J-S54018-14


                                  2014 PA Super 228

IN RE: D.M.W.                                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




                                                        No. 270 MDA 2014


                     Appeal from the Order January 8, 2014
                 In the Court of Common Pleas of Berks County
                         Civil Division at No(s): 3-14 MH


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

OPINION BY MUNDY, J.:                                 FILED OCTOBER 10, 2014

        Appellant, D.M.W., appeals from the January 8, 2014 order continuing

his involuntary civil commitment for a period of one year.        After careful

review, we affirm.

        We summarize the relevant factual and procedural history of this case

as follows.    On February 17, 2009, the Commonwealth filed a petition in

juvenile court, alleging Appellant was delinquent for committing acts that if

committed by an adult would constitute the crimes of involuntary deviate

sexual intercourse, aggravated indecent assault, indecent assault, and

indecent exposure.1         The juvenile court conducted a hearing at which

Appellant admitted committing the delinquent acts.          The juvenile court

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1
    18 Pa.C.S.A. §§ 3123, 3125, 3126 and 3127, respectively.
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adjudicated Appellant delinquent and in need of treatment.                 As a result,

Appellant was committed to a juvenile treatment facility.

       At some point, the Juvenile Probation Office requested that the

juvenile court conduct a review of Appellant’s file.               The juvenile court

directed Appellant’s file be forwarded to the Sexual Offenders Assessment

Board (SOAB).       The SOAB conducted an assessment, the results of which

were sent to the juvenile court on May 13, 2012.                 On June 8, 2012, the

juvenile court found prima facie evidence that Appellant “was in need of

involuntary treatment[.]”        Trial Court Opinion, 4/8/14, at 2; see also 42

Pa.C.S.A. §§ 6358(f), 6403(b)(1).              On July 6, 2012, Berks County (the

County) filed a petition, with juvenile court, for involuntary treatment

pursuant to Section 6403(b). On January 8, 2013, the civil division 2 of the

trial court conducted a hearing, at the conclusion of which the trial court

concluded     Appellant    met    the    criteria    necessary   for   involuntary   civil

commitment under Section 6403(d).                   Appellant filed a timely notice of

appeal to this Court on February 6, 2013. On February 14, 2014, this Court

affirmed the commitment order.           In re D.M.W., 86 A.3d 235 (Pa. Super.

2014), appeal denied, --- A.3d ---, 169 MAL 2014 (Pa. 2014). Our Supreme

Court denied Appellant’s petition for allowance of appeal on August 14,

2014. Id.
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2
  The certified record does not reveal how the case was reassigned to the
civil division of the trial court.



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        Meanwhile, on January 5, 2014, the trial court received the SOAB’s

new assessment and evaluation of Appellant. On January 8, 2014, the trial

court conducted an annual review hearing pursuant to Section 6404(b)(2).

At the conclusion of said hearing, the trial court renewed the commitment

order for a period of one year. On February 6, 2014, Appellant filed a timely

notice of appeal.3

        On appeal, Appellant presents one issue for our review.

              A.     [Whether] the trial court erred by failing to
                     hold a timely review hearing pursuant to 42
                     Pa.C.S.A. § 6404(b)(2) or [whether] 42
                     Pa.C.S.A. § 6404(b)(1) [was] violated by the
                     failure of the [SOAB] and Torrence State
                     Hospital to provide the [trial] court the
                     necessary reports/assessments 60 days prior
                     to the review hearing?

Appellant’s Brief at 4. Appellant’s sole issue on appeal pertains to the time

constraints set forth in Section 6404(b) of Act 21 of 2003 (Act 21).       We

therefore begin by noting our well-settled standard of review regarding

issues of statutory interpretation.

        When “the question [is] one of statutory interpretation, our scope of

review is plenary and the standard of review is de novo.” Commonwealth

v. Kerstetter, 94 A.3d 991, 997 (Pa. 2014) (citation omitted). “Under the

Statutory Construction Act of 1972, … our paramount interpretative task is

to give effect to the intent of our General Assembly in enacting the particular
____________________________________________
3
    Appellant and the trial court have complied with Pa.R.A.P. 1925.



