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                             2018 PA Super 30

 IN RE: PETITION OF J.M.Y.             :   IN THE SUPERIOR COURT OF
 ALLEGHENY COUNTY DEPARTMENT           :        PENNSYLVANIA
 OF BEHAVIORAL HEALTH AND THE          :
 PENNSYLVANIA STATE POLICE             :
                                       :
                                       :
 APPEAL OF: J.M.Y.                     :   No. 1323 WDA 2015


                   Appeal from the Order March 10, 2015
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                         No(s): CC 1419 of 2014


BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
        LAZARUS, J., OLSON, J., OTT, J., STABILE, J., and DUBOW, J.

OPINION BY SHOGAN, J.:                        FILED FEBRUARY 14, 2018

     Appellant, J.M.Y., appeals from the order denying his petition to

expunge his mental health records and restore his firearms rights.    Upon

careful review, we vacate the order and remand for further proceedings.

     We summarize the procedural history of this case as follows.         On

September 21, 2012, Appellant was a student at the University of Pittsburgh

when he attended a fraternity party and became intoxicated. At the time,

Appellant was taking prescribed medications for depression and anxiety. On

that date, Appellant was apprehended by University of Pittsburgh Police when

it was reported that he was attempting to harm himself.     The police took

Appellant to Western Psychiatric Hospital, where he was involuntarily

committed under section 302 of the Mental Health Procedures Act (“MHPA”)

50 P.S. §§ 7101-7503.        Subsequently, Appellant was discharged on
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September 25, 2012.1          Appellant continued his course of studies in law

enforcement at the University of Pittsburgh.

       On November 24, 2014, Appellant filed a petition to vacate and expunge

his involuntary commitment pursuant to 18 Pa.C.S. § 6105(f)(1) 2 and 18

Pa.C.S. § 6111.1(g)(2).3        A hearing was held on January 8, 2015, and on

March 10, 2015, the trial court signed an order denying Appellant’s petition

for expungement.4 Appellant filed exceptions that were denied by operation

of law, resulting in this timely appeal on August 27, 2015.5 The trial court did

not order Appellant to file a concise statement pursuant to Pa.R.A.P. 1925(b).


____________________________________________


1 We note that pursuant to 18 Pa.C.S. § 6105(c)(4), a person who has been
involuntarily committed to a mental institution for inpatient care and
treatment under sections 302, 303, or 304 of the MHPA is prohibited from
possessing, using, controlling, selling, transferring, or manufacturing a
firearm. In addition, Appellant is prohibited from possessing a firearm under
18 U.S.C. § 922(g)(4).

2 Under 18 Pa.C.S. § 6105(f)(1), the court of common pleas, upon application
of a person subject to prohibition under section 6105(c)(4), “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.”

3 Section 6111.1(g)(2) provides a means for expungement of records of
section 302 involuntary commitment where the evidence was insufficient to
justify such commitment.

4The order dated March 10, 2015, was not entered on the docket until August
26, 2015. Record Docket Entry #7.

5 On July 28, 2015, the trial court entered an order that restored Appellant’s
right to possess a firearm under state law.




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On October 7, 2015, the trial court issued an opinion in support of its March

10, 2015 order.6

       Previously, a divided three-judge panel of this Court affirmed the

decision of the trial court. Appellant then filed an application for reargument

en banc, which was granted on January 26, 2017, and the former

memorandum decision of the three-judge panel was withdrawn.

       Appellant presents the following issues for our review:

             I. Did the trial court err and/or abuse its discretion by finding
       that there was a valid commitment of the Appellant under Section
       303 of the Mental Health Procedures Act, 50 P.S. §7303 (hereafter
       the [“MHPA”]) and by denying the Appellant’s petition to vacate
       and expunge involuntary civil commitment?

             II. Did the trial court err and/or abuse its discretion by
       finding that there was sufficient evidence to support the
       Appellant’s commitment under Section 302 of the Act and by
       denying the Appellant’s petition to vacate and expunge
       involuntary civil commitment?



____________________________________________


6 In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court concluded that
Appellant was validly committed under section 303 and, thus, was barred from
possessing a firearm under 18 Pa.C.S. § 6105(a)(1) and (c)(4). Trial Court
Opinion, 10/7/15, at 1. The trial court stated, however, that it limited its
review to the sufficiency of the evidence for the section 303 commitment. Id.
at 2. In addition, the trial court noted the following:

       On July 28, 2015, an Order was filed in the matter restoring
       [A]ppellant’s rights to possess a firearm under 18 Pa.C.S.A. §
       6105(f)(1). Although this allows Appellant to again possess a
       firearm under Pennsylvania law, he is still barred from possessing
       a firearm under the federal Gun Control Act. 18 U.S.C.A. §
       922(g)(4).

Trial Court Opinion, 10/7/15, at 1 n.1.

