In re: K.B.F. Appeal of: K.B.F.

J-A09012-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.B.F., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

MONTGOMERY COUNTY EMERGENCY
SERVICES, INC. AND MONTGOMERY
COUNTY BEHAVIORAL AND
DISABILITIES OFFICE,

Appellee No. 965 EDA 2014

Appeal from the Order Entered March 19, 2014
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2013-25994

BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 20, 2015

K.B.F. appeals from the March 19, 2014 order denying his petition

seeking expungement of an involuntary mental health commitment that was

initiated under the Mental Health Procedures Act (“MHPA”), 50 P.S. §§ 7101,

et seq. Appellant also asks us to reverse the trial court’s refusal to allow

him direct review of the procedural and factual propriety of the mental

health proceeding in question. We affirm.

On August 19, 2013, Appellant instituted this action by filing a

document entitled “Petition to Expunge Under Section 7302 and Section

7303 of the Mental Health Procedures Act and Expungement of Record

Pursuant to 18 Pa.C.S. Sections 6105(f)(1) and 6111.1(g)(2),” (hereinafter
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“Petition”). On December 4, 2013, he filed an amendment of that document

entitled “Amendment of Expungement Petition to Include Appeal of K.B.F.

from the Involuntary Commitments and Order for Treatment Issued by

Defendants and its Doctors and Mental Health Hearing Officer and a Request

for Review of the Proceedings Conducted under Title 50 of the Pennsylvania

statutes Entitled ‘Mental Health’” (hereinafter “Amended Petition”). The

named defendants in this action were Montgomery County Emergency

Services, Inc. and Montgomery County Behavioral and Disabilities Office.

Montgomery County Emergency Services, Inc. replied to the petitions and is

the Appellee herein.

We first set forth the pertinent underlying facts, as found by the trial

court.

On the evening of July 10, 2009, K.B.F. got into an
altercation with his father, who then contacted the police. K..B.F.
was transported to Montgomery County Emergency Services
(MCES") by squad car, arriving at about 12:45 a.m. on July 11,
2009. Dr. Sujana Kurri examined him at approximately 1:40
a.m. and found that the Petitioner was severely mentally
disabled and in need of treatment. Dr. Kurri further found that
the Petitioner should be admitted to a facility designated by the
County Administrator for a period of treatment not to exceed
one-hundred and twenty (120) hours.

The Petitioner's father completed an application for a "302"
commitment ([50] P.S. § 7302) of his son, alleging his son had
attempted suicide and that there was a reasonable probability of
suicide unless his son received adequate treatment. The
Petitioner's father also alleged that his son had attempted to
mutilate himself and that there was a reasonable probability of
mutilation if the Petitioner was not afforded treatment under the
Act.

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On July 13, 2009, an MCES psychiatrist, Dr. Jordan
Santina, examined the Petitioner and found him to be severely
mentally ill and in need of treatment. As such, Dr. Santina
requested that the Court certify the Petitioner for extended
involuntary treatment under Section 303 of the Act (50 P_S. §
7303). The Petitioner was later served with a copy of a 303
Petition by MCES's court court coordinator, Christina Harmon.
Ms. Harmon explained to the Petitioner that he had a fight to a
hearing before a Mental Health Review Officer ("MHRO"), a right
to counsel, and a right to request a hearing before a judge within
seventy-two (72) hours if he was not satisfied with the results of
the hearing before the MHRO.

The following day, on July 14, 2009, MHRO Joseph
McGrory conducted a hearing, at which the Petitioner was
represented by Public Defender Gina Mattaliano. At the hearing,
the Petitioner acknowledged that he understood he was being
ordered to participate in up to twenty (20) days of outpatient
treatment. He also acknowledged that he would be required to
show up for his appointments, take any medications, and comply
with his treatment plan or he would be brought back to MCES for
inpatient treatment.

Petitioner's counsel placed on the record that she
explained to Petitioner his rights and that he understood and
wished to waive them. Counsel also stipulated that the petition
on its face was sufficient for certification under Section 303.

A board certified psychiatrist then testified that Petitioner
was mentally ill as defined by the Act. The doctor also testified
that Petitioner had committed acts that would satisfy Section
301, that those behaviors would continue if Petitioner was not
afforded treatment, and that twenty (20) days outpatient was
the least restrictive treatment alternative.

Trial Court Opinion, 5/22/14, at 1-3. Appellant filed this lawsuit nearly four

years later, on August 19, 2013,

In his Petition and Amended Petition filed in the present lawsuit,

Appellant sought expungement of the involuntary treatment proceeding

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pursuant to 18 Pa.C.S. § 6105(f)(1) and § 6111.1(g)(2). 1 He also asked the

trial court to directly review whether there was a sufficient factual basis for a

finding that he was in need of extended involuntary treatment under § 7303.

