In Re: B. W., Appeal of: Blair Dept Human Services ( 2021 )

[J-94-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: B.W. . No. 14 WAP 2020
Appeal from the Order of the
APPEAL OF: BLAIR COUNTY Superior Court entered November 1,
DEPARTMENT OF HUMAN SERVICES 2019 at No. 289 WDA 2019,
reversing the Order of the Court of
Common Pleas of Blair County
entered February 13, 2019 at No.
2018 GN 2882, and remanding.
ARGUED: October 22, 2020
OPINION
JUSTICE MUNDY DECIDED: MAY 18, 2021
In this appeal by allowance, we consider whether the Superior Court erred in
ordering the expungement and destruction of the medical records of the Section 302
involuntary emergency examination and treatment of Appellee, B.W., on the basis that
the Section 302 petition was insufficient to prove B.W. was aclear and present danger to
others. We conclude the Superior Court erred as the physicians' records contained
sufficient facts to prove B.W. made a threat to harm another person and acted in
furtherance of that threat by developing aplan to harm that person, which the physicians
found credible. Accordingly, we reverse the Superior Court's order.
I. PENNSYLVANIA'S MENTAL HEALTH PROCEDURES ACT AND EXPUNGEMENT
OF INVOLUNTARY COMMITMENT RECORDS
The legislature enacted Pennsylvania's Mental Health Procedures Act (MHPA), 50
P.S. §§ 7101-7503, to establish procedures "to assure the availability of adequate
treatment to persons who are mentally ill." 50 P.S. §7102. The MHPA's provisions "shall
be interpreted in conformity with the principles of due process to make voluntary and
involuntary treatment available where the need is great and its absence could result in
serious harm to the mentally ill person or to others." Id. One treatment option the MHPA
governs is involuntary emergency examination and treatment, commonly referred to as a
"302 commitment." See 50 P.S. §7302. Section 302 of the MHPA provides that an
involuntary emergency examination of a person may occur upon a physician's
certification. 50 P.S. §7302(b). If the examining physician determines "that the person
is severely mentally disabled and in need of emergency treatment, treatment shall be
begun immediately" and may continue for up to 120 hours. 50 P.S. §7302(b), (d); see
also 50 P.S. §7301(a) (providing aperson who is "severely mentally disabled and in need
of treatment" may be subject to "involuntary emergency examination and treatment").
Section 301 further provides that a person is "severely mentally disabled" when
mental illness causes the person's "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[.]" 50 P.S. §7301(a). Section 301(b)(1) lists the following criteria for showing a
person is aclear and present danger of harm to others:
(b) Determination of Clear and Present Danger. --(1) Clear
and present danger to others shall be shown by establishing
that within the past 30 days the person has inflicted or
attempted to inflict serious bodily harm on another and that
there is a reasonable probability that such conduct will be
repeated. If, however, the person has been found
incompetent to be tried or has been acquitted by reason of
lack of criminal responsibility on charges arising from conduct
involving infliction of or attempt to inflict substantial bodily
harm on another, such 30-day limitation shall not apply so
long as an application for examination and treatment is filed
within 30 days after the date of such determination or verdict.
In such case, a clear and present danger to others may be
[J-94-2020] -2
shown by establishing that the conduct charged in the criminal
proceeding did occur, and that there is a reasonable
probability that such conduct will be repeated. For the
purpose of this section, aclear and present danger of harm to
others may be demonstrated by proof that the person has
made threats of harm and has committed acts in furtherance
of the threat to commit harm.
50 P.S. §7301(b)(1). 1
Section 301(b)(2) contains the criteria for determining that a person is a danger to
himself or herself.-
(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, aclear 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.
[J-94-2020] -3
The Pennsylvania Uniform Firearms Act of 1995 (UFA), 18 Pa.C.S. §§ 6101-6128,
makes it unlawful for aperson who has been involuntarily committed under Section 302
to "possess, use, control, sell, transfer or manufacture" afirearm or to obtain alicense to
conduct any of those activities. 18 Pa.C.S. §6105(a)(1), (c)(4). However, the UFA
provides two ways for the subject of a302 commitment to obtain relief from the Section
6105(a)(1) firearm restrictions. The one at issue in this case is a court-ordered
expungement of the 302 commitment record under Section 6111.1(g)(2), which provides:
(g) Review by court.—
(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).
