J-A03002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: NANCY WHITE VENCIL                          IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA




APPEAL OF: NANCY W. VENCIL

                            Appellant                  No. 472 MDA 2014


                Appeal from the Order entered February 24, 2014
              In the Court of Common Pleas of Cumberland County
                           Civil Division at No: 12-665


BEFORE: MUNDY, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                             FILED APRIL 19, 2017

        On direct appeal to this Court, we reversed the trial court’s order

denying the petition of Nancy White Vencil (”Vencil”) seeking expunction of

the records of her involuntary commitment under § 7302 of the Mental

Health Procedures Act of 1973.1 In re Vencil, 120 A.3d 1028 (Pa. Super.

2015). The Pennsylvania State Police (“PSP”) petitioned our Supreme Court

for allowance of appeal.        The Court granted discretionary review, vacated

our ruling, and remanded to this Court for proceedings consistent with its

opinion. In re Vencil, 152 A.3d 235 (Pa. 2017).

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
  50 P.S. §§ 7101-7503.          Commitments under § 7302 are referred to as
“302 commitments.”
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       Briefly,   on   February      3,    2012,   Vencil   filed   a   petition   under

§ 6111.1(g)(2) of the Pennsylvania Uniform Firearms Act of 1995 (“UFA”) 2

seeking to expunge the records of her April 2003 involuntary commitment.

After respondents, the PSP and Holy Spirit Hospital of the Sisters of Christian

Charity (“Holy Spirit”), filed their answers to the petition, the trial court

conducted a de novo hearing during which Vencil and her husband presented

testimony along with documentation from two medical doctors who were

treating Vencil for environmental sensitivities prior to her commitment and a

report from a psychiatrist whose review led him to conclude the commitment

was improper. Holy Spirit introduced into evidence its records, including the

evaluation and findings of David Petcash, M.D., the psychiatrist who

determined that Vencil should be involuntarily committed.                     The PSP

presented the testimony of David Diehl, a trained crisis worker at Holy Spirit,

who initially met with Vencil on the evening of April 1, 2003, and requested

____________________________________________


2
  18 Pa.C.S.A. §§ 6101-6187.              Section 6111.1(g)(2) provides, in relevant
part:

       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.




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the emergency psychiatric examination that Dr. Petcash subsequently

conducted.

     The trial court denied Vencil’s petition and made several findings,

including a conclusion that there was “clear and convincing evidence to

support [Vencil’s] 302 commitment.” Trial Court Opinion, 7/18/14, at 6-7.

The court noted that it was unsure the law required “clear and convincing

evidence,” but explained that it applied that standard based on an

agreement of the parties. Id. at 7, n. 41.

     On appeal to this Court, we reversed, holding that while the trial court

properly conducted a de novo hearing and utilized a “clear and convincing”

evidentiary hearing, the court erred in concluding that the evidence

presented at the hearing clearly and convincingly supported Vencil’s 302

commitment. In re Vencil, 120 A.3d at 1041.

     Our Supreme Court granted the PSP’s petition for allowance of appeal

to consider two issues: whether we erred in holding that the trial court

correctly employed a “clear and convincing” standard and whether we erred

in finding that Vencil was entitled to de novo review by the trial court. See

In re Vencil, 152 A.3d at 241.

     The Supreme Court considered the two issues together, employing a

de novo standard of review and a plenary scope of review.         The Court

concluded that the trial court should have used a “preponderance of the

evidence” standard of review and should have limited its review to “the


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sufficiency of the evidence upon which the commitment was based.”

Id. at 242 (quoting 18 Pa.C.S.A. § 6111.1(g)(2)) (emphasis in original).

The Court explained:

     “[T]he evidence upon which the commitment was based” is the
     information contained in the physician’s record of the
     examination of the individual and the resultant findings. See 50
     P.S. § 7302(b) (requiring the physician to make a record of the
     examination and his or her findings). Therefore, 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. See 50 P.S. § 7301.

Id. (footnote omitted).

     The Court announced:

     [U]nder section 6111.1(g)(2), a challenge to the sufficiency of
     the evidence to support a 302 commitment presents a pure
     question of law, and the court’s sole concern is whether, based
     on the findings recorded by the physician and the information he
     or she relied upon in arriving at those findings, the precise,
     legislatively-defined prerequisites for a 302 commitment have
     been satisfied and are supported by a preponderance of the
     evidence. We emphasize that the trial court’s review is limited
     to the findings recorded by the physician and the information he
     or she relied upon in arriving at those findings, and requires
     deference to the physician, as the original factfinder, as the
     physician examined and evaluated the individual in the first
     instance, was able to observe his or her demeanor, and has
     particularized training, knowledge and experience regarding
     whether a 302 commitment is medically necessary.

Id. at 246.   However, because Dr. Petcash’s decision to commit Vencil

involuntarily under the newly-announced standard for a § 6111.1(g)(2)

review was beyond the scope of its grant of allocatur, the Supreme Court

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vacated our decision and remanded to us for proceedings consistent with its

opinion. We, in turn, remand to the trial court for its review—limited to the

findings recorded by the physician and the information he relied upon in

arriving at his findings, and according deference to him as the original

factfinder—and its determination as to whether Vencil’s 302 commitment

was supported as medically necessary by a preponderance of the evidence.

In the event the trial 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 PSP be expunged in

accordance with § 6111.1(g)(2).

        Case remanded for proceedings consistent with this Memorandum and

the Supreme Court’s Opinion. Jurisdiction relinquished.

        Judge Mundy did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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