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Appellant’s Brief at 4. “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).

       Appellant first argues that the trial court erred in concluding that there

was a valid commitment under section 303 of the MHPA. Appellant’s Brief at

12-19.      Essentially, Appellant contends that his due process rights were

violated, thereby invalidating the section 303 commitment.           Id. at 18-19.

Appellant claims there was no valid section 303 commitment at all. He states,

“the 303 certification was merely a device for accomplishing the immediate

release of [Appellant] from the 302 commitment while assuaging the liability

concerns of UPMC and WPIC.” Appellant’s Brief at 19. 7 We are constrained

to agree.

       Initially, we observe that prevailing case law has interpreted 18 Pa.C.S.

§ 6111.1(g) as providing no opportunity to obtain expungement of a mental

health record pursuant to a commitment under section 303 and only allows

for a trial court to review commitments under section 302. In re Jacobs, 15

A.3d 509, 511 (Pa. Super. 2011).                 In addition, an appellant seeking



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7 Appellant further observes that documentation reflects he did not attend a
section 303 certification proceeding, and that “[h]e was never advised of any
purported requirement that he engage in outpatient treatment, and there was
never any follow-up by anyone regarding any such outpatient treatment.”
Appellant’s Brief at 19. Although not raised as an issue, it is peculiar, if an
oxymoron, that “outpatient treatment” can constitute “extended involuntary
emergency treatment” under section 303.

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expungement and restoration of firearms rights cannot “bootstrap” review of

a section 303 commitment to a petition seeking review of a section 302

commitment under section 6111.1(g), because the section 303 commitment

is “an entirely separate judicial proceeding, complete with its own avenue of

appeal.” Id.

      The   law   in   Pennsylvania   is   “well-settled   that   involuntary    civil

commitment of mentally ill persons constitutes deprivation of liberty and may

be accomplished only in accordance with due process protections.”               In re

Hutchinson, 454 A.2d 1008, 1010 (Pa. 1982); In re Chiumento, 688 A.2d

217, 220 (Pa. Super. 1997). “The very nature of civil commitment . . . entails

an extraordinary deprivation of liberty. . . .     A statute sanctioning such a

drastic curtailment of the rights of citizens must be narrowly, even grudgingly

construed, in order to avoid deprivations of liberty without due process of

law.” In re Woodside, 699 A.2d 1293, 1298 (Pa. Super. 1997) (quoting In

Re S.C., 421 A.2d 853, 857 (Pa. Super. 1980)).

      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. Collateral consequences, too, may result
      from the stigma of having been adjudged mentally ill. . . .
      Numerous restrictions and routines are imposed in a mental
      hospital . . . [and] are designed to aid and protect the mentally ill
      persons, even those already in custody for other reasons, who do
      not need such treatment should not be subjected to it. Indeed, a
      person who is mistakenly committed to a mental hospital might
      suffer serious psychological damage. For these reasons, strict
      adherence to the statutory requirements is to be
      compelled.

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In re Ryan, 784 A.2d 803, 807 (Pa. Super. 2001) (quoting Commonwealth

v. Hubert, 430 A.2d 1160, 1162 (Pa. 1981)) (emphasis added).           As we

ultimately held in In re Ryan, when an appellant’s due process rights under

the MHPA are violated, “we may vacate the certification for involuntary

treatment pursuant to section []303, and direct that all records pertaining to

this matter be expunged.” In re Ryan, 784 A.2d at 808. See also In re

A.J.N., 144 A.3d 130, 139 (Pa. Super. 2016) (stating that “case law uniformly

mandates expungement and destruction of records when the procedural, due

process requirements of the MPHA are violated during a commitment

proceeding”).8 Thus, only a section 303 commitment that provides adequate

due process may preclude an expungement of a section 302 commitment.

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8 We observe that in In re A.J.N., 144 A.3d 130 (Pa. Super. 2016), this Court
addressed a trial court’s refusal to expunge two section 302 commitments. In
that case, the appellant, who was a young man in his early twenties
experiencing physical distress due to withdrawal from drug addiction, was
involuntarily committed under section 302 in May of 2004, and then again in
November of 2004. Id. at 132. Once free of his addiction, the appellant
enlisted in the United States Army and excelled in his career. Id. Over nine
years later, the appellant sought relief from the prohibition against carrying
firearms due to his section 302 commitments, and he also sought the
expungement and destruction of all records from the two involuntary
commitments. Id. at 132-133. Although the trial court restored the
appellant’s right to possess a firearm, the trial court refused to expunge the
two section 302 commitments. Id. at 133-134. On appeal, this Court
concluded that the strictures of section 302 were ignored, when “[w]ithout
personally viewing any behavior on [the a]ppellant’s part that would support
the belief that he was a danger to himself or others, police assumed control
over [the a]ppellant’s person and forcibly conveyed him to the mental health
facility without a warrant.” Id. at 137. Hence, we held that, under the



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       With these overriding concepts in mind, we observe the following.