18 Pa.C.S. §6111.1(g)(2). 2
This Court clarified the appropriate review of a Section 6111.1(g)(2) petition to
expunge a 302 commitment record based on the sufficiency of the evidence to support
the 302 commitment in In re Vencil, 152 A.3d 235 (Pa. 2017):
50 P.S. §7301(b)(2).
2 The second means for the subject of a302 commitment to obtain relief from the Section
6105(a)(1) firearms restrictions is to petition the trial court to grant relief based on afinding
that "the applicant may possess a firearm without risk to the applicant or any other
person." 18 Pa.C.S. §6105(f)(1).
[J-94-2020] -4
under section 6111.1(g)(2), a challenge to the sufficiency of
the evidence to support a 302 commitment presents a pure
question of law, and the court's sole concern is whether,
based on the findings recorded by the physician and the
information he or she relied upon in arriving at those findings,
the precise, legislatively-defined prerequisites for a 302
commitment have been satisfied and are supported by a
preponderance of the evidence. We emphasize that the trial
court's review is limited to the findings recorded by the
physician and the information he or she relied upon in arriving
at those findings, and requires deference to the physician, as
the original factfinder, as the physician examined and
evaluated the individual in the first instance, was able to
observe his or her demeanor, and has particularized training,
knowledge and experience regarding whether a 302
commitment is medically necessary.
Vencil, 152 A.3d at 246 (rejecting de novo review subject to clear and convincing burden
of proof for Section 6111.1(g)(2) petitions).
II. FACTUAL AND PROCEDURAL HISTORY
With this legal framework in mind, we set forth the facts of this case. On
September 6, 2018, B.W. went to Altoona Family Physicians, his primary care provider's
office. The office visit notes show that on September 6, 2018, Dr. Joseph Sumereau was
the provider who treated B.W., while Dr. Amanda Cattol was B.W.'s primary care
physician. Office Visit Notes, 9/6/18. The physician's progress notes of the office visit,
signed by Dr. Terry Ruhl, indicate the reason for B.W.'s visit was "anxiety" and the primary
diagnosis was "agitation." Id. Dr. Ruhl elaborated:
Discussed with Dr. Sumereau and Jimmy.
Anxiety and anger feelings. Making credible threats of
violence against a co-worker but is here for help. Girlfriend
has concerns for his safety.
Crisis here now - expect they will recommend inpatient
treatment, involuntary if necessary. UPMC police here for
safety, but he has made no threats against staff.
Id. (note entered 9/10/18 regarding 9/6/18 visit).
[J-94-2020] -5
Indeed, on September 6, 2018, Dr. Sumereau submitted aSection 302 application
for involuntary emergency examination and treatment for B.W. Appl. for Involuntary
Emergency Examination &Treatment, 9/6/18, at 1. Dr. Sumereau completed Part Iof the
application as "the person who believes the patient is in need of treatment." /d. Dr.
Sumereau selected the pre-printed option on the form indicating he believed B.W. was
"severely mentally disabled" because he posed aclear and present danger to others. Id.
at 2 (marking the box on the form largely reciting the Section 301(b)(1) criteria). Dr.
Sumereau completed the narrative portion of the 302 application with adescription of the
details that supported his belief, as follows:
I, Dr. Sumereau, was present while the patient stated
that he would strangle another person to death. He then gave
the name of the intended victim.
Patient stated that he was not sure when or where he
would perform this act, but he would do it the next time he saw
the person.
Id. at 3. As a result, Dr. Sumereau certified that B.W. was in need of involuntary
examination and treatment, and he requested that UPMC Altoona Hospital examine B.W.
to determine his need for treatment. Id.
B.W. was transported to UPMC Altoona, where the examining physician, Dr.
Mercedes Boggs, noted the findings of her examination of [B.W.] were that "[B.W.] is
homicidal toward his coworker and admits to stating that he would strangle him. [B.W.]
very angry and agitated, danger to others. Not receptive to voluntary admission." Id. at
7. She noted the treatment needed was "[f]urther evaluation and assessment, therapy
and medication." Id. She certified B.W. was "severely mentally disabled and in need of
treatment" and recommended his admission to afacility for up to 120 hours of treatment.
Id. Accordingly, B.W. was involuntarily committed at the Altoona Hospital Mental Health
Unit, and he was released after 72 hours. Pet. to Expunge, 10/2/18, at ¶¶ 2, 10.