Appellant averred the following in this respect. He contended that his

behavior on the night of July 10, 2009, was solely the result of an interaction

between alcohol and an antibiotic that he was taking to treat Lyme’s disease,

and that he did not attempt to cut himself with the broken porch light, nor

was he mentally ill. Appellant did report that, on July 10, 2009, he was

under the care of a psychiatrist and was taking prescription medication for

post-traumatic stress disorder caused by an assault. Appellant maintained

that no doctor involved in the MHPA proceedings actually determined either

that he was severely mentally disabled due to a mental illness or that he

was a clear and present danger to himself or others.2

____________________________________________
1
The provisions of § 6111.1(g)(2) are set forth infra in connection with our
discussion of whether it allows for expungement of Appellant’s mental health
records herein. In his petition filed at the trial court level, Appellant did seek
expunction under 18 Pa.C.S. § 6105, but he does not advance in this appeal
any claim in that respect. See In re Keyes, 83 A.3d 1016 (Pa.Super. 2013)
(§ 6105 does not provide avenue for expungement of MHPA records). We
note that a different subsection of § 6111.1, subsection (f) was declared
unconstitutional by the Commonwealth Court. Leach v. Commonwealth,
118 A.3d 1271, 1273 (Pa.Comwlth. 2015).
2
On appeal, Appellant points out that, while there is a transcript of the
hearing before the mental health review officer, the other portions of the
record of his involuntary commitment proceeding, including the § 7302 and
§ 7303 petitions, are not contained in the certified record on appeal.
Appellant was the moving party herein, challenging the factual basis for his
(Footnote Continued Next Page)

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A hearing was held on the Petition and Amended Petition on January 8,

2014. Appellant sought to discredit the factual basis for the §§ 7302/7303

proceeding and to obtain either its expungement or direct review of its

propriety. Appellee countered that any request for direct review of the

MHPA proceedings was untimely and that Appellant could not obtain

expungement of a § 7303 extended involuntary treatment under the two

statutory provisions that Appellant had invoked in his petitions, 18 Pa.C.S.

§§ 6105(f)(1) and 6111.1(g)(2). Appellee maintained that the impetus for

these proceedings was that Appellant attempted to purchase a gun in Bucks

County and was arrested for unsworn falsifications for failing to reveal the

fact that he had been involuntarily committed under § 7303. The trial court

focused on whether Appellant could obtain review of the MHPA proceeding in

the first instance since the challenged proceeding transpired four years

before Appellant’s petitions were filed, the procedural mandates of the MHPA

were followed, and neither § 6105 nor § 6111.1(g)(2) allowed for

expunction of a § 7303 commitment.

Appellant posited that direct review of the involuntary commitment

proceeding was proper since the commitment proceedings imposed
_______________________
(Footnote Continued)
commitment, and he is also the appealing party before this Court. Thus, any
default in this respect is attributable to Appellant. Commonwealth v.
Powell, 956 A.2d 406, 423 (Pa. 2008) (it is the appellant’s responsibility to
ensure that the record contains the materials necessary to conduct appellate
review; when an appellant presents a claim dependent upon examination of
items not included in the record, the claim is waived).

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continuing disabilities upon him. Specifically, he noted that he could no

longer exercise his constitutional right to bear arms 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 section 302, 303 or

304 of the provisions of the act of July 9, 1976 (P.L. 817, No. 143), known

as the Mental Health Procedures Act” is not permitted to possess a firearm in

Pennsylvania.). Appellant also pointed out that the existence of the MHPA

records could affect his future employment opportunities and reputation. He

suggested that the MHPA contained no time limitation for obtaining direct

review by the court of common pleas of the propriety of an involuntary

commitment proceeding.

Appellant’s two petitions were denied by an order of court entered on

March 19, 2014. The trial court found that Appellant was not entitled to

expungement of his mental health records under the statutes upon which he

relied. The trial court also concluded that Appellant’s August 19, 2013

petition was not a timely appeal under the MHPA with respect to the July 14,

2009 § 7303 adjudication and that Appellant had failed to set forth grounds

for allowance of an appeal nunc pro tunc. This appeal followed.

Appellant raises these contentions on appeal:

1. When the procedures of the strictly construed Pennsylvania
Mental Health Act (50 P.S. § 7301 et seq.) are not followed,
rendering the involuntary commitment illegal under Fourteenth
Amendment due process and void ab initio, did the Lower Court
err in refusing to hold a hearing on appellant's Petition for

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Review and Expungement, citing § 5571 of the Pennsylvania
Judicial Procedure Act's 30 day appeal period, when the Mental
Health Act itself sets forth no time period and Pennsylvania
Appellate Courts have consistently held that involuntary
commitment issues are never moot, considering the stigma and
injury to reputation, and constitute a continuing harm, while
challenged procedures could continue yet their propriety would
evade appellate review of a matter of public interest?

(Answered in the negative by the Court below).

2. Did the Lower Court err in finding the case of In re Keyes, 83
A.3d 1016, 1024, prevented the Court from conducting a hearing
on Appellant’s Petition to Expunge the 302 under 18 Pa.C.S.A. §
6111.1(g)(2) even though appellant's involuntary commitment
was outpatient, while Keyes involved an inpatient commitment,
and both 50 P.S. § 7303 and 18 Pa.C.S.A. § 6105(c)(4) preclude
firearm possession only to those persons involuntarily committed
to a mental institution for inpatient care and treatment under §§
302, 303 or 304 of the Pennsylvania Mental Health Act?

(Answered in the negative by the Court below).

3. Was it error for the Lower Court Opinion to review facts and
evidence never properly introduced at a hearing or made part of
the Court record, but appears to be based on argument or briefs
of counsel, neither of which are evidence, with the Court never
conducting a hearing on the merits of the Petitions?

(Not answered by the Court below).

4. Did the Lower Court err in finding that appellant has not
alleged any factors that would allow it to grant a nunc pro tunc
appeal, even though the Court found that no nunc pro tunc
petition had been filed setting forth any factors for
consideration?

(Answered in the negative by the Court below).