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legislation under review.” Commonwealth v. Spence, 91 A.3d 44, 46 (Pa.

2014) (citation omitted).   “We are mindful that the object of all statutory

interpretation is to ascertain and effectuate the intention of the General

Assembly … and the best indication of the legislature’s intent is the plain

language of the statute.”    Commonwealth v. Walter, 93 A.3d 442, 450

(Pa. 2014) (citation omitted). “When the words of a statute are clear and

unambiguous, we may not go beyond the plain meaning of the language of

the statute under the pretext of pursuing its spirit.” Id., citing 1 Pa.C.S.A.

§ 1921(b).   However, only “when the words of the statute are ambiguous

should a reviewing court seek to ascertain the intent of the General

Assembly through considerations of the various factors found in Section

1921(c) of the [Statutory Construction Act].”      Id. at 450-451, citing 1

Pa.C.S.A. § 1921(c).

      Instantly, Appellant argues that the mandates of Section 6404(b) were

not followed in this case. We begin with the statutory text. Section 6404 of

Act 21 provides, in relevant part, as follows.

             § 6404. Duration of inpatient commitment and
             review

             (a) Initial period of commitment.--The person
             shall be subject to a period of commitment for
             inpatient treatment for one year.

             (b) Annual review.--

                  (1) Sixty days prior to the expiration of
                  the one-year commitment period, the
                  director of the facility or a designee shall

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               submit an evaluation and the board shall
               submit an assessment of the person to the
               court.

               (2) The court shall schedule a review hearing
               which shall be conducted pursuant to section
               6403(c) (relating to court-ordered involuntary
               treatment) and which shall be held no later
               than 30 days after receipt of both the
               evaluation and the assessment under
               paragraph (1). Notice of the review hearing
               shall be provided to the person, the attorney
               who represented the person at the previous
               hearing held pursuant to this subsection or
               section 6403, the district attorney and the
               county solicitor or a designee. The person and
               the person’s attorney shall also be provided
               with written notice advising that the person
               has the right to counsel and that, if he cannot
               afford one, counsel shall be appointed for the
               person. If the court determines by clear and
               convincing evidence that the person continues
               to have serious difficulty controlling sexually
               violent behavior while committed for inpatient
               treatment due to a mental abnormality or
               personality disorder that makes the person
               likely to engage in an act of sexual violence,
               the court shall order an additional period of
               involuntary inpatient treatment of one year;
               otherwise,    the    court   shall  order   the
               department, in consultation with the board, to
               develop an outpatient treatment plan for the
               person. The order shall be in writing and shall
               be consistent with the protection of the public
               safety and appropriate control, care and
               treatment of the person.

                                   …

          (d) Prohibition on discharge.--The court shall not
          order discharge from involuntary treatment until the
          person has completed involuntary outpatient
          treatment pursuant to section 6404.2 (relating to
          duration of outpatient commitment and review).

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42 Pa.C.S.A. § 6404 (emphases added).          Section 6403(c) specifies the

manner in which the review hearing shall be conducted.

     In this case, Appellant argues that the dictates of Section 6404(b)(1)

were violated.   Appellant’s Brief at 11.   Specifically, Appellant argues that

the SOAB’s assessment and the facility’s evaluation were submitted to the

trial court only three days before the previous commitment order was to

expire. Id. Because the assessment and evaluation were not submitted on

time pursuant to the dictates of Section 6404(b)(1), Appellant argues that

he should be discharged and released from involuntary civil commitment.

Id. at 11, 15.   Alternatively, Appellant argues that if the assessment and

evaluation were timely, then the annual review hearing was untimely held

pursuant to Section 6404(b)(2). Id. at 13. Appellant further avers that an

untimely annual review hearing mandates his discharge and release from

commitment. Id. at 9, 13, 15.

     The County acknowledges that the “reports were not received until

January 5, 2014 … [and that] a hearing [was] held on January 8, 2014[.]”

