J-A16031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: PETITION OF J.M.Y. IN THE SUPERIOR COURT OF
PENNSYLVANIA
ALLEGHENY COUNTY DEPARTMENT OF
BEHAVIORAL HEALTH AND THE
PENNSYLVANIA STATE POLICE,
Appellees
APPEAL OF: J.M.Y.
No. 1323 WDA 2015
Appeal from the Order March 10, 2015
In the Court of Common Pleas of Allegheny County
Orphans' Court at No(s): CC 1419 of 2014
BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 16, 2016
While the Majority presents a cogent analysis in this matter, I am
compelled to respectfully register my dissent.
Instantly, Appellant was a student at the University of Pittsburgh on
September 21, 2012, when he attended a fraternity party and became
intoxicated. At the time, Appellant was taking prescribed medications for
depression and anxiety. On that date, Appellant was apprehended by
University of Pittsburgh Police when it was reported that Appellant was
attempting to harm himself. The police took Appellant to Western
Psychiatric Hospital, where he was involuntarily committed under section
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*
Retired Senior Judge assigned to the Superior Court.
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302 of the Mental Health Procedures Act (“MHPA”) 50 P.S. § 7101, et seq.
Subsequently, Appellant was discharged on September 25, 2012.1 Appellant
continued his course of studies in law enforcement at the University of
Pittsburgh. On November 24, 2014, he filed a petition to vacate and
expunge his involuntary commitment pursuant to 18 Pa.C.S. § 6105(f)(1)2
and 18 Pa.C.S. § 6111.1(g)2).3 A hearing was held on January 8, 2015, and
on March 10, 2015, the trial court signed an order denying Appellant’s
petition for expungement.4 Appellant filed exceptions that were denied by
operation of law, resulting in this appeal on August 27, 2015.5
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1
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 MHPA is prohibited from possessing, using,
controlling, selling, transferring, or manufacturing a firearm. In addition,
Appellant is prohibited from possessing a firearm under 18 U.S.C.
§ 922(g)(4).
2
Under 18 Pa.C.S. § 6105(f)(1), the court of common pleas, upon
application of a person subject to prohibition under section 6105(c)(4), “may
grant such relief as it deems appropriate if the court determines that the
applicant may possess a firearm without risk to the applicant or any other
person.”
3
Section 6111.1(g)(2) provides a means for expungement of records of
section 302 involuntary commitment where the evidence was insufficient to
justify such commitment.
4
The order dated March 10, 2015, was not entered upon the docket until
August 26, 2015. Record Docket Entry # 7.
5
On October 7, 2015, the trial court issued an opinion in support of its
March 10, 2015, order. The trial court concluded that Appellant was validly
committed under section 303 and, thus, was barred from possessing a
(Footnote Continued Next Page)
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The learned Majority is correct in its statement that prevailing case law
has interpreted 18 Pa.C.S. § 6111.1(g) as providing no opportunity to obtain
expunction of mental health record pursuant to a commitment under section
303 and only allows for a trial court to review commitments under section
302. See In re Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011). In addition, I
agree with the Majority’s statement “that an appellant seeking expunction
and restoration of firearms rights cannot ‘bootstrap’ review of a section 303
commitment to a petition seeking review of a section 302 commitment under
section 6111.1(g) because the section 303 commitment is ‘an entirely
separate judicial proceeding, complete with its own avenue of appeal.’”
Majority Memorandum, at 7 (quoting Jacobs). However, it is my firm belief
that only a section 303 commitment that provides adequate due process
may preclude an expunction of a section 302 commitment.
_______________________
(Footnote Continued)
firearm under 18 Pa.C.S. § 6105(a)(1) and (c)(4). Trial Court Opinion,
10/7/15, at 1. The trial court stated, however, that it limited its review to
the sufficiency of the evidence for the section 303 commitment. Id. at 2. In
addition, the trial court noted the following:
On July 28, 2015, an Order was filed in the matter restoring
[A]ppellant’s rights to possess a firearm under 18 Pa.C.S.A.
§ 6105(f)(1). Although this allows Appellant to again possess a
firearm under Pennsylvania law, he is still barred from
possessing a firearm under the federal Gun Control Act. 18
U.S.C.A. § 922(g)(4).