5. Since an involuntary commitment is a quasi-criminal
proceeding, did the Lower Court err in denying a hearing similar
to a criminal PCRA, when the Second Amendment constitutional
prohibitions are ongoing and the Hospital, State Police and NCIS

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data base records continue to label appellant a mental defective,
with the associated stigma and injury to reputation protected by
Article I, Section 2 of the Pennsylvania Constitution, and
appellant's Petitions set forth both factual and procedural errors
regarding his commitment?

(Not answered by the Court below).

6. Did the Lower Court err in failing to consider appellant's
constitutional due process violations regarding the 302
involuntary commitment since appellant is prohibited from
owning or possessing a gun, a right guaranteed by the Second
Amendment and which right cannot be deprived without the
protections provided by due process?

(Not answered by the Court below).

Appellant’s brief at 4-5.

As Appellant notes, the trial court never addressed questions three,

five, and six. The reason for this omission flows from the fact that these

issues were not raised before the trial court. They therefore are waived for

purposes of this appeal. Tecce v. Hally, 106 A.3d 728, 732 (Pa.Super.

2014) (“It is axiomatic that, to preserve an objection for appeal, the

objection must be raised before the trial court.”). Specifically, as to issue

three, at the January 8, 2014 hearing, Appellant did not object at any point

to the receipt of information by the trial court through argument and by

reliance upon the averments in pleadings. Thus, contention three is waived.

Id. (“Pennsylvania's appellate courts have held, without apparent exception,

that the failure to object to unsworn testimony subjects a litigant to

waiver.”).

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Similarly, Appellant never maintained, as he does in question five, that

he should be afforded PCRA-type relief since involuntary commitments are

quasi-criminal in nature. To the contrary, he was adamant that he was not

seeking relief through means of the PCRA. Hearing, 1/8/14, at 25

(Appellant’s counsel: “No, it's not a PCRA”). Issue five is therefore also

waived.

As to his sixth allegation, Appellant did not challenge the

constitutionality of § 6105 under the Second Amendment of the United

States Constitution based upon the fact that § 6105 renders a person who

was subject to an involuntary commitment proceeding ineligible to own a

firearm.3 Accordingly, Appellant’s sixth issue is waived. Tecce, supra at

____________________________________________
3
Appellant’s original Petition and Amended Petition do not include a claim
that § 6105 is unconstitutional because it prevents him from owning a gun.
Likewise, this position was not presented at the hearing. In his brief,
Appellant notes that he raised constitutional challenges in his petitions and
cites portions of them. Appellant’s brief at 51. Our review of the sections of
the petitions relied upon by Appellant establishes that issue six was not
raised therein. The primary premise of both petitions was that the
procedure of the MHPS were violated and he was not mentally ill or severally
mentally disabled.

In his first Petition, Appellant maintained that he should have been
given the opportunity to voluntarily commit himself on July 10, 2009, so that
he could retain the right to carry a firearm. Petition, 8/19/13, at ¶ 17. He
also averred that his due process and equal protection rights were violated
because Appellee did not follow the “statutory procedures set forth in 50 P.S.
§ 7302 and 50 P.S. § 7303.” Id. at ¶ 46. As outlined herein, the statutory
procedures outlined in §§ 7202 and 7303 were scrupulously followed.

(Footnote Continued Next Page)

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732 (“Parties may waive rights, even due process rights and other rights of

constitutional magnitude.”).

Contention number six is waived for a second reason. Appellant avers

that § 6105 is unconstitutional, but has failed to notify the Attorney General

of Pennsylvania of his challenge, as required by Pa.R.C.P. 235. That rule

states that in any civil proceeding, “in which an Act of Assembly is alleged to

be unconstitutional . . . and the Commonwealth is not a party, the party

raising the question of constitutionality . . . shall promptly give notice

thereof by registered mail to the Attorney General of Pennsylvania together

with a copy of the pleading or other portion of the record raising the issue

and shall file proof of the giving of the notice.” Pa.R.C.P. 235. We have held

_______________________
(Footnote Continued)
In the Amended Petition, Appellant suggested that his public defender
was not authorized to stipulate to a finding that he was in need of extended
involuntary treatment because that stipulation resulted in deprivation of his
gun ownership rights. Amended Petition, 12/6/13, at ¶ 41. Appellant also
repeated the position that the mental health proceeding violated his due
process rights. Id. at ¶ 43. None of Appellant’s constitutional positions
included a position that § 6105 was unconstitutional under the Second
Amendment.

At argument, Appellant’s position regarding the impact of the Second
Amendment on this matter was as follows. Appellant was asked whether
there was a time limit for challenging the determination of a mental health
review officer that someone was in need of extended involuntary mental
health treatment. He responded, “No because there is a disability. Now
there’s a Second Amendment disability.” Petition Hearing, 1/8/14, at 3.
Appellant continued by observing that the Second Amendment accords a
citizen the right to bear arms, and Appellant represented that “as long as
that disability, the consequences exist, there is not [a] statute of limitations”
for challenging the § 7303 determination. Id. at 4.

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that in an “action that involves a constitutional challenge to a statute, in

which the Commonwealth is not a party, failure to provide Rule 235 notice

results in waiver of the constitutional issue.” Adelphia Cablevision

Associates of Radnor, L.P. v. University City Housing Co., 755 A.2d

703, 709 (Pa.Super. 2000). Therefore, issues three, five and six are waived

for purposes of this appeal.

