J-S75014-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: L.K.P.                                    IN THE SUPERIOR COURT
                                                        OF PENNSYLVANIA


    APPEAL OF: PENNSYLVANIA STATE
    POLICE

                             Appellant                  No. 982 WDA 2019


                    Appeal from the Order Entered June 7, 2019
                In the Court of Common Pleas of Allegheny County
                        Orphans' Court at No: CC 51-2018


BEFORE:       STABILE, KUNSELMAN, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                               FILED APRIL 17, 2020

         Appellant, Pennsylvania State Police (“PSP”), appeals from the June 7,

2019 order entered in the Court of Common Pleas of Allegheny County,

granting L.K.P.’s petition for expunction of his involuntary commitments. PSP

contends the trial court erred in granting the petition in light of L.K.P.’s failure

to seek timely review of his commitment under Section 303 of the Mental

Health Procedures Act (“MHPA”), 50 P.S. § 7303. We agree. Therefore, we

vacate the June 7, 2019 order and remand.

         The record reveals that L.K.P. became intoxicated in the lower level of

his home on January 6, 2018. As the trial court explained:

         [L.K.P.] became extremely intoxicated, and, at some point, while
         drunkenly stumbling and attempting to plug his [lawfully owned]
         firearm into his phone charger, told his wife to go upstairs. When
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*   Retired Senior Judge assigned to the Superior Court.
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      [his] wife did so, [L.K.P.] turned off the electricity in the home.
      [L.K.P’s] wife became sufficiently concerned that she called the
      police. However, the wife’s concern was not that [L.K.P.] would
      threaten or harm her. Rather, [she] summoned the police
      because “I just didn’t want any accident to happen.” When the
      police arrived, they elected to transport [L.K.P.] to a local hospital.
      The record provides no account of any altercation with the police.

      At the hospital, [L.K.P.’s] wife signed an application for
      involuntary emergency examination and treatment of [L.K.P.]
      pursuant to 50 P.S. § 7302. A physician’s examination pursuant
      to that application was postponed due to [L.K.P.’s] acute
      intoxication. The results of the eventual examination noted that
      “The patient admits to feeling depressed. Admits to drinking
      alcohol excessively.” [L.K.P.] denied, however, any suicidal
      ideation.

      A recommendation for extended involuntary emergency treatment
      pursuant to 50 P.S. § 7303 was made by a physician who noted
      that [L.K.P.] had been violent and aggressive while in the
      emergency room. The matter thereafter proceeded to a hearing
      at which [L.K.P.] was represented by counsel from the Public
      Defender’s Office. Although the examining psychiatrist testified
      that he had made no finding of a severe mental illness, [L.K.P.]
      was nonetheless certified [on January 8, 2018] for extended
      involuntary treatment on an outpatient basis.

Trial Court Opinion, 8/19/19, at 2-3 (footnote with reference to notes of

testimony omitted).

      Nearly four months later, on May 4, 2018, L.K.P. filed a petition to

vacate and expunge his commitments and restore his rights. L.K.P. asserted

that his initial admission to the hospital was based on excessive intoxication;

that undisputed testimony from the January 8, 2018 hearing confirmed that

he did not suffer from a severe mental disability; and that his counsel failed

to seek dismissal of the commitment or inform him that the commitment

would have an adverse effect on L.K.P.’s civil and constitutional rights.

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Petition to Vacate and Expunge, 5/4/18, at ¶ 14. L.K.P. asked the court to

expunge both his involuntary commitment pursuant to Section 302 and his

involuntary commitment to outpatient treatment pursuant to Section 303. Id.

at ¶¶ 17-18.

      By order entered April 17, 2019, the trial court ordered expunction of

L.K.P.’s Section 303 commitment. L.K.P. filed a motion for reconsideration,

contending his Section 302 commitment should also be expunged. By order

entered June 7, 2019, the trial court directed that documents related to both

commitments be expunged. This timely appeal followed. Both the trial court

and PSP complied with Pa.R.A.P. 1925.

      PSP asks us to consider one issue in this appeal:

      I. Did the trial court err when it reviewed L.K.P.’s involuntary
      commitments under Sections 302 and 303 of the Mental Health
      Procedures Act, 50 P.S. §§ 7302, 7303, when he did not seek
      timely review of his [Section] 303 commitment?

PSP Brief at 4.

      PSP contends the trial court lacked jurisdiction over L.K.P.’s untimely

challenge to his Section 303 commitment. PSP further argues that the trial

court erred in expunging the Section 302 commitment in light of the existence

of the Section 303 commitment.     As such, PSP raises questions of law for

which our standard of review is de novo and our scope of review is plenary.

In re J.M.Y., 218 A.3d 404, 415 (Pa. 2019).




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      In J.M.Y., an individual who was committed under Section 302, and

subsequently under Section 303, filed a petition to expunge his commitments

more than two years after he was committed. The Court explained:

      The crux of PSP’s challenge is that the trial court and, thus, the
      Superior Court lacked jurisdiction to consider [J.M.Y.’s] request to
      vacate his Section 303 commitment and expunge his mental
      health records. It is axiomatic that subject matter jurisdiction is
      the indispensable foundation of a court’s power to adjudicate the
      issues in a particular case; thus, our Court will not consider the
      merits of a judgment of a lower court if that court lacked
      jurisdiction to render the judgment. In re Leopardi, 516 Pa. 115,
      532 A.2d 311, 315 (1987) (“The power of the appellate court to
      modify a judgment is limited by the jurisdictional powers of the
      tribunal below. It can give no judgment on appeal which the lower
      court was incompetent to render.”); In re Petition of Accione,
      425 Pa. 23, 227 A.2d 816[, 820] (1967) (where lower court did
      not address the question of its jurisdiction to consider a petition
      and proceeded to decide its merits, our Court has the duty to
      determine whether that court had jurisdiction before deciding
      issues presented on appeal). Accordingly, the question of the
      subject matter jurisdiction of a court is nonwaivable, and, indeed,
      our Court is empowered to raise the issue sua sponte.
      Commonwealth v. Scarborough, 619 Pa. 353, 64 A.3d 602,
      608 n.10 (2013).