Trial Court Opinion, 10/7/15, at 1, n.1.
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The law in Pennsylvania is “well-settled that involuntary civil
commitment of mentally ill persons constitutes deprivation of liberty and
may be accomplished only in accordance with due process protections.” In
re Hutchinson, 454 A.2d 1008, 1010 (Pa. 1982); In re Chiumento, 688
A.2d 217, 220 (Pa. Super. 1997). “The very nature of civil
commitment . . . entails an extraordinary deprivation of liberty. . . . A
statute sanctioning such a drastic curtailment of the rights of citizens must
be narrowly, even grudgingly construed, in order to avoid deprivations of
liberty without due process of law.” In re Woodside, 699 A.2d 1293, 1298
(Pa. Super. 1997) (quoting In Re S.C., 547, 421 A.2d 853, 857 (Pa. Super.
1980)).
The legislative policy reflected in the Mental Health Procedures
Act is to require that strict conditions be satisfied before a court
order for commitment shall be issued. . . . Such a policy is in
accord with the recognition that commitment entails a massive
deprivation of liberty. Collateral consequences, too, may result
from the stigma of having been adjudged mentally ill. . . .
Numerous restrictions and routines are imposed in a mental
hospital . . . [and] are designed to aid and protect the mentally
ill persons, even those already in custody for other reasons, who
do not need such treatment should not be subjected to it.
Indeed, a person who is mistakenly committed to a mental
hospital might suffer serious psychological damage. For these
reasons, strict adherence to the statutory requirements is
to be compelled.
In re Ryan, 784 A.2d 803, 807 (Pa. Super 2001) (quoting Commonwealth
v. Hubert, 430 A.2d 1160, 1162 (Pa. 1981) (emphasis added). As we
ultimately held in In re Ryan, when an appellant’s due process rights under
the MHPA are violated, “we may vacate the certification for involuntary
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treatment pursuant to section []303, and direct that all records pertaining to
this matter be expunged.” In re Ryan, 784 A.2d at 808.
With these overriding concepts in mind, I observe the following.
Section 302 of the MHPA provides for the involuntary emergency
examination and treatment of a person not to exceed 120 hours if, upon
certification of a physician for examination, or upon a warrant issued by a
county administrator authorizing an examination, an examination conducted
within two hours of arrival by a physician shows that the person is severely
mentally disabled and in need of emergency treatment. 50 P.S. § 7302(a),
(b). Section 303 of the MHPA provides for extended involuntary emergency
treatment of any person who is being treated pursuant to section 302 for a
period not to exceed 20 days if, after an informal conference where the
patient is represented by counsel, a judge or mental health review officer
finds that the patient is severely mentally disabled and in need of continued
involuntary treatment, and so certifies. 50 P.S. § 7303(a)-(c). Indeed, the
person is entitled to the appointment of counsel. 50 P.S. § 7303(b). In
addition, section 303(c) requires the following:
(1) At the commencement of the informal conference, the judge
or the mental health review officer shall inform the person of
the nature of the proceedings. Information relevant to
whether the person is severely mentally disabled and in need of
treatment shall be reviewed, including the reasons that
continued involuntary treatment is considered necessary. Such
explanation shall be made by a physician who examined the
person and shall be in terms understandable to a layman. The
judge or mental health review officer may review any relevant
information even if it would be normally excluded under rules of
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evidence if he believes that such information is reliable. The
person or his representative shall have the right to ask questions
of the physician and of any other witnesses and to present any
relevant information. At the conclusion of the review, if the
judge or the review officer finds that the person is severely
mentally disabled and in need of continued involuntary
treatment, he shall so certify. Otherwise, he shall direct that the
facility director or his designee discharge the person.