We now address Appellant’s first question, which is a compendium of

various claims but primarily challenges the trial court’s determination that he

was not entitled to direct review of the 2009 MHPA proceeding. This position

pertains to the interpretation of § 7303’s provision relating to appeals.

Questions of statutory construction present questions of law, and our

“standard of review is de novo and our scope of review is plenary.” Dorsey

v. Redman, 96 A.3d 332, 337 (Pa. 2014).

In deciding that Appellant could not obtain direct review in 2013 of the

2009 proceeding, the trial court herein relied upon the fact that Appellant did

have the right to appeal the July 14, 2009 decision of the mental health

hearing officer, as outlined in § 7303 of the MHPA, but failed to file such an

appeal after the hearing conducted by the mental health review officer. The

pertinent provision states, “In all cases in which the [§ 7303] 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.” 50 P.S. § 7303(g). Thus,

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this subsection permitted Appellant to obtain review of his extended

involuntary commitment proceeding in July 2009.

As the trial court aptly observed, there is no indication in § 7303(g) as

to when a petition for review to the court of common pleas must be filed.

The trial court concluded that 42 Pa.C.S. § 5571, which governs appeals

generally, provided the applicable timeframe. Subsection (b) therein 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 (relating to appeals from ordinances, resolutions, maps,

etc.), 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.” 42 Pa.C.S. § 5571(b).

Our Supreme Court has observed that a mental health review officer is

“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[.]’” In re K.L.S., 934 A.2d 1244,

1247-48 (Pa. 2007) (partially quoting 50 P.S. § 7303(d); footnote omitted).

Hence, a proceeding before a mental health review officer is properly

characterized as a tribunal or other governmental unit.

We conclude that the trial court’s construction of these statutes is

unassailable. In § 7303(g), the MHPA permits review by the court of

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common pleas of the determination of a mental health review officer that a

person is in need of extended emergency involuntary treatment. Section

5571, which is contained in the Judicial Code, outlines time limitations for

taking appeals, and applies generally to all proceedings before a tribunal or

governmental unit. Indeed, our Supreme Court has observed that 42

Pa.C.S. § 5571(b) prescribes the period within which an appeal must be

taken for all appeals permitted by statute. Appeal of Chartiers Valley

School Dist. from Assessment of Property of Development

Dimensions Intern., Inc., 462 A.2d 673, 674 (Pa. 1983). Section 7303(g)

is a statute and permits an appeal; therefore, 42 Pa.C.S. § 5571(b) outlines

the period within which such an appeal must be filed.

Hence, the trial court properly held that Appellant could not obtain,

through an August 19, 2013 petition, direct review in the court of common

pleas of the propriety of his extended involuntary commitment proceeding

since it occurred from July 10 through July 14, 2009. Appellant’s assertion

that there was no time limit on his right to appeal to the court of common

pleas from the mental health review officer’s finding that he was in need of

extended involuntary commitment is without merit. Appellant’s brief at 26.

(42 Pa.C.S. § 5571(b) “conflicts with the Mental Health Procedures Act itself,

which sets forth no time limit to file a Common Pleas Court petition to review

the Hearing Officer certification.”).

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In connection with his first position, Appellant also maintains that “the

procedures of the strictly construed Pennsylvania Mental Health Act (50 P.S.

§ 7301 et seq.) [were] not followed, rendering the involuntary commitment

illegal under Fourteenth Amendment due process and void ab initio.”

Appellant’s brief at 26; Id. at 27 (“Because of the procedural defects, the

commitment should never have taken effect.”). The various procedural

steps enacted by the legislature in the MHPA are safeguards specifically

designed to protect a patient’s due process rights. In re J.M., 726 A.2d

1041, 1047 n. 9 (Pa. 1999); In re Ryan, 784 A.2d 803 (Pa.Super. 2001).

We disagree with Appellant’s claim that his procedural due process

rights were violated because we conclude that each mandate of the MHPA

was followed. Section 7301 of the MHPA, relating to persons who may be

subject to involuntary emergency examination and treatment, provides that

if “a person is severely mentally disabled and in need of immediate

treatment, he may be made subject to involuntary emergency examination

and treatment.” 50 P.S. § 7301(a). That provision further states that an

individual is “severely mentally disabled when, as a result of mental illness,

his capacity to exercise self-control, judgment and discretion in the conduct

of his affairs and social relations or to care for his own personal needs is so

lessened that he poses a clear and present danger of harm to others or to

himself.” Id. Included within the definition of a person who has posed a

clear and present danger of harm to himself is someone who has attempted

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suicide or attempted to substantially mutilate himself if there is a reasonable

probability of suicide or mutilation unless the person obtains adequate

treatment under the Act.4

____________________________________________
4
Specifically, the MHPA outlines:

(2) Clear and present danger to himself shall be shown by establishing that
within the past 30 days:

(i) the person has acted in such manner as to evidence that he
would be unable, without care, supervision and the continued
assistance of others, to satisfy his need for nourishment,
personal or medical care, shelter, or self-protection and safety,
and that there is a reasonable probability that death, serious
bodily injury or serious physical debilitation would ensue within
30 days unless adequate treatment were afforded under this
act; or

(ii) the person has attempted suicide and that there is the
reasonable probability of suicide unless adequate treatment is
afforded under this act. For the purposes of this subsection, a
clear and present danger may be demonstrated by the proof
that the person has made threats to commit suicide and has
committed acts which are in furtherance of the threat to commit
suicide; or