County’s Brief at 5.   However, the County argues Appellant has failed to

show any prejudice arising from the untimely filing and is therefore not

entitled to be discharged from commitment.       Id. at 6.   We note that our

research has garnered no published cases on point pertaining to the

interplay between Sections 6404(b)(1), 6404(b)(2), and the remedy to be

afforded in the event the procedures are not followed.

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      At the January 8, 2014 hearing, Meghan Dade, the executive director

of the SOAB testified that the Board’s assessment was sent from the SOAB

on November 4, 2013, and delivered via United Parcel Service on November

6, 2013. N.T., 1/8/14, at 12. The report was addressed to the Honorable

Scott E. Lash of the juvenile division of the trial court. Id. The judge who

presided over the previous commitment hearing was the Honorable Arthur E.

Grim of the civil division of the trial court.

      Dr. Stacie Barnes, the clinical director of the Sexual Responsibility and

Treatment Program, conducted the required ten-month evaluation of

Appellant. Id. at 15. Dr. Barnes testified that she completed her evaluation

on October 25, 2013. Id. She further explained that the secretary in her

office routinely mails such evaluations to the court within one week of the

report’s completion, which in this case would be November 1, 2013. Id. at

16.    Dr. Barnes also testified that her secretary confirmed that this

procedure was followed in this case, by sending it to Judge Grim, though Dr.

Barnes could not be specific as to the date of actual mailing. Id.

      As noted above, Section 6404(b)(1) requires the clinical evaluation

and SOAB’s assessment be submitted to “the court” within 60 days of the

current commitment order’s expiration. 42 Pa.C.S.A. § 6404(b)(1). Section

6404(b)(2) requires “[t]he court” to hold a hearing no later than 30 days

after the assessment and evaluation are received. Id. § 6404(b)(2). Thus,

in this case, if we were to accept that the receipt of the SOAB’s assessment


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by Judge Lash on November 6, 2013, was receipt by “the court,” Section

6404(b)(1) would be satisfied as the submission occurred more than 60 days

before the expiration of the commitment order.     However, the hearing on

January 8, 2014, was more than 30 days after this date, so the time

constraints of Section 6404(b)(2) would not have been met. Conversely, if

we treat January 5, 2014, the date Judge Grim received the evaluation and

assessment as the submission date, the hearing would be timely for

purposes of Section 6404(b)(2). However, the evaluation and report would

be untimely for purposes of Section 6404(b)(1).

     Whichever characterization is proper, we nevertheless agree with the

County that Appellant is not entitled to relief because Appellant has not

shown prejudice. This Court has previously noted that “Act 21 implicates a

juvenile’s right to physical freedom.”   In re S.A., 925 A.2d 838, 846 (Pa.

Super. 2007) (citations omitted). In addition, these statutes “evidence[] a

desire by the General Assembly to establish civil commitment procedures

designed to provide necessary treatment to sexually violent delinquent

children and to protect the public from danger.”    Id. at 847.   This Court

went on to conclude that the Commonwealth’s interests forwarded by Act 21

are “compelling.”   Id.   When read together, as noted above, the time

constraints in Subsections (b)(1) and (b)(2) envision the documents being

submitted to the trial court 60 days prior to the expiration of the

commitment order, and the hearing being held not later than 30 days after


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said receipt. That leaves at least 30 days for any continuances or additional

hearings.

      In our view, the existence of these extra 30 days, reveal a policy to

complete all proceedings prior to the expiration of the existing commitment

order, to further both the committed person’s liberty interest to be free from

government restraint and the Commonwealth’s interest in protecting the

public.   This additional time allows the trial court flexibility in conducting

annual review proceedings, permitting it to grant continuances and extra

hearings if needed, so that it can have all of the materials necessary to

render a decision prior to the expiration of the commitment order.

      This 30-day window serves several important interests. It protects a

person from being committed without a valid court order. It also prevents

circumstances where time constraints might coerce the committed party to

ask for a continuance beyond the expiration date of the commitment order.