50 P.S. 7303(c)(1).
Also of importance are the following provisions of the statute:
(d) CONTENTS OF CERTIFICATION. — A certification for
extended involuntary treatment shall be made in writing
upon a form adopted by the department and shall include:
(1) findings by the judge or mental health review
officer as to the reasons that extended involuntary
emergency treatment is necessary;
(2) a description of the treatment to be provided
together with an explanation of the adequacy and
appropriateness of such treatment, based upon the
information received at the hearing;
(3) any documents required by the provisions of
section 302;
(4) the application as filed pursuant to section
303(a);
(5) a statement that the person is represented by
counsel; and
(6) an explanation of the effect of the
certification, the person’s right to petition the
court for release under subsection (g), and the
continuing right to be represented by counsel.
(e) FILING AND SERVICE. — The certification shall be
filed with the director of the facility and a copy served on
the person, such other parties as the person requested to be
notified pursuant to section 302(c), and on counsel.
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(f) EFFECT OF CERTIFICATION. — Upon the filing and
service of a certification for extended involuntary
emergency treatment, the person may be given treatment in
an approved facility for a period not to exceed 20 days.
(g) PETITION TO COMMON PLEAS COURT. — In all cases in
which the hearing was conducted by a mental health review
officer, a person made subject to treatment pursuant to
this section shall have the right to petition the court of
common pleas for review of the certification. A hearing
shall be held within 72 hours after the petition is filed unless a
continuance is requested by the person’s counsel. The hearing
shall include a review of the certification and such evidence as
the court may receive or require. If the court determines that
further involuntary treatment is necessary and that the
procedures prescribed by this act have been followed, it shall
deny the petition. Otherwise, the person shall be discharged.
50 P.S. § 7303(d), (e), (f), (g) (emphases added).
Appellant asserts, with supporting citation to the record, that:
[O]n September 25, 2012, the day of the purported hearing
before the Mental Health Review Officer, he was approached by
a doctor and then a public defender and asked to sign certain
documents. ([N.T., 1/8/15, at 32-33]) However, based on the
prior recommendation of a head nurse, the Petitioner declined to
sign the documents. ([Id. at 33]) [Appellant] testified that he
never saw the doctor or public defender again, and shortly
thereafter that day he was released with no directives or
instructions for further treatment. (Ibid.) At the time of his
release, [Appellant] was never advised of the occurrence of a
Section 303 hearing, was never advised of the nature or
ramifications of such a hearing, did not appear at any such
hearing, did not stipulate to the Certification, and was not
provided with any documents indicating that such a hearing had
taken place or the results thereof. ([Id. at 33-35]) [Appellant]
was simply advised to gather his things and go home, and to
make contact with the Pitt authorities regarding any
requirements they might have for continuing as a student there.
([Id. at 33, 36, 43])
The WPIC Inpatient Discharge Summary confirmed that
[Appellant] was discharged on September 25, 2012, three days
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after his admission to the facility. ([Docket Entry 1, Exhibit 8])
The Summary further stated that [Appellant] “won his 303
hearing on 9/25/12 after police who petitioned his 302 did not
show up to hearing” and that he was “discharged to home with
his parents after winning his 303 hearing on 9/25/12 after police
did not show up for his 303 hearing.” The Summary ended with
the statement that [Appellant] had a “[s]uperficial L wrist
laceration - no treatment needed.” There was no indication in
the Summary that [Appellant] was to engage in any sort of out-
patient treatment of any kind.
Appellant’s Brief at 8-9.
In effect, Appellant claims there was no valid section 303 commitment
at all. He believes that “the 303 certification was merely a device for
accomplishing the immediate release of [Appellant] from the 302
commitment while assuaging the liability concerns of UPMC and WPIC.”
Appellant’s Brief at 19.6
Upon review of the certified record, I also question whether a valid 303
commitment was held and, if so, whether the certification was proper. At
the expungement hearing, Appellant testified that, although he spoke with a
public defender prior to his release from the hospital, he was unaware of any
303 commitment hearing held on September 25, 2012. N.T., 1/8/15, at 32-
33. All Appellant testified to was the fact that he “was told that there could
be a hearing.” Id. at 33 (emphasis added). In addition, my review of the
certified record reflects that, by happenstance, the public defender who
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6
Although not raised as an issue on appeal, it does seem peculiar, if not an
oxymoron, that “outpatient treatment” can constitute “extended involuntary
emergency treatment” under section 303.