(iii) the person has substantially mutilated himself or
attempted to mutilate himself substantially and that there
is the reasonable probability of mutilation unless adequate
treatment is afforded under this act. For the purposes of this
subsection, a clear and present danger shall be established by
proof that the person has made threats to commit mutilation
and has committed acts which are in furtherance of the threat
to commit mutilation

50 P.S. § 7301 (emphases added)(b)(2).

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In this case, the strictures of § 7301 were met. On the night of July

10, 2009, Appellant had an altercation with his father, who ejected Appellant

from the house. While on the porch of his home, Appellant broke a porch

light and started to cut his wrists with the broken glass, evidencing that he

was a danger to himself as he was attempting to either kill himself or

substantially mutilate himself. After viewing Appellant’s attempt to harm

himself with broken glass by cutting his wrists, Appellant’s father called the

police, who transported Appellant to Montgomery County Emergency

Services, Inc.

Section 7302 of the MHPA allows for an involuntary emergency

examination and treatment for a period not to exceed 120 hours (five days).

It provides that an involuntary emergency treatment examination can be

“undertaken at a treatment facility . . . upon application by . . . [an]

authorized person who has personally observed conduct showing the need

for such examination.” 50 P.S. § 7302(a). Herein, Appellant’s father

followed the police to Montgomery County Emergency Services, Inc., and the

“father completed an application for an involuntary examination and

treatment under § [7]302 of the MHPA, claiming he believed petitioner

either attempted suicide or mutilated himself or attempted to mutilate

himself.” Memorandum in Support of Petition and Amended Petition,

2/6/14, at 8. Since Appellant’s father personally observed behavior

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demonstrating a need for an involuntary emergency treatment examination

and applied for such treatment, the requirements of § 7302 were met.

Section 7302(b) also provides, “A person taken to a facility shall be

examined by a physician within two hours of arrival in order to determine if

the person is severely mentally disabled within the meaning of section

[7]301 and in need of immediate treatment.” In this matter, Appellant

arrived at Montgomery County Emergency Services, Inc. at 12:45 a.m., and

was examined at 1:40 a.m., within two hours. Dr. Sujana Kurri examined

Appellant and found that he was severely mentally disabled and in need of

treatment. Dr. Kurri concluded that Appellant should be admitted to a

treatment facility for a period not to exceed 120 hours.

Involuntary emergency treatment may be extended beyond five days

under 50 P.S. § 7303(a), which states: “Application for extended involuntary

emergency treatment may be made for any person who is being treated

pursuant to section [7]302 whenever the facility determines that the need

for emergency treatment is likely to extend beyond 120 hours.” The record

in this case reveals that on July 13, 2009, Dr. Jordan Santina, a psychiatrist,

examined Appellant and found that he was severely mentally disabled and in

need of further treatment. Dr. Santina therefore requested that Appellant

be certified by a mental health review officer as in need of extended

involuntary emergency treatment. The petition completed by Dr. Santina

recommended that Appellant receive inpatient treatment. Appellant was

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served with a copy of the § 7303 petition and its contents were explained to

him by the hospital’s mental health court coordinator.5

Once a petition for extended involuntary emergency treatment is filed,

§ 7303(b) requires appointment of counsel and a hearing before a judge or

mental health review officer. That provision reads: “Upon receiving [a §

7303(a)] application, the court of common pleas shall appoint an attorney

who shall represent the person unless it shall appear that the person can

afford, and desires to have, private representation. Within 24 hours after

the application is filed, an informal hearing shall be conducted by a judge or

by a mental health review officer[.]” 50 P.S. § 7303(b). In this case, within

twenty-four hours, on July 14, 2009, mental health review officer Joseph

McGrory held a hearing, where Appellant was represented by a public

defender, Gina Mattaliano, Esquire. Thus, § 7303(b) was satisfied.

Prior to the hearing for extended involuntary treatment, the public

defender was able to speak to the doctor who completed the petition for

extended involuntary inpatient treatment and had the doctor change his

____________________________________________
5
On appeal, Appellant contests that there is a factual basis for the findings
that he was served a copy of the § 7303 petition and that the mental health
court coordinator at Norristown Hospital explained it to him. However, at
the hearing on Appellant’s Petition and Amended Petition, the trial court was
informed about these events. N.T. Hearing, 1/8/14, at 19 (“Not only was
[Appellant] served with a copy of the [7]303 petition, just so that we are
clear, but it was also explained to him by the mental health court
coordinator who is also present here today.”). Appellant did not challenge
the accuracy of this representation.

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recommendation from inpatient to outpatient treatment. N.T. Hearing,

1/8/14, at 34. A transcript of the hearing before the mental health review

officer is contained in the record. At that July 14, 2009 hearing, the mental

health review officer ordered extended treatment consisting of twenty days

of outpatient treatment. Appellant agreed to twenty days of outpatient

treatment and said that he understood that he had to appear for doctor

appointments, take his medication, and comply with his treatment plan.

Appellant’s lawyer reported that she had explained Appellant’s rights to him

and that he understood them. Appellant stipulated that the contents of the

§ 7303 petition were sufficient to enter an order for extended involuntary

treatment. A doctor testified that Appellant was mentally ill as defined by

the MHPA, that Appellant had committed behavior satisfying the mandates of

§ 7301, and that the behavior would continue if Appellant was not afforded

treatment.