[J-94-2020] -6
On October 2, 2018, B.W. filed apetition to expunge mental health record. In the
petition, B.W. averred "there was no basis to the involuntary commitment as he was not
homicidal and did not express any homicidal ideations." Id. at ¶ 11. He claimed he had
no intent to carry out his threat and characterized his statements to Dr. Sumereau as
"blowing off steam." Id. at ¶8. He asserted the record of his involuntary commitment
impaired his employment opportunities and his ability to carry a firearm. Id. at ¶ 13.
Accordingly, he requested relief in the form of a trial court order directing the Altoona
Hospital and the Pennsylvania State Police (PSP) to expunge the records of his
September 6, 2018 involuntary commitment. Id. at ¶A. Even though the petition did not
expressly cite Section 6111.1(g)(2), it is clear from the request for relief that B.W.
requested aSection 6111.1(g)(2) review of his 302 commitment.
On January 4, 2019, the trial court held a hearing on the petition to expunge. At
the hearing, the PSP introduced the 302 commitment record into evidence, and B.W.
introduced the Altoona Family Physicians' office visit notes. N.T., 1/4/19, at 2, 23.
Additionally, the trial court heard the testimony of B.W. and his girlfriend despite the
objection of the Blair County Department of Social Services (DSS) that the testimony was
not relevant to the sufficiency of the evidence according to Vencil. Id. at 2-3. 3 Neither
DSS nor the PSP presented any testimony. Id. at 26. At the conclusion of the hearing,
the trial court took the matter under advisement pending the transcript of the hearing and
the parties' memoranda of law. Id.
On February 13, 2019, the trial court issued an order denying B.W.'s petition to
expunge. Trial Ct. Order, 2/13/19. In its accompanying opinion, the court identified the
issue as whether B.W. committed an act in furtherance of his threat to strangle his
3 As this testimony is irrelevant to aSection 6111.1(g)(2) review under Vencil, we do not
consider it. See Vencil, 152 A.3d at 238-39 n.3, 244.
[J-94-2020] -7
coworker. Trial Ct. Op., 2/13/19, at 16. The court found it was undisputed that B.W. made
threats to harm his coworker. Id. at 15. The trial court stated the "act in furtherance"
inquiry was a fact-specific determination made on a case-by-case basis. Id. at 6.
Addressing whether B.W. acted in furtherance of his threat, the court initially noted that
B.W. did not communicate by any means his threat to his coworker or a third party; he
did not engage in a physical altercation with his coworker; and he did not search the
internet for ways to strangle or injure another person. Id. at 15. Nonetheless, the trial
court concluded that Dr. Sumereau's description of B.W.'s statement that he would
strangle his coworker "the next time he saw this person" was sufficient to support the
conclusion that B.W. was aclear and present danger to others. Id. It explained that under
Vencil, "[w]e must give deference to the physician, as the original factfinder, as the
physician examined and evaluated [B.W.], and was able to observe his demeanor." Id.
Applying Vencil, the court found "that the evidence known by the physician at the time,
as contained in the contemporaneously-created record, supports the conclusion that
[B.W.] presented aclear and present danger to others, requiring a 302 commitment." Id.
Accordingly, the trial court denied B.W.'s petition to expunge. B.W. appealed to the
Superior Court.
In a2-1 unpublished non-precedential memorandum decision, the Superior Court
reversed the trial court order denying B.W.'s petition to expunge. In re B.W., No. 289
WDA 2019, 2019 WL 5682614, at *6 (Pa. Super. Nov. 1, 2019). The Superior Court
concluded that the involuntary commitment petition did not contain sufficient facts to prove
B.W. took an "act in furtherance" of his threat to kill his coworker. Id. at *5. The court
viewed B.W.'s statement that he intended to strangle his coworker the next time he saw
him as abare threat without an accompanying act in furtherance. Id. at *6.
[J-94-2020] -8
In support of its decision, the Superior Court analogized this case to its
unpublished decision in Interest of K.M., No. 1677 MDA 2018, 2019 WL 3243142 (Pa.