The 30-day window also reinforces the requirement of allowing the trial

court up to five days to render its decision, protecting against the trial court

needing to rush its decision, if the prior commitment order is about to

expire.     See 42 Pa.C.S.A. § 6403(c)(6) (stating, “[a] decision shall be

rendered within five days after the conclusion of the hearing[]”).       It also

helps avoid situations in which the County might request a continuance

beyond the expiration date of the commitment order.          In our view, the

central date of importance in these proceedings is the expiration date of the


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commitment order, as the interests served by the two subsections, are

measured in reference to that date as described above.

     To further illustrate this point, one of the main tenants of statutory

construction in this Commonwealth is “[t]hat the General Assembly does not

intend a result that is absurd, impossible of execution or unreasonable.” 1

Pa.C.S.A. § 1922(1).      Appellant’s proposed construction of the statute

encourages the illogical result that the trial court is required to release a

committed person who otherwise qualifies for continued commitment, based

solely on untimely filed documents that are otherwise accurate. Indeed, as

Appellant no longer challenges the sufficiency of the evidence for his

continued commitment, Appellant argues for such a result in this very case.

See Appellant’s Brief at 4 n.1. In our view, this would be an absurd result

that the General Assembly could not have intended.       See 1 Pa.C.S.A. §

1922(1). Based on these considerations, we conclude that to warrant relief,

a committed person subject to Section 6404(b) proceedings must show

prejudice from any untimely filing of the required evaluation and assessment

under Section 6404(b)(1).    We similarly conclude that prejudice must be

shown for the untimeliness of a hearing under Section 6404(b)(2).        See,

e.g., Liberty Mut. Ins. Co. v. Domtar Paper Co., 77 A.3d 1282, 1286

(Pa. Super. 2013) (permitting appellee’s untimely preliminary objections

where   the   appellant   “admit[ted]   there   was    no   prejudice,   and

[a]ppellees’ preliminary objections were only two days late[]”) (emphasis


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added), appeal granted, 92 A.3d 809 (Pa. 2014); accord Peters Creek

Sanitary Auth. v. Welch, 681 A.2d 167, 170 (Pa. 1996) (stating, “late

pleadings may be filed if the opposite party is not prejudiced and justice

requires[]”) (internal quotation marks and citation omitted) (emphasis

added).

      Appellant cites to a provision in the Mental Health Procedures Act

(Mental Health Act), pertaining to judicial review of a mental health review

officer’s certification.   Appellant’s Brief at 13-14; see also generally 50

P.S. § 7109(b) (requiring judicial review of a mental health review officer’s

certification within 72 hours). The provisions of the Mental Health Act have

been interpreted to mean that an untimely hearing requires the patient be

discharged. See, e.g., In re J.K., 595 A.2d 1287, 1290 (Pa. Super. 1991)

(stating,   “[t]his   court   has   concluded   that   where   the   [timeliness]

requirements are not fulfilled the commitment is unlawful[]”) (citation

omitted). However, we decline Appellant’s invitation to compare Act 21 with

the Mental Health Act. The purposes of the two statutes are distinct and to

require them to be construed similarly would be inappropriate.

      Turning to the case at bar, the record reflects that Appellant was

initially offered a continuance but ultimately declined it. N.T., 1/6/14, at 6;

N.T., 1/8/14, at 3. Importantly, as Appellant’s hearing took place prior to

the expiration of the original commitment order, there was a valid court

order in place at all times authorizing Appellant’s commitment. Therefore,


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Appellant suffered no unauthorized loss of his personal liberty.   Appellant

does not argue that he suffered any other prejudice resulting from the

timeliness issues in this case.   Consequently, we conclude that Appellant’s

argument on appeal that he is entitled to discharge fails under either

characterization of the proceedings below.

      Based on the foregoing, we conclude Appellant’s sole issue on appeal

is devoid of merit.   Accordingly, the trial court’s January 8, 2014 order is

affirmed.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2014




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