We now examine certain factual assertions made by Appellant in his

petitions that were subsequently disproven. Appellant claimed that he

arrived at the mental health facility at midnight and that Dr. Kurri’s

examination was not held within two hours. Petition, 8/16/13, at ¶¶ 10, 14,

16. However, Appellant later acknowledged that Dr. Kurri’s notes stated

both that Appellant arrived at the facility at 12:45 a.m. on July 11, 2009,

and that the examination transpired at 1:40 a.m. Memorandum in Support

of Petition and Amended Petition, 2/6/14, at 8.

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Appellant also alleged that he did not remember Dr. Jordan Santina’s §

7303 examination on July 13, 2009. Amended Petition, 12/4/13, at ¶ 27.

Documents of record filed by Appellant himself establish that the

examination did occur. Memorandum in Support of Petition and Amended

Petition, 2/6/14, at Exhibit D, page 3. Finally, Appellant maintained that he

did not attend a § 7303 involuntary commitment hearing, had no notice that

one would occur, and no § 7303 hearing transpired. Petition, 8/16/13, at ¶

27-29. The record substantiates that Appellant received both a copy of a

§ 7303 petition and that its contents were explained to him. Additionally,

the record contains a transcript of Appellant’s § 7303 hearing, where

Appellant was present with counsel.

Appellant’s rambling argument suggests his due process rights were

violated. Those rights would have been violated had the procedures of the

MHPA not been followed. All of Appellant’s claimed violations of the MHPA

were disproven. Since each mandate of the MHPA was satisfied in this case,

we reject Appellant’s position that he was denied due process and that the

proceedings were void ab initio. Concomitantly, we find unavailing

Appellant’s reliance on cases involving that factual scenario. See Wolfe v.

Beal, 384 A.2d 1187 (Pa. 1978) (once trial court determined that

commitment proceeding violated Wolfe’s due to process rights and was null

and void, Wolfe was entitled to destruction of the hospital records of her

mental health commitment); In re Ryan, supra (where procedures outlined

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in MHPA were not followed, Ryan could obtain expungement of his mental

health commitment records); Commonwealth v. C.B., 452 A.2d 1372

(Pa.Super. 1982) (C.B. was not given copy of a petition three days in

advance of hearing held pursuant to § 7304 (relating to court-ordered

involuntary treatment not to exceed ninety days), as required by MHPA; C.B.

was entitled to expungement of all records of commitment).

Since there were no procedural defects affecting notice or due process

rights herein, Appellant cannot avoid the time limitations for taking an

appeal based upon cases failing to apply time limitations on appeals due to

these types of irregularities. See Glen-Gery Corp. v. Zoning Hearing Bd.

of Dover Tp., 907 A.2d 1033, 1035 (Pa. 2006) (finding that “a claim

alleging a procedural defect affecting notice or due process rights in the

enactment of an ordinance may be brought notwithstanding” the time

limitations for challenging ordinances), superseded by statute as stated in,

Messina v. East Penn Tp., 995 A.2d 517 (Pa.Cmwlth. 2010). We thus

reject Appellant’s position that § 5571 cannot be applied herein under

“Pennsylvania Appellate Court’s consistent decisions that the Mental Health

Act procedural violations and denial of constitutional due process are never

moot and must be reviewed by the Court.” Appellant’s brief at 28.

We are aware that Wolfe, which solely related to procedural due

process violations, has subsequently been expanded to permit merits review

of whether the evidence presented during a MHPA proceeding was sufficient

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to find that a person was in need of involuntary treatment under the MHPA.

See In re R.F., 914 A.2d 907 (Pa.Super. 2006). However, we concur with

the trial court’s assessment that Appellant has waived merits review of the

sufficiency of the evidence supporting that he was in need of extended

involuntary emergency treatment under § 7303. Specifically, Appellant

stipulated that the contents of the § 7303 petition were sufficient to

establish that he was in need of extended involuntary treatment.

Appellant also complains that enforcement of a thirty-day time limit for

seeking direct review of the MHPA proceedings deprives him of “any court

review of the Mental Health Officer’s certification, even though the

certification effects, stigma, loss of employment opportunities, placement in

data bases as a mentally ill person and deprivation of Second Amendment

rights, continue without any avenue of relief.” Id. The fault in this regard,

however, is attributable to Appellant. Appellant was given a copy of the

§ 7303 petition and its assertions were explained to him. The transcript of

the proceeding before the mental health review officer establishes that he

was present at that proceeding and stipulated that he was in need of

extended involuntary mental health treatment. A doctor opined that

Appellant was mentally ill. As of that date, Appellant was aware that he was

found mentally ill, would be stigmatized, and may lose employment

opportunities. Likewise, he was aware of counsel’s performance at that

hearing. He was informed of his rights, which, at that point, were limited to

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an appeal of the § 7303 finding and assistance of counsel during that appeal.

He failed to take any action at that time.

We address issue four rather than issue two at this juncture since they

are related. Specifically, Appellant’s fourth contention is that he should have

been accorded the right to appeal nunc pro tunc. Our standard of review in

this context is deferential and “denial of an appeal nunc pro tunc is within

the discretion of the trial court, and we will only reverse for an abuse of that

discretion.” Vietri ex rel. Vietri v. Delaware Valley High School, 63

A.3d 1281, 1284 (Pa.Super. 2013). “An abuse of discretion occurs when a

trial court, in reaching its conclusions, overrides or misapplies the law, or

exercises judgment which is manifestly unreasonable, or the result of

partiality, prejudice, or ill will.” Id. (citation omitted).