Super. July 17, 2019). 4 Id. at *5-6. In K.M., the involuntary commitment petition stated
that K.M. told medical staff that he would not live long enough for his medical bill to matter,
that he would end his life when his medical debt was too much, and that "he could take a
350 mag [sic] to his head and pull the trigger & kill people with no care." K.M., 2019 WL
3243142, at *1. The K.M. Court held these statements were insufficient to support the
involuntary commitment because "besides examples of threatening thoughts and
statements, the record contains no evidence of any act undertaken by [K.M.] in
furtherance of his threat to harm himself or others." Id. at *5. Therefore, the court
concluded the records of K.M.'s involuntary commitment had to be expunged and
destroyed. Id.
In this case, the Superior Court rejected DHS and PSP's argument that K.M. was
distinguishable because B.W. identified his intended victim and stated how he would carry
out the threat. In re B. W, 2019 WL 5682614, at *6. The court explained that "the threat
itself, without more, does not constitute an act in furtherance of the threat." Id.Accordingly, the Superior Court reversed the trial court and ordered that the records of
B.W.'s involuntary commitment must be expunged and destroyed. Id.Judge Lazarus filed a dissenting memorandum in which she opined that proof of
an act in furtherance of the threat to commit harm was not necessary for a Section 302
involuntary commitment, and even if it was necessary, applying the Vencil standard to the
physicians' statements showed the evidence was sufficient to support B.W.'s involuntary
commitment. Id. (Lazarus, J., dissenting). Judge Lazarus explained that Section
4 The Superior Court noted that its unpublished, non-precedential decisions filed after
May 1, 2019 may be relied on for their persuasive value. In re B. W., 2019 WL 5682614,
at *6 n.2 (citing Pa.R.A.P. 126(b)).
[J-94-2020] -9
301(b)(1) does not necessarily require proof of an act in furtherance because it states
that athreat and an act in furtherance may, not must, demonstrate aclear and present
danger of harm to others. Id. at *9 (relying on Commonwealth v. Helms, 506 A.2d 1384,
1388 (Pa. Super. 1986)). Further, Judge Lazarus found the evidence was sufficient to
prove B.W. committed an act in furtherance of his threat to his coworker because in his
statements "he identified aco-worker as his target and had chosen strangulation as the
means by which he intended to kill that target[, and] physicians found B.W.'s threats
credible." Id. at *10. Applying Vencil, Judge Lazarus concluded that the evidence known
by the physicians at the time of the involuntary commitment was sufficient to support their
conclusions that an involuntary commitment was medically necessary. Id.
III. ISSUE AND STANDARD OF REVIEW
This Court granted DSS's petition for allowance of appeal to consider the following
issue:
Whether the development of aplan satisfies the requirement
for an act in furtherance of a threat to kill a co-worker for
purposes of an involuntary commitment under § 302 of the
Mental Health Procedures Act?
In re B. W., 235 A.3d 272 (Pa. 2020) (per curiam). 5
Generally, this issue presents aquestion of law, over which our standard of review
is de novo and our scope of review is plenary. Vencil, 152 A.3d at 241. Additionally,
given that we are reviewing aSection 6111.1(g)(2) expungement ruling, we are limited to
considering the evidence the physician knew at the time of the 302 commitment. Id. at
242. Further, as this issue presents aquestion of statutory interpretation, we note that in
construing astatute, we must give effect to the legislature's intent and give effect to all of
the statute's provisions. 1Pa.C.S. § 1921(a). The plain language of the statute is the
5 PSP filed anotice of joinder to DSS's petition for allowance of appeal, and following the
grant of the petition, our prothonotary deemed both DSS and PSP as the appellants.
[J-94-2020] -10
best indication of the legislature's intent. Crown Castle NG E. LLC v. Pa. Pub. Util.
Comm'n, 234 A.3d 665, 674 (Pa. 2020). To discern the plain meaning of a statute, we
consider the operative statutory language in context and give words and phrases their
common and approved usage. Id. Courts must give effect to a clear and unambiguous
statute and cannot disregard the statute's plain meaning to implement its objectives. /d.
"Only if the statute is ambiguous, and not explicit, do we resort to other means of
discerning legislative intent." Matter of Private Sale of Prop. by Millcreek Twp. Sch. Dist.,
185 A.3d 282, 291 (Pa. 2018).
IV. ACTS IN FURTHERANCE OF THE THREAT TO COMMIT HARM TO OTHERS
A. PARTIES' ARGUMENTS
The PSP argues that the plain language of Section 301(b)(1) does not require the
showing of an "act in furtherance" for all involuntary commitments based on a clear and
present danger to others. PSP's Brief at 13. Echoing Judge Lazarus's dissent, the PSP
stresses that the operative sentence of Section 301(b)(1) states that "a clear and present
danger of harm to others may be demonstrated by proof that the person has made threats
of harm and has committed acts in furtherance of the threat to commit harm." Id. (quoting
50 P.S. §7301(b)(1) (emphasis added)). 6 The Superior Court erred in holding that acts
in furtherance are required in all cases, according to the PSP, because such an
interpretation renders the legislature's use of the word "may" mere surplusage. Id. at 14
(citing 1 Pa.C.S. § 1921(b); Helms, 506 A.2d at 1388 (observing the "threats and acts"
formula may, not must, be used to demonstrate a clear and present danger)). Instead,
the PSP contends that B.W.'s plan to strangle his coworker established a "clear and
present danger" to another person, as three examining physicians found. Id. at 15.
6 DSS does not pursue this argument in its brief.
[J-94-2020] -11
Moreover, DSS and the PSP contend we should reverse the Superior Court's
decision because B.W.'s development and completion of adetailed plan to strangle his
coworker to death the next time he saw him constitutes an "act in furtherance" under
Section 301. DSS's Brief at 6; PSP's Brief at 5. DSS points to court cases construing
the "act in furtherance" requirement of the Section 301 criteria for showing aperson is a
clear and present danger to others, 50 P. S. §301(b)(1), or aclear and present danger to
himself or herself, 50 P.S. §301(b)(2)(i)-(ii), as consisting of both tangible and intangible
actions. DSS's Brief at 8-9. DSS argues that the Superior Court's holding that B.W.'s
complete plan to harm another did not constitute an act in furtherance is inconsistent with
this precedent and the plain language of Section 301, which DSS interprets as requiring
only that "the subject of an involuntary commitment will have done something to advance
the threat of harm to himself or others." Id. at 10. The PSP contends that B.W.'s "specific
and detailed plan itself was a sufficient act in furtherance to justify the commitment,
particularly when the [Superior Court] was required to give deference to the committing
physician pursuant to this Court's decision in [Vend[)." PSP's Brief at 7. Emphasizing
the deference courts must give to the examining physicians under Vencil, the PSP
stresses that the three physicians in this case deemed B.W.'s homicidal threats credible
and warranting involuntary examination and treatment. Id. at 11.
DSS maintains the plain language of Section 301 does not require the act in
furtherance to be overt or tangible for two reasons. DSS's Brief at 11-13. First, DSS
notes that unlike the Pennsylvania Crimes Code's requirement for proof of an "overt act
in pursuance" of a conspiracy, 18 Pa.C.S. §903(e), Section 301(b)(1) requires "acts in
furtherance of the threat." Id. at 12. The lack of an adjective modifying "acts in
furtherance" in Section 301, according to DSS, suggests the legislature knowingly
avoided the requirement of an overt act. Id. (citing Bowers v. Pa. Labor Relations Bd.,
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167 A.2d 480, 487 (Pa. 1961) (stating similar language in different statutes requires the
same construction)).
Second, DSS posits that requiring an overt act would conflict with the stated intent
of the MHPA to protect the safety of the patient and others. Id. at 12-13. DSS compares
this case to In re Woodside, 699 A.2d 1293 (Pa. Super. 1997), in which the court
concluded that a person committed an act in furtherance of athreat when he purchased
arifle scope after stating he "might as well get arifle and scope and get rid of my problem.
The problem being my soon to be ex-wife." Woodside, 699 A.2d at 1294. DSS contends
the only difference between this case and Woodside is that the plan in Woodside involved
a weapon while the plan in this case involved the use of B.W.'s hands, which DSS
maintains is "a distinction without a difference that would produce an absurd result if
allowed." DSS's Brief at 13. Further, DSS analogizes this case to In re R.F., 914 A.2d
907 (Pa. Super. 2006), which found that the patient's internet research of painless ways
to commit suicide was an act in furtherance of the threat to harm himself. R.F., 914 A.2d
at 915. DSS emphasizes that "B.W. made athreat and had a plan that only needed the
appearance of the intended victim for completion." DSS's Brief at 14; see also PSP's
Brief at 9 (analogizing this case to R.F. and arguing the totality of the circumstances
coupled with deference to the physicians' findings "coalesce into sufficient evidence").
