J-A07016-19
2019 PA Super 212
THOMAS J. SEPHAKIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PENNSYLVANIA STATE POLICE : No. 2194 EDA 2018
BUREAU OF RECORDS AND :
IDENTIFICATION, MONTGOMERY :
COUNTY DEPARTMENT OF :
BEHAVIORAL :
HEALTH/DEVELOPMENTAL :
DISABILITIES, MCES, INC. :
Appeal from the Order Entered May 25, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2017-00794-59
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
OPINION BY DUBOW, J.: FILED JULY 10, 2019
Thomas J. Sephakis (“Appellant”) seeks review of the Order denying his
Petition to expunge his mental health commitment records and restore his
right to possess firearms pursuant to 18 Pa.C.S. §§ 6111.1 and 6105(f)(1)
and (j). After careful review, we affirm.
The trial court has provided a thorough recitation of the facts underlying
this case, which we need not repeat in detail. See Trial Ct Op., dated Aug.
17, 2018. In sum, on October 15, 2015, Appellant’s business partner reported
to the Pottsgrove Township Police Department that Appellant was suicidal.
Officer Robert Greenwood transported Appellant to a Montgomery County
Mental Health Facility, and Appellant’s parents confirmed that Appellant had
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* Former Justice specially assigned to the Superior Court.
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been talking about killing himself for the past few days. Appellant was
involuntarily committed to the hospital pursuant to Section 302 of the Mental
Health Procedures Act (“MHPA”), 50 P.S. § 7302.1 On October 19, 2015, four
days after the involuntary commitment, Appellant received notice and an
application submitted by the Montgomery County Emergency Services, Inc.,
(“County”) seeking to extend Appellant’s involuntary commitment pursuant to
Section 3032 for an additional 20 days’ inpatient treatment. A hearing was
scheduled for October 20, 2015.
At the scheduled hearing, Appellant, his privately-retained counsel, and
the solicitor for the county facility appeared before the Mental Health Review
Officer (“MHRO”). However, the solicitor informed the MHRO that Officer
Greenwood was unable to appear that day and requested a continuance of
two days. Rather than continue the hearing for two days, Appellant and his
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1 “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
by a physician within two hours of arrival shows that the person is severely
mentally disabled and in need of emergency treatment. 50 P.S. § 7302(a),
(b).” In Re: Petition of J.M.Y., 179 A.3d 1140, 1144 (Pa. Super. 2018) (en
banc), appeal granted, 194 A.3d 121 (Pa. 2018).
2 “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 except twenty 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).” J.M.Y.,
supra, at 1144.
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counsel negotiated a Stipulation whereby Appellant agreed that he was in
need of further treatment as alleged in the Section 303 application and to an
additional 20 days’ outpatient treatment in exchange for his immediate release
from the hospital.
The MHRO set forth the Stipulation in a “Certification by the Court for
Extended Involuntary Emergency Treatment-Section 303.” The Certification
indicated that failure to comply with the Order would result in Appellant’s
return to inpatient status. Appellant did not seek review of the Section 303
Certification. He complied with the Order and completed his outpatient
treatment.
Over one year later, on January 12, 2017, Appellant filed a Petition
seeking the expungement of his Sections 302 and 303 mental health
commitment records and the restoration of his right to possess firearms
pursuant to 18 Pa.C.S. §§ 6105(f)(1), (j), and 6111.1(g)(2),3 or permission
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3 Section 6111.1(g)(2) provides:
(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).
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to appeal nunc pro tunc from his 302 and 303 commitments. Appellant
asserted that insufficient evidence supported the Section 302 and 303
commitments and the commitments resulted from a violation of his due
process rights. On February 20, 2018, Appellant filed, with permission from
the court, an amended Petition asserting that he was proceeding pursuant to
the Mental Health Procedures Act generally and 18 Pa.C.S. § 6111.1. See
N.T., 2/20/18, at 104.
The court held a hearing on February 20, 2018, at which Appellant
testified, inter alia, that he and his attorney negotiated the agreement at the
scheduled Section 303 conference after Appellant agreed that he needed
continuing treatment, but did not want to stay in the hospital for even two
more days. He stated that he agreed to attend outpatient therapy for 20 days
so that he could be immediately discharged from the hospital. See N.T.,
2/20/18, at 121, 125-27. In response to extensive questioning by the court,
Appellant testified that he was aware of his rights, including his right to appeal
the Section 303 certification, as well as the loss of his right to possess
firearms. Id. at 134-38. The court ordered the parties to submit briefs.