An allowance of appeal nunc pro tunc is permitted when there was

fraud or a breakdown in the operations of the court. Id. Additionally, “nunc

pro tunc relief may also be granted where the appellant demonstrates that

“(1) his notice of appeal was filed late as a result of nonnegligent

circumstances, either as they relate to the appellant or the appellant's

counsel; (2) he filed the notice of appeal shortly after the expiration date;

and (3) the appellee was not prejudiced by the delay.” Id. (citation

omitted).

In this case, Appellant first argues that a nunc pro tunc appeal should

be granted in light of the evidence that the §§ 7302 and 7303 commitments

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were illegal since he was not mentally ill and counsel was ineffective for

permitting him to stipulate that he was mentally ill. These positions do not

pertain to fraud or breakdown in the court’s operation. They likewise fail to

indicate that counsel was going to file an appeal but failed to do so due to

non-negligent circumstances. If we assumed, for the sake of argument, that

the appeal was not filed due to non-negligent conduct by counsel, Appellant

still failed to establish the second and third aspects for obtaining nunc pro

tunc relief in that context. Specifically, he did not file the notice of appeal

shortly after the expiration date. Additionally, Appellee asserted prejudice

by the delay. At the hearing held, Appellee specifically maintained that it

would be prejudiced by allowance of a direct appeal due to the passage of

time and the fact that memories had faded regarding events occurring, by

that time, four and one-half years beforehand. N.T. Hearing, 1/8/14, at 26.

It continued, “There’s a reason why we put time limits on appellate

procedures. It’s because it’s supposed to be fair and balanced to both

sides.” Id. Hence, this argument does not entitled Appellant to a nunc pro

tunc appeal.

Appellant also claims that he was not advised of his right to appeal.

This position pertains to a fraud or breakdown in the operations of the

proceeding and would warrant the grant of nunc pro tunc relief. However,

the record, i.e., the transcript of the hearing held on July 14, 2009 before

the mental health review officer, belies Appellant’s factual assertion.

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Appellant’s attorney stated that she had explained Appellant’s rights to him.

At that point, Appellant’s rights consisted of continued representation by

counsel and to petition for review in the court of common pleas under §

7303(g). See 50 Pa.C.S. § 7303(d).6 Appellant provides no authority for

the proposition that the mental health review officer could not rely upon

counsel to inform Appellant of his right to obtain review of the commitment
____________________________________________
6
That section states:

(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.

50 Pa.C.S. § 7303(d)(emphasis added).

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in the court of common pleas and to have the assistance of counsel in

connection with that review.

Appellant observes that he was entitled to effective assistance of

counsel. In this respect, he relies upon In re Hutchinson, 454 A.2d 1008,

1010 (Pa. 1982). Hutchinson was involuntarily committed to a state hospital

for ninety days under § 7304, which permits court-ordered involuntary

treatment for a period not to exceed ninety days. At the hearing before the

court of common pleas on the § 7304 petition, it was established through

the use of hearsay proof that Hutchinson struck and threatened to kill

relatives and thus that she was a danger to others. Hutchinson denied those

averments and claimed that the relatives in question had a motive to

fabricate the charges. The court ordered her to be committed involuntarily

to the state hospital under § 7304 for ninety days.

Hutchinson obtained new counsel and filed a timely direct appeal to

this Court. We concluded that counsel was ineffective for failing to object to

the proof that Hutchinson was dangerous based upon hearsay when

Hutchinson denied the veracity of the allegations. Our Supreme Court

affirmed that ruling. It held that a patient in a MHPA proceeding is entitled

to effective assistance of counsel and determined that trial counsel was

ineffective for failing to object to the proof for the need of a ninety-day term

of involuntary inpatient treatment through the use of challenged hearsay. It

then remanded for the conduct of another hearing.

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In that case, ineffective assistance of counsel was raised in a timely

direct appeal. Appellant herein invokes ineffective assistance of counsel to

collaterally attack a MHPA proceeding held years ago. He seeks the benefit

of a ruling pertaining to matters involving an adjudication of delinquency in a

juvenile case. See In Interest of A.P., 617 A.2d 764 (Pa.Super. 1992)

(granting of nunc pro tunc appeal from juvenile court’s dispositional ruling

based upon counsel’s ineffectiveness); Matter of Smith, 573 A.2d 1077

(Pa.Super. 1990) (noting that juvenile, in a delinquency proceeding, has

same right to counsel as an adult in a criminal prosecution). There is no

support for Appellant’s position that ineffective assistance of counsel is

grounds for an appeal nunc pro tunc in civil setting, and, as outlined above,

Appellant waived any position that he could pursue post-conviction relief

based upon the fact that MHPA proceedings are quasi-criminal in nature.

We now address Appellant’s second position, which involves his

claimed right to expungement. “Our well-settled standard of review in cases

involving a motion for expunction is whether the trial court abused its

discretion.” In re: Vencil, 120 A.3d 1028, 1032 (Pa.Super. 2015) (citation

omitted). In seeking expungement, Appellant relies upon statutory language

in 18 Pa.S.C. § 6111.1(g)(2):

(g) Review by court.--

(1) Upon receipt of a copy of the order of a court of
competent jurisdiction which vacates a final order or an
involuntary certification issued by a mental health review officer,

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the Pennsylvania State Police shall, after disclosing relevant
records under subsection (f)(3), expunge all records of the
involuntary treatment received under subsection (f).