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signed Appellant’s 303 certification was present at the court house at the
time of Appellant’s expungement hearing and was asked to testify. Id. at
15-20. When called into the courtroom, the public defender stated that he
did not “specifically recall [Appellant].” Id. at 16. However, upon reviewing
the 303 commitment form, he acknowledged that Appellant did not
attend the 303 hearing. Id.
Also, Sergeant Andrew Redman of the University of Pittsburgh Police
testified at Appellant’s expungement hearing. Sergeant Redman explained
that university police officers who file 302 petitions typically receive notices
of 303 commitment hearings. N.T., 1/8/15, at 54. However,
Sergeant Redman stated that he did not appear at a 303 commitment
hearing for Appellant on September 25, 2012, and could not recall whether
he was ever informed that such a hearing for Appellant was being held.
N.T., 1/8/15, at 54-55.
In addition, the certified record reflects that the 303 commitment
certification document specifies that Appellant did not attend the hearing.
The 303 commitment certification provides as follows:
AND NOW, this 25TH day of September, 2012, a hearing having
been held on a Petition of Extended involuntary Treatment of
[Appellant], Respondent, under Section 303 of the Mental Health
Procedures Act of 1976, as amended by Act 324 of 1978, the
Respondent having been present and represented by the Office
of Public Defender, upon consideration of the testimony of F.
DePietro, MD., a physician on the staff of WPIC, your Mental
Health Review Officer finds that the Respondent is severely
mentally disabled and presents a clear and present danger to
himself/herself or others; and certifies that he/she shall receive:
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PLEASE CHECK ONE
□ In Patient Treatment
□ Partial Hospitalization
□ Out-Patient Treatment [this box checked]
□ Combination of such treatment as the
director of the facility shall from time to
time determine.
which is the least restrictive appropriate treatment for the
Respondent at WPIC / Blair Co. MH Hospital, pursuant to the
provisions of the Mental Health Procedures Act, for a period not
to exceed Twenty (20) days from the date of this Certification.
_______Robert Zunich__________
MENTAL HEALTH REVIEW OFFICER
Patient Attended YES ___ NO_X_
Contested ______
Uncontested: Voluntary _____
Stipulation __X_ _____E.S.__________
Patient’s Counsel’s signature required
[Patient is A Resident of BLAIR County]
Docket Entry 1, Exhibit 7 (emphasis added).
Appellant did not sign the 303 commitment certification. Moreover,
the 303 commitment certification does not meet all of the requirements of
section 303(d). Of particular importance is the fact that there is no evidence
Appellant was ever notified of his right to appeal to the court of common
pleas under section 303(g) as required under section 303(d)(6). Likewise,
there is no evidence that Appellant was provided an explanation of his
continuing right to be represented by counsel as required under section
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303(d)(6). In addition, there is no evidence that Appellant was served a
copy of the section 303 commitment certification as mandated under section
303(e). These failures amount to a deprivation of Appellant’s due process
rights. Therefore, in my view, Appellant should not be found to have waived
his right to appeal.
A study of Appellant’s discharge summary from Western Psychiatric
Hospital causes further concern. Precisely, the following language from the
hospital’s discharge document results in my conclusion that Appellant was
not properly committed under section 303:
HOSPITAL COURSE
. . . He won his 303 hearing on 9/25/12 after police who
petitioned his 302 did not show up to hearing.
* * *
DISCHARGE PLANNING
[Appellant] discharged to home with his parents after winning
his 303 hearing on 9/25/12 after police did not show up for his
303 hearing.
Docket Entry 1, Exhibit 8 (emphases added).
Accordingly, because my review of the certified record reflects that the
dictates of the MHPA mandating a valid 303 certification were not met, I am
compelled to respectfully dissent and conclude that, because Appellant’s due
process rights were violated, fundamental fairness requires that his 303
certification records be expunged. Accordingly, I would vacate the
certification for involuntary treatment pursuant to section 303, and direct
that those records be expunged. In re Ryan, 784 A.2d at 807. Once that
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is accomplished, Appellant could then seek to expunge his section 302
commitment.
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In Re: Petition of: J.M.Y., Appeal of: J.M.Y.
Combined Opinion