After consideration of the parties’ briefs, the court denied the Petition
on May 25, 2018.
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18 Pa.C.S. § 6111.1(g)(2). A court has no jurisdiction under 18 Pa.C.S.
§6111.1(g) to review a commitment under Section 303. In re Jacobs, 15
A.3d 509 (Pa. Super. 2011).
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Appellant appealed. Both he and the trial court complied with Pa.R.A.P.
1925.
Appellant presents the following Statement of Questions Involved in his
brief:
1. Did the trial court commit an error of law by failing to apply the
holding in In re JMY, 179 A.3d 1140 ([Pa. Super.] 2018)[(en
banc)] (hereinafter JMY), to this case?
2. Did the trial court commit an error of law when it found that
the Section 303 Hearing Stipulation was an “Agreed Order” and
therefore [Appellant] was precluded altogether from appealing it
even if timeliness was not an issue?
3. Did the trial court commit an error of law when it ruled that
much of the evidence that was going to be presented was
irrelevant because the court had no intention of considering
[Appellant’s] argument that JMY controls the outcome of this
case, or in allowing [Appellant] to develop the case in his own
manner?[4]
Appellant’s Brief at 2-3.
Our standard of review is well-settled. We review the trial court’s denial
of a motion for expunction for an abuse of its discretion Commonwealth v.
Smerconish, 112 A.3d 1260, 1263 (Pa. Super. 2015) (citations omitted).
In his first issue, Appellant contends that the trial court could have
reviewed his Section 302 and 303 commitments based on the holding provided
in In Re: Petition of J.M.Y., 179 A.3d 1140 (Pa. Super. 2018), appeal
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4 The portion of Appellant’s Brief purporting to correspond to this third issue
attempts to assert an entirely different point. Accordingly, this issue as stated
is waived. However, we review the argument that was provided infra.
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granted, 194 A.3d 121 (Pa. 2018). In support, Appellant asserts a bare due
process argument, contending that “the stipulation was obtained through
coercion, specifically by ‘threatening’ petitioner with two more days of
inpatient incarceration unless he agreed to some amicable resolution.”
Appellant’s Brief at 12.5 Appellant’s argument is unavailing.
This Court provided the following concise overview of the applicable law
in J.M.Y.:
[P]revailing case law has interpreted 18 Pa.C.S. § 6111.1(g) as
providing no opportunity to obtain expungement of a mental
health record pursuant to a commitment under section 303 and
only allows for a trial court to review commitments under section
302. In re [Kevin] Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011).
In addition, an appellant seeking expungement 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.” Id.
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,
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5 Appellant also contends that the “the stipulation was coerced by the agency
creating the absence of the police officer by not subpoenaing him and then
using his absence as the basis for requesting continuance to get another two
days [of] incarceration out of petitioner[.]” Appellant’s Brief at 14. Appellant
does not support this accusation with citation to any evidence that
demonstrates that the agency intentionally created the officer’s absence in
order to keep Appellant under inpatient commitment, and our review of the
record reveals none.
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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., 280 Pa.Super.
539, 421 A.2d 853, 857 (1980)).
***
As we ultimately held in In re Ryan, [784 A.2d 803, 808 (Pa.
Super. 2001]), when an appellant's due process rights under the
MHPA are violated, “we may vacate the certification for
involuntary treatment pursuant to section [ ]303, and direct that
all records pertaining to this matter be expunged.” [Id.] See also
In re A.J.N., 144 A.3d 130, 139 (Pa. Super. 2016) (stating that
“case law uniformly mandates expungement and destruction of
records when the procedural, due process requirements of the
MPHA are violated during a commitment proceeding”). Thus, only
a section 303 commitment that provides adequate due process
may preclude an expungement of a section 302 commitment.
In Re: Petition of J.M.Y., 179 A.3d at 1143-44.
In J.M.Y, the University of Pittsburgh police brought the appellant to the
hospital after he attempted to harm himself after becoming intoxicated at a
fraternity party while taking prescribed medication for depression and anxiety.
He was committed under Section 302 and discharged from the hospital 4 days
later. He continued his studies of law enforcement at the University. In
November 2014, the appellant petitioned to vacate his Section 302
commitment and expunge his mental health commitment records. The trial
court denied his petition because his commitment had been extended by a
Section 303 certification.
