     officer, constitutes a “final adjudication or determination” of a
     local agency or a Commonwealth agency. Id. at 1248.
     Consequently, inasmuch as a mental health review officer is
     considered a local agency or Commonwealth agency, the mental
     health review officer must be classified as a government
     unit, see 42 Pa.C.S. § 102 (defining government unit, inter alia,
     as “any government agency”), and, under Section 5571(b) of the
     Judicial Code, “an appeal from a tribunal or other government unit
     to a court ... must be commenced within 30 days after the entry
     of the order from which the appeal is taken,” 42 Pa.C.S. §
     5571(b). [J.M.Y.], therefore, had 30 days from the date of the
     mental health review officer’s Certification to petition the court of
     common pleas for review of any due process or other challenges
     to the Certification. As he did not do so, but instead filed the
     instant petition over two years later, neither the court of common
     pleas nor the Superior Court had jurisdiction to consider the merits
     of these claims.22 Accordingly, we must reverse the order of the
     Superior Court, which itself reversed the common pleas court’s
     order dismissing [J.M.Y.’s] petition.



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         22 The Superior Court’s decision in In re Ryan, relied on by
         the Superior Court majority [in J.M.Y. I], did not purport to
         alter these procedural limitations for bringing due process
         challenges to proceedings under the MHPA. In that case,
         the petitioner, unlike [J.M.Y.], timely filed his petition for
         review in accordance with the requirements of Section
         303(g) of the MHPA. Because the petitioner properly raised
         and preserved issues of whether the procedures governing
         Section 303 commitments were followed in his case, there
         was no question that the Superior Court had jurisdiction to
         adjudicate his appeal, and to render its ultimate decision
         that the failure to follow the explicit requirements of Section
         303 governing the conduct of involuntary commitment
         proceedings constituted a due process violation requiring
         the vacation of a Section 303(b) certification and
         expungement of related records.

J.M.Y. II, 218 A.3d at 417-18 (some footnotes omitted; emphasis in original).

      J.M.Y. II clarifies that under In re K.L.S. and 42 Pa.C.S. § 5571(b),

the trial court lacked jurisdiction to rule on Appellant’s Petition to expunge his

Section 303 commitment, as the Petition was filed more than 30 days after

the certification order that involuntarily committed Appellant. Moreover, the

due process concerns raised by Appellant cannot overcome the untimeliness

of his Petition. However, as the J.M.Y. II Court pointed out, Appellant has

the “ability to petition for review of the Certification nunc pro tunc, based on

these alleged procedural irregularities.” Id. at 419 (citing Union Elec. Corp.

v. Bd. of Prop. Assessment, Appeals & Review of Allegheny Cty., 746

A.2d 581, 584 (Pa. 2000) (“[I]n civil cases, an appeal nunc pro tunc is granted

only where there was fraud or a breakdown in the court's operations through




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a default of its officers.”) (internal quotation marks omitted)).2 Accordingly,

we affirm the court’s order, without prejudice to Appellant’s right to seek nunc

pro tunc relief below.3

       Order affirmed.




____________________________________________


2 We note that in Appellant’s reply brief, he cursorily avers that we should not
apply J.M.Y. II retroactively to his case, as it “announced a new principle
never before addressed in expungements of involuntary Mental Health Civil
Commitment cases….” Appellant’s Reply Brief at 6. We disagree. The Court’s
decision in J.M.Y. II did not announce a new principle, and the Court did not
declare that its decision would apply prospectively only. Rather, J.M.Y. II
merely corrected the J.M.Y. I panel’s misinterpretation of In re Ryan, and
clarified that under K.L.S. and 42 Pa.C.S. § 5571, a certification of
involuntarily commitment must be appealed to the court of common pleas
within 30 days. Moreover, “[w]hile retroactive application of a new rule is a
matter of judicial discretion usually exercised on a case-by-case basis, the
general rule is that the decision announcing a new rule of law is applied
retroactively so that a party whose case is pending on direct appeal is entitled
to the benefit of the changes in the law.” Commonwealth v. Hays, 218 A.3d
1260, 1264-65 (Pa. 2019) (emphasis added). Appellant has not convinced us
to deviate from the general rule that we apply J.M.Y. II to his case.
3  Given this disposition, we are without jurisdiction to review Appellant’s
second issue challenging the trial court’s failure to find that his due process
rights under Section 303 were violated. Moreover, because Appellant’s
Section 303 commitment has not been vacated or expunged, his third and
fourth issues challenging his Section 302 commitment are moot. See In re
Jacobs, 15 A.3d at 511 (concluding that the appellant’s Section 302 issues
are moot because, “even if [the appellant was] entitled to expunction under
[Section] []302, expunction cannot go forward because [the] appellant was
also involuntarily committed under [Section] []303”).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2020




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