Section 302 of the MHPA provides for the involuntary emergency examination

and treatment of a person not to exceed 120 hours if, upon certification of a

physician for examination, or upon a warrant issued by a county administrator

authorizing an examination, an examination conducted by a physician within

two hours of arrival shows that the person is severely mentally disabled and

in need of emergency treatment. 50 P.S. § 7302(a), (b). 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 twenty

days if, after an informal conference where the patient is represented by

counsel, a judge or mental health review officer finds that the patient is

severely mentally disabled and in need of continued involuntary treatment,

and so certifies. 50 P.S. § 7303(a)-(c). Indeed, the person is entitled to the

appointment of counsel.         50 P.S. § 7303(b).   In addition, section 303(c)

requires the following:

       (1) 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
____________________________________________


applicable legal authority, the violation of the strictures of section 302
mandated that the records of the two civil commitments at issue be expunged
and that all records of those commitments be destroyed. Id. at 139.

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     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) (emphasis added).

     Also of importance are the following provisions of the statute:

     (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.

     (e) FILING AND SERVICE. — The certification shall be filed
     with the director of the facility and a copy served on the


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      person, such other parties as the person requested to be notified
      pursuant to section 302(c), and on counsel.

      (f) EFFECT OF CERTIFICATION. — Upon the filing and
      service of a certification for extended involuntary
      emergency treatment, the person may be given treatment in
      an approved facility for a period not to exceed 20 days.

      (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.

50 P.S. § 7303(d), (e), (f), (g) (emphases added).

      Upon review of the certified record, we conclude that the certification

was not proper and, therefore, the section 303 commitment was not valid. At

the expungement hearing, Appellant testified that, although he spoke with a

public defender prior to his release from the hospital, he was unaware of any

303 commitment hearing held on September 25, 2012. N.T., 1/8/15, at 32-

33.   Appellant testified that he merely “was told that there could be a

hearing.” Id. at 33 (emphasis added).

      In addition, our review of the certified record reflects that, by

happenstance, the public defender who signed Appellant’s section 303

certification was present at the courthouse at the time of Appellant’s

expungement hearing and was asked to testify. N.T., 1/8/15, at 15-20. When

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called into the courtroom, the public defender stated that he did not

“specifically recall [Appellant].”   Id. at 16.   However, upon reviewing the

section 303 commitment form at the time he provided his testimony, the

public defender acknowledged that Appellant did not attend the 303

hearing. Id.

      Also, Sergeant Andrew Redman of the University of Pittsburgh Police

Department testified at Appellant’s expungement hearing. Sergeant Redman

explained that university police officers who file section 302 petitions typically

receive notices of section 303 commitment hearings.         N.T., 1/8/15, at 54.

However, Sergeant Redman stated that he did not appear at a section 303

commitment hearing for Appellant on September 25, 2012, and could not

recall whether he was ever informed that such a hearing for Appellant was to

be held. N.T., 1/8/15, at 54-55.

      In addition, the     certified record reflects that the       section 303

commitment certification document specifies that Appellant did not attend the

hearing. The section 303 commitment certification provides as follows:

      AND NOW, this 25TH day of September, 2012, a hearing having
      been held on a Petition of Extended involuntary Treatment of
      [Appellant], Respondent, under Section 303 of the Mental Health
      Procedures Act of 1976, as amended by Act 324 of 1978, the
      Respondent having been present and represented by the Office of
      Public Defender, upon consideration of the testimony of F.
      DePietro, MD., a physician on the staff of WPIC, your Mental
      Health Review Officer finds that the Respondent is severely
      mentally disabled and presents a clear and present danger to
      himself/herself or others; and certifies that he/she shall receive:
                             PLEASE CHECK ONE


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                           □ In-Patient Treatment
                           □ Partial Hospitalization
                           □ Out-Patient Treatment [this box checked]
                           □ Combination of such treatment as the
                           director of the facility shall from time to
                           time determine.

      which is the least restrictive appropriate treatment for the
      Respondent at WPIC / Blair Co. MH Hospital, pursuant to the
      provisions of the Mental Health Procedures Act, for a period not to
      exceed Twenty (20) days from the date of this Certification.

                                    _______Robert Zunich__________
                                    MENTAL HEALTH REVIEW OFFICER

      Patient Attended YES ___ NO_X_

      Contested ______

      Uncontested: Voluntary _____

                  Stipulation __X_ _____E.S.__________
                              Patient’s Counsel’s signature required

      [Patient is A Resident of BLAIR County]

Docket Entry 1, Exhibit 7 (emphasis added).

      Appellant did not sign the section 303 commitment certification.