(2) 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. A petition filed under this subsection shall toll the 60-
day period set forth under section 6105(a)(2).

(3) The Pennsylvania State Police, after disclosing relevant
records under subsection (f)(3), shall expunge all records of an
involuntary commitment of an individual who is discharged from
a mental health facility based upon the initial review by the
physician occurring within two hours of arrival under section
302(b) of the Mental Health Procedures Act and the physician's
determination that no severe mental disability existed pursuant
to section 302(b) of the Mental Health Procedures Act. The
physician shall provide signed confirmation of the determination
of the lack of severe mental disability following the initial
examination under section 302(b) of the Mental Health
Procedures Act to the Pennsylvania State Police.

18 Pa.C.S. § 6111.1(g).

The first subpart of (g) allows for expungement if the police receive a

copy of a court order reversing a mental health review officer’s

determination that a person should be subject to involuntarily commitment;

it clearly does not apply herein since no court overturned Appellant’s

extended involuntary commitment. The second and third subparts of §

6111.1(g) apply to § 7302 commitments. See In re Vencil, supra

(expunging record of § 7302 commitment where evidence was insufficient to

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support a finding that Vencil was severely mentally disabled as a result of

mental illness).

There is binding precedent on the question presently before this panel.

In In re Jacobs, 15 A.3d 509 (Pa.Super. 2011), Jacobs was involuntarily

committed under § 7302, and Jacob’s medical provider obtained extended

involuntary commitment under § 7303. We ruled that § 6111.1(g) did not

provide for expunction, stating “18 Pa.C.S. § 6111.1(g) provides no

opportunity to obtain expunction of mental health records pursuant to a

commitment under § 7303. This undoubtedly reflects the fact that

commitment under § 7303 indicates a more serious mental problem, and the

fact that commitment under § 7302 only requires a doctor's determination,

while commitment under § 7303 imposes major due process requirements.”

Id. at 511. We noted in Jacobs that the appellant “had the opportunity in

2004 [when the involuntary treatment proceeding was held] to appeal his

commitment under § 7303, and he chose not to do so.” Id. We continued,

“The lower court had no jurisdiction under 18 Pa.C.S. § 6111.1(g) to review

appellant's commitment under § 7303. That statute only imbues the lower

court with jurisdiction to review commitments under § 7302.” Id.

This Court subsequently applied Jacobs in In re Keyes, 83 A.3d 1016

(Pa.Super. 2013), noting therein that § 6111.1(g) provides no mechanism

for expungement of a § 7303 extended involuntary emergency treatment

certified by a mental health review officer if the § 7303 ruling was not

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vacated by the court of common pleas. Since Appellant’s commitment was a

§ 7303 involuntary commitment proceeding certified by a mental health

review officer and was not vacated by court order, § 6111.1(g) does not

provide an avenue for relief.

Appellant attempts to distinguish the holding in Keyes as to his ability

to obtain expunction under § 6111.1 by conflating it with Keyes’

interpretation of § 6105. Appellant “contends that the Lower court failed to

properly read the Keyes case wherein this Superior Court set forth the

provisions of 18 Pa.C.S.A. § 6105(c)(4).” Appellant’s brief at 34. He notes

that he was never committed for inpatient treatment under Ҥ [7]303 of the

MHPA and is not precluded under the provisions of gun ownership by §

[7]303.” Appellant’s brief at 35. However, Appellant cannot own a gun due

to his inpatient § 7302 treatment. Specifically, 18 Pa.C.S. § 6105 outlines

who may not possess, use, manufacture, control, sell or transfer firearms.

Included among those prohibited persons is anyone

who has been adjudicated as an incompetent or who has been
involuntarily committed to a mental institution for
inpatient care and treatment under section 302, 303 or 304
of the provisions of the act of July 9, 1976 (P.L. 817, No. 143),
known as the Mental Health Procedures Act. This paragraph
shall not apply to any proceeding under section 302 of the
Mental Health Procedures Act unless the examining physician has
issued a certification that inpatient care was necessary or that
the person was committable.

18 Pa.C.S. § 6105(c)(4) (emphasis added).

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Appellant also suggests that the Keyes court’s analysis of the right to

expungement under § 6111.1(g) is inapplicable herein because he was not

subjected to inpatient treatment in the § 7303 proceeding. Appellant’s

reading of the Keyes decision is misguided. Keyes sought expunction under

18 Pa.C.S. § 6111.1(b) and § 18 Pa.C.S. § 6105. Our discussion of those

positions were quite distinct and directly applicable herein. We held: “18

Pa.C.S.A. § 6111.1(g) provides no opportunity to obtain expunction of

mental health records pursuant to a commitment under § 7303.” Keyes,

supra at 1020. This statement was not dependent upon whether the

extended involuntary treatment was inpatient or outpatient; it mattered only

that it was extended involuntary treatment under § 7303, which is the case

herein. Our holding as to § 6105 was equally clear. We outlined that

nothing in 18 Pa.C.S. § 6105 “imbued the lower court with authority to

expunge his record of involuntary commitments under the MHPA.” Id. at

1022.

Thus Appellant cannot obtain expunction herein based upon the fact

that his § 7303 treatment was outpatient rather than inpatient. In this case,

a psychiatrist concluded that Appellant was in need of extended involuntary

inpatient mental health treatment and petitioned for the same. Appellant’s

counsel requested that the treatment be accorded on an outpatient basis,

and the doctor assented to that method of remediation. Appellant is entitled

to no relief.

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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/20/2015

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