On appeal, J.M.Y. asserted a due process violation because he had not
been aware that there had been a Section 303 hearing. This Court ultimately
agreed and concluded that the trial court erred in finding that the Section 303
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certification was valid. Id. at 1148. Sitting en banc, we observed that the
evidence showed that the appellant had been unaware that any Section 303
commitment hearing had been requested or held, and the certified record
reflected that Appellant did not attend the hearing. Id. at 1146. The Court
also observed that at Appellant’s expungement hearing, an officer from the
University police department testified that he did not appear at a Section 303
commitment hearing for the appellant and could not recall if he was ever
informed that such a hearing was to be held. Id. In addition, we noted that
the appellant had not signed the Section 303 certification, no evidence showed
the appellant knew of his right to appeal under Section 303(g), no evidence
showed the appellant knew of his continuing right to an attorney, and no
evidence showed that the appellant had been served a copy of the Section
303 commitment certification. The Court concluded that “[t]hese failures
amount to a deprivation of [the a]ppellant’s due process rights” and found the
Section 303 certification, thus, invalid. Id. at 1147.
J.M.Y. is factually and procedurally inapposite to Appellant’s case. As
the trial court here observed:
The testimony of [Appellant] on February 20, 2018, belies any
argument that his records should be expunged based on a denial
of due process in connection with his Section 303 agreement. He
was provided with the application for Section 303 treatment, as
was his counsel. He was ably represented by his private counsel
and was fully informed of the consequences of his stipulation and
extended treatment, negotiated by his lawyer and the mental
health department’s lawyer. . . .
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[Unlike in J.M.Y., supra,] in our case, [Appellant] testified that
he was fully aware that a 303 hearings was to take place, obtained
representation by private counsel of his choosing, went to the
hearing with his counsel, and then negotiated, through his private
counsel, to be released that day and undergo outpatient treatment
under court supervision by a mental health provider of his
choosing (his own mental health doctor with whom he had been
treating for six months) and, thus, avoided a further proceedings
that could have resulted in twenty days of inpatient treatment.
. . . In this case, the evidence shows that this court did not abuse
its discretion. This court applied the law that agreed or stipulated
orders are not appealable; recognized that [Appellant] was not
appealing nunc pro tunc and presented no evidence thereon;
applied the law that an agreed upon order cannot be attacked
except upon pleading and presenting clear and convincing
evidence of fraud[,] accident or mistake, which [Appellant] utterly
failed to do because there was none; and, applied the binding
precedent of In re Kevin Jacobs, supra.
It is clear, as his parents and business partner, along with police
officer concluded, that [Appellant] was in need of treatment when
he was first committed. Unlike the facts in J.M.Y., it is likewise
clear that [Appellant] was represented by competent counsel at
his section 303 hearings and was provided with the protections
required before he stipulated to receive extended outpatient
treatment [pursuant to Section 303]. Fundamental fairness was
not violated.
Trial Court Opinion, dated 8/17/18, at 15-17.
Our review of the record supports the trial court’s analysis. Appellant
received notice of the Section 303 hearing, attended the Section 303 hearing
with his privately-retained counsel, and acknowledged that his counsel had
apprised of him of his rights prior to entering into the Stipulation supporting
the Section 303 certification. Appellant was afforded, and fully availed
himself, of all due process required in connection with the Section 303
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commitment proceeding and subsequent certification.6 Accordingly, the trial
court did not err or abuse its discretion in finding the Section 303 certification
to be valid. This first issue, thus, warrants no relief.7
In the second issue, Appellant asserts that the trial court erred in
concluding that the Section 303 Stipulation precluded Appellant from
appealing, “even if timeliness were not indicate [sic] involved.” Appellant’s
Brief at 16-17. Because Appellant failed to develop this issue, we are unable
to provide meaningful review. This issue is, thus, waived.
Our Pennsylvania Rules of Appellate Procedure and our case law provide
the well-established requirements for preserving a claim for appellate review.
See Pa.R.A.P. 2111-2119 (discussing required content of appellate briefs and
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6 Despite knowing of his right to appeal the Section 303 certification, Appellant
did not partake in that process. Rather, he now attempts to argue that he
was coerced into entering the Stipulation so the Section 303 certification is
invalid and implies that review is, thus, now available. See Appellant’s Brief
at 12. We disagree. As noted above, the trial court found that Appellant was
not “coerced” into entering the stipulation. Moreover, nunc pro tunc relief is
permitted only when, inter alia, there was fraud or a breakdown in the
operations of the court. Vietri ex rel. Vietri v. Delaware Valley High
School, 63 A.3d 1281, 1284 (Pa. Super. 2013). Appellant’s entering into a
counseled stipulation does not represent fraud or a breakdown in the court’s
operation which would render his certification now appealable.