Moreover, the section 303 commitment certification does not meet all of the

requirements of section 303(d). Of particular importance is the fact that there

is no evidence Appellant was ever notified of his right to appeal to the court

of common pleas under section 303(g) as required under section 303(d)(6).

Likewise, there is no evidence that Appellant was provided an explanation of

his continuing right to be represented by counsel as required under section

303(d)(6). In addition, there is no evidence that Appellant was served a copy


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of the section 303 commitment certification as mandated under section

303(e). These failures amount to a deprivation of Appellant’s due process

rights.

      Moreover, a study of Appellant’s discharge summary from Western

Psychiatric Hospital is problematic. Precisely, the following language from the

hospital’s discharge document results in the conclusion that Appellant was not

properly committed under section 303:

      HOSPITAL COURSE
      . . . He won his 303 hearing on 9/25/12 after police who
      petitioned his 302 did not show up to hearing.

                                    * * *

      DISCHARGE PLANNING
      [Appellant] discharged to home with his parents after winning
      his 303 hearing on 9/25/12 after police did not show up for his
      303 hearing.

Docket Entry 1, Exhibit 8 (emphases added).               Therefore, it is our

determination that the trial court erred in finding that the section 303

certification was valid.

      Appellant next argues that the trial court erred in determining that there

was sufficient evidence to support his initial commitment under section 302 of

the MHPA. Appellant’s Brief at 20-22. Appellant contends that there was no

evidence he suffered from mental illness or that he was severely mentally

disabled as a result of mental illness.      However, at the conclusion of his

argument on this issue, Appellant states the following:




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      it is noteworthy that the trial court never addressed the sufficiency
      of the evidence to support the [s]ection 302 commitment. Rather,
      the lower court expressly stated that it was limiting its inquiry to
      the sufficiency of the evidence for the [s]ection 303 commitment,
      but then proceeded to address only the [s]ection 303 procedural
      requirements. Thus, the [trial] court failed to make any findings
      whatsoever as to the sufficiency of the evidence to support either
      the [s]ection 302 or [s]ection 303 commitments.

Appellant’s Brief at 21-22.

      Our review of the record reflects that, in his Petition to Vacate and

Expunge Involuntary Civil Commitment filed on November 24, 2014, Appellant

specifically challenged his section 302 commitment that occurred on

September 21, 2012. In so doing, Appellant concluded his petition with the

following request:

      [Appellant] respectfully requests [the trial court] to Enter an Order
      vacating his mental health commitment of September 21, 2012,
      directing Allegheny County Mental Health/Mental Retardation,
      WPIC, Western Pennsylvania Hospital, Forbes Regional Campus,
      Pennsylvania State Police, as well as all other appropriate law
      enforcement agencies to expunge all references in their records,
      files and databanks to said commitment and restoring all of the
      civil rights and privileges lost by [Appellant] as a result of his
      commitment.

Petition to Vacate and Expunge Involuntary Civil Commitment, 11/24/14, at

9 (unnumbered).

      However, as indicated by Appellant in his appellate brief, our review of

the certified record reflects that the trial court failed to address whether there

was sufficient evidence to support Appellant’s section 302 commitment.

Rather than address the underlying section 302 commitment, the trial court

made a determination regarding the validity of Appellant’s section 303

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commitment. Trial Court Opinion, 10/7/15, at 3. Once the trial court deemed

Appellant’s section 303 commitment to be valid, it ceased its inquiry and never

addressed Appellant’s section 302 commitment.             This poses a problem

because this Court is not a fact-finding court. See Commonwealth v. Grant,

813 A.2d 726, 734 (Pa. 2002) (noting that appellate courts do not act as fact

finders); Commonwealth v. Grundza, 819 A.2d 66, 68 (Pa. Super. 2003)

(appellate court does not in first instance make findings of fact) (citation and

quotation marks omitted).      Because the trial court never addressed the

validity of Appellant’s section 302 commitment, we are compelled to remand

this matter to the trial court for further proceedings.

      In summary, because the certified record reflects that the dictates of

the MHPA mandating a valid 303 certification were not met, we conclude that

Appellant’s due process rights were violated and fundamental fairness requires

that his section 303 certification records be expunged. Accordingly, we vacate

the certification for involuntary treatment pursuant to section 303, and we

direct that those records be expunged. In re Ryan, 784 A.2d at 807. Once

that is accomplished, the trial court is to hold a hearing addressing the

expungement of Appellant’s section 302 commitment.

      Order vacated. Case remanded for further proceedings consistent with

this Opinion. Jurisdiction relinquished.

      P.J. Gantman, P.J.E. Bender, Judge Bowes, Judge Lazarus, Judge Ott,

Judge Stabile, and Judge Dubow join this Opinion.


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     Judge Olson files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/14/2018




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