Id.

      As PSP recognizes, the Supreme Court in J.M.Y. reviewed the

appropriateness of vacating a Section 303 commitment more than 30 days

after its entry and rejected the premise that an individual may seek review of

a Section 303 commitment—even on a constitutional basis—beyond the time




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restraints imposed by Section 303(g).1 The Court determined that J.M.Y was

“subject to treatment” under Section 303(g) and, therefore, had the right to

petition the court of common pleas for review. With regard for the timeframe

for doing so, the Court stated:

        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.’” [In re K.L.S., 934 A.2d 1244, 1247-48 (Pa. 2007)]
        (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
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1   This subsection provides:

        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(g)--Petition to Common Pleas Court (emphasis added).


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      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). Appellee, 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.

Id. at 418 (footnote omitted).

      L.K.P. admits he did not petition the court of common pleas for review

under Section 303(g). Reply to Answer and New Matter. 1/24/19, at ¶ 24.

Just as in J.M.Y., the failure to petition to court for review deprived the court

of common pleas of jurisdiction to consider the merits of his claims.

Therefore, we are constrained to vacate the June 7, 2019 order.

      In J.M.Y., the Court acknowledged the seriousness of J.M.Y.’s

allegations that the procedural requirements of Section 303 were not

followed in his case. Id. at 418. “Further, nothing in this Opinion should be

construed as constraining Appellee’s present ability to petition for review of

the Certification nunc pro tunc, based on these alleged procedural

irregularities.” Id. (citing Union Elec. Corp. v. Bd. of Prop. Assessment,

Appeals & Review of Allegheny Cty., 746 A.2d 581, 582 (Pa. 2000) (“[I]n




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civil cases, an appeal nunc pro tunc is granted only where there was fraud

or a breakdown in the court’s operations through a default of its officers.”)).2

        We similarly note that our ruling does not operate to prevent L.K.P.

from seeking to petition the trial court nunc pro tunc. While L.K.P. proposes

that we deem the trial court’s interpretation of his petition as an appeal nunc

pro tunc, we decline to do so. This is not a matter of simply “styling” a

petition as nunc pro tunc, as L.K.P. suggests.        As the Supreme Court

recognized in its reference to Union Elec. Corp., an appeal nunc pro tunc is

to be granted only in situations involving fraud or a breakdown in the court’s

operations. J.M.Y., 218 A.3d at 418. While L.K.P. asserts that the trial court

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2   As the Court explained in Union Elec. Corp.,

        [a]llowing an appeal nunc pro tunc is a recognized exception to
        the general rule prohibiting the extension of an appeal deadline.
        This Court has emphasized that the “principle emerges that an
        appeal nunc pro tunc is intended as a remedy to vindicate the
        right to an appeal where that right has been lost due to certain
        extraordinary circumstances.” Commonwealth v. Stock, 545
        Pa. 13, 19, 679 A.2d 760, 764 (1996). Generally, in civil cases,
        an appeal nunc pro tunc is granted only where there was “fraud
        or a breakdown in the court’s operations through a default of its
        officers.” Bass [v. Commonwealth of Pennsylvania, 401 A.2d
        1133, 1135 (Pa. 1979)]; see also [Commonwealth v. Stock,
        679 A.2d 760, 763 (Pa. 1996)]; Hanoverian, Inc. v. Lehigh
        County Bd. of Assessment, 701 A.2d 288, 289 (Pa. Commw.
        Ct. 1997) (“[A] court may not extend that time period or allow an
        appeal nunc pro tunc absent a showing that extraordinary
        circumstances involving fraud, or its equivalent, duress, or
        coercion caused the delay in filing an appeal.”).

Id., 746 A.2d 584.



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“clearly viewed the matter of [L.K.P’s] Petition below as essentially an Appeal

Nunc Pro Tunc and addressed it as such,” Appellee’s Brief at 5, the trial court

did not undertake any analysis of whether any fraud or breakdown in the

court’s operations would warrant consideration of the petition nunc pro tunc.3

       We similarly decline J.K.P’s invitation to find that J.M.Y. announces a

“new procedural doctrine” warranting prospective application only.            In

J.M.Y., the Court explained that while Section 303(g) did not specify a period

of time during which a petition for review must be brought, a 30-day period

for requesting review is consistent with the Court’s decision in In re K.L.S.,

934 A.2d 1244 (Pa. 2007) read in conjunction with 42 Pa.C.S.A. § 5571.

J.M.Y., 214 A.3d at 814.

       Therefore, we vacate the June 7, 2019 order directing expunction of

documents relating to L.K.P.’s commitments under both Section 302 and

303. Case remanded. Jurisdiction relinquished.

       Judge Kunselman joined the memorandum.

       Judge Pellegrini concurs in the result.




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3 We remind counsel for J.K.P. that the text in briefs filed with this Court is
to be double-spaced. See R.A.P. 124(a)(3).

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/17/2020




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