7 We are not persuaded by Appellant’s contention that he was unaware that
the certification had been granted because he did not receive a copy of the
Section 303 certification following the proceeding. He and his counsel were
at the hearing with the MHRO and fully aware when they entered the
Stipulation that he was agreeing to the extension of treatment that had been
requested pursuant to Section 303.
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addressing specific requirements of each subsection of brief on appeal). An
appellate court will address only those issues properly presented and
developed in an appellant’s brief as required by our Rules of Appellate
Procedure, Pa.R.A.P. 2101. Where defects in a brief “impede our ability to
conduct meaningful appellate review, we may dismiss the appeal entirely or
find certain issues to be waived.” Commonwealth v. Hardy, 918 A.2d 766,
771 (Pa. Super. 2007). See also Commonwealth v. Williams, 732 A.2d
1167, 1175 (Pa. 1999) (recognizing “the unavailability of relief based upon
undeveloped claims for which insufficient arguments are presented on
appeal”); Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super.
2013) (stating “[i]t is a well settled principle of appellate jurisprudence that
undeveloped claims are waived and unreviewable on appeal.” (citation
omitted)). As this Court has made clear, we “will not act as counsel and will
not develop arguments on behalf of an appellant.” Hardy, 918 A.2d at 771.
In support of this issue, Appellant presents a two-paragraph “argument”
comprised of conclusory, self-serving statements with no citation to the record
or legal authority, and no legal analysis. We are, thus, unable to provide
meaningful review. Accordingly, Appellant has waived this second issue.
In the argument purporting to correspond to his third issue, Appellant
avers that the court should not have relied on In re Kevin Jacobs, 15 A.3d
509 (Pa. Super. 2011), to find that expungement of his Section 303
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commitment was not available to him under 18 Pa.C.S. § 6111.1(g).8 He
boldly contends that Jacobs “should be overturned” because it wrongly
construed the relevant statutes when it concluded that a Section 303
commitment is a separate and distinct proceeding from a Section 302
commitment. Appellant’s Brief at 18. He avers that the Section 6111.1(g)
expungement provision should, thus, apply equally to allow review of both
Section 302 and 303 certifications. Id. Finally, without citation to any case
law or other legal authority, Appellant contends that applying his version of
the construction of the MHPA “eliminates the current conflict which has been
resulting in such varied panel decisions[.]” Id. Appellant’s argument is
without foundation and undeveloped. It is, therefore, waived.
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8 In In re Jacobs, supra, this Court ruled that 18 Pa.C.S. §6111.1(g)
provides no opportunity to obtain expungement of mental health records
pursuant to a commitment under Section 303. “This undoubtedly reflects the
fact that commitment under § 7303 indicates a more serious mental [health]
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. See also In re Keyes, 83 A.3d 1016 (Pa. Super.
2013) (applying Jacobs and noting that Section 6111.1(g) provides no
mechanism for expungement of a Section 303 extended involuntary
emergency treatment certified by a mental health review officer if the Section
303 ruling was not vacated by the court of common pleas.). Jacobs is binding
precedent. “This panel is not empowered to overrule another panel of the
Superior Court.” Commonwealth v. Beck, 78 A.3d 656, 659 (Pa. Super.
2013). See also Sorber v. American Motorists Insur. Co., 680 A.2d 881,
882 (Pa. Super. 1996) (observing that “[a]s long as the [Superior Court]
decision has not been overturned by our Supreme Court, it remains binding
precedent”).
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Appellant does not provide any indication of what authority would allow
this panel to “overturn” a prior Superior Court Opinion. Appellant also fails to
cite any authority pertaining to statutory construction that would enable this
Court to consider his alternative application of Section 6111.1(g). Finally, he
fails to provide any case citations in support of his claim that there is a “current
conflict” in Superior Court decisions regarding the application of the
expungement statute and review of Section 302 and 303 commitments.
These glaring omissions render this issue waived. See Pa.R.A.P. 2111,
2119(a) (requiring that an appellant provide argument in his brief with citation
to “pertinent” authority); Hardy, supra (where defects in a brief prevent
meaningful review, the issue may be found waived).
Having concluded Appellant’s issues are without merit and waived, we
affirm the trial court’s Order denying Appellant’s Petition for expungement of
his mental health commitment records.
Order affirmed.
President Judge Emeritus Stevens joins the Opinion.
Judge Olson concurs in result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/10/19
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