Similarly, the PSP argues the interpretation that a specific plan constitutes an act
in furtherance is necessary to avoid the absurd result that aphysician cannot involuntarily
commit a person who has articulated a clear and detailed plan until the person takes a
step to carry out the plan. PSP's Brief at 12 (citing 1 Pa.C.S. § 1922(1) (stating "the
General Assembly does not intend a result that is absurd, impossible of execution or
unreasonable. "). The PSP states this result is inconsistent with the legislative intent of
the MHPA, which is to help those in crisis and protect the public. Id. at 13. The PSP also
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notes that its interpretation of Section 301 does not render mere threats sufficient to
support an involuntary commitment, but it "gives aphysician, who in their expert medical
opinion believes that a threat that is accompanied with specific details and planning is
credible, the ability to meaningfully act." Id. at 12-13 n.3. Accordingly, DSS and the PSP
maintain we should reverse the Superior Court's decision. DSS's Brief at 14; PSP's Brief
at 16.
In contrast, B.W. argues we should affirm the Superior Court. B.W. agrees with
DSS and the PSP that the "development of aplan could satisfy the act in furtherance of
athreat to kill aco-worker for purposes of an involuntary commitment under §302 of the
[MHPA]," but B.W. argues the evidence did not show that B.W. had developed aplan to
harm his coworker. B.W.'s Brief at 5. To support his position that he did not have aplan,
B.W. relies exclusively on facts developed at the January 4, 2019 trial court hearing and
characterizes his statements to the physicians as "blowing off steam" and "just words."
Id. at 6. Like the Superior Court majority, B.W. relies principally on K.M. in support of his
position that "[m]aking a threat to the doctor concerning another and indicating that he
would carry out said threat next time he saw the co-worker is not aspecific plan, nor an
explicit plan of how he would harm the co-worker." Id. at 8. Ultimately, B.W. "agrees if
there were an exact plan, then that could be considered an act in furtherance[,]" but there
was no such plan in this case. Id. at 10. Accordingly, B.W. maintains we should affirm
the Superior Court's decision that the record of his involuntary commitment should be
expunged. Id. at 10-11.
B. ANALYSIS
We first address the threshold issue the PSP raises of whether Section 301(b)(1)
requires proof of an act in furtherance. Based on the plain language of Section 301(b)(1),
we conclude that when an involuntary commitment is based on the "threat and act"
[J-94-2020] -14
formulation, both a threat and an act in furtherance must be proven. Section 301(a)
provides that a person may be involuntarily examined and committed if the person is
severely mentally disabled, meaning the person is "a clear and present danger of harm
to others or to himself." 50 P.S. §7301(a). Section 301(b)(1) lists the criteria for
determining aperson is aclear and present danger to others as follows:
(b) Determination of Clear and Present Danger. --(1) Clear
and present danger to others shall be shown by establishing
that within the past 30 days the person has inflicted or
attempted to inflict serious bodily harm on another and that
there is a reasonable probability that such conduct will be
repeated. If, however, the person has been found
incompetent to be tried or has been acquitted by reason of
lack of criminal responsibility on charges arising from conduct
involving infliction of or attempt to inflict substantial bodily
harm on another, such 30-day limitation shall not apply so
long as an application for examination and treatment is filed
within 30 days after the date of such determination or verdict.
In such case, a clear and present danger to others may be
shown by establishing that the conduct charged in the criminal
proceeding did occur, and that there is a reasonable
probability that such conduct will be repeated. For the purpose
of this section, aclear and present danger of harm to others
may be demonstrated by proof that the person has made
threats of harm and has committed acts in furtherance of the
threat to commit harm.
50 P.S. §7301(b)(1). From a plain reading of Section 301(b)(1), there are three
alternative formulations of a clear and present danger to others: (1) the person has
inflicted, or attempted to inflict, serious bodily harm on another in the past 30 days and
there is a reasonable probability the person will repeat that conduct; (2) the person has
been found incompetent to stand trial or acquitted due to lack of criminal responsibility of
charges of inflicting, or attempting to inflict, serious bodily harm on another, and the
petition establishes the charged conduct occurred and aprobability it will be repeated; or
(3) "the person has made threats of harm and has committed acts in furtherance of the
threat to commit harm." Id.
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Relying on Helms, the PSP, like Judge Lazarus's dissenting memorandum,
contend that an act in furtherance is not required because the last sentence of Section
301(b)(1) uses the word "may" instead of "shall" or "must." PSP's Brief at 14 (quoting In
re B.W., 2019 WL 5682614, at *9 (Lazarus, J., dissenting)). This reliance on Helms,
however, is misplaced because Helms recognized Section 301(b)(1) sets forth alternative
ways to show a person is aclear and present danger to others. In Helms, Helms killed
his next-door neighbor, but was acquitted at his criminal trial based on the finding of a
lack of criminal responsibility under MHPA Section 404, 50 P.S. §7404. Helms, 506 A.2d
at 1386. However, the trial court also found Helms was severely mentally disabled and
committed him involuntarily to astate hospital under MHPA Sections 304(g)(2) and 305.
Id. Helms was involuntarily recommitted four times, and he challenged the sufficiency of
his fourth recommitment on the grounds that the petition did not show he was a"clear
and present danger" to others. Id. at 1386-87. The Superior Court concluded that the
Section 301(b)(1) formulation of "clear and present danger" to others contained
alternative methods to make such a showing. Id. at 1388. Specifically, the court
explained that the last sentence of Section 301(b)(1), containing the "'threats and acts'
formula may, not must, be used to demonstrate dangerousness." Id. (emphasis in
original). The court based its statement that "threats and acts" are not always required
on the preceding portion of Section 301(b)(1), which "contains an alternative method for
showing clear and present danger which applies specifically to insanity acquittees who
are the subjects of petitions for involuntary commitment[,]" namely that "(1) the conduct
that led to the criminal proceedings occurred; and (2) that there is areasonable probability
that it will occur again." Id. Significantly, the court did not offer afurther interpretation of
the "threats and acts" requirement or opine that acts in furtherance were not required
under that requirement. Instead, the court held that the record showed a reasonable
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probability that Helms would act violently again without treatment, which met the Section
301(b)(1) "insanity acquittees" formulation of clear and present danger to others. Id. at
1390. Thus, Helms is consistent with our interpretation that Section 301(b)(1) contains
three alternative ways to show aperson is aclear and present danger to others.
Further, we conclude that when the involuntary commitment is based upon the
third means to show a clear and present danger in Section 301(b)(1), i.e., the "threats
and acts" formulation, both athreat and an act in furtherance must be proven. This is
clear from the plain language of the pertinent portion of Section 301(b)(1), which states
"[f]or the purpose of this section, a clear and present danger of harm to others may be
demonstrated by proof that the person has made threats of harm and has committed acts
in furtherance of the threat to commit harm." 50 P.S. §7301(b)(1).
First, reading Section 301(b)(1) as awhole, we disagree with the significance the
PSP attaches to its use of the word "may" because such areading ignores the context of
Section 301(b)(1). The first sentence of Section 301(b)(1) provides that a "clear and
present danger to others shall be shown" by proving serious bodily harm and a
reasonable probability of recurrence. Id. (emphasis added). Its third sentence then
provides that "a clear and present danger to others may be shown" for those who are
incompetent to stand trial or those who have been acquitted for a lack of responsibility.
Id. (emphasis added). Lastly, its fourth sentence provides that "a clear and present
danger of harm to others may be demonstrated by proof' of threats of harm and acts in
furtherance. Id. (emphasis added). Viewing Section 301(b)(1) as awhole, it is clear the
legislature used the word "may" to express alternative possibilities for showing a clear
and present danger if the serious bodily harm formulation cannot be met. See Vencil,
152 A.3d at 244 ("[i]n determining legislative intent, '[s]ections of astatute must be read
together and in conjunction with each other, and construed with reference to the entire
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statute."') (quoting Bd. of Revision of Taxes, City of Phila. v. City of Phila., 4 A.3d 610,
622 (Pa. 2010)). Our interpretation is consistent with the Helms Court's conclusion that
Section 301(b)(1) contains alternative means to show that aperson is aclear and present
danger to others. See Helms, 506 A.2d at 1388.
Second, Section 301(b)(1) is clear that the proof required to meet the "threats and
acts" formulation is "proof that the person has made threats of harm and has committed
acts in furtherance of the threat to commit harm." 50 P.S. §7301(b)(1) (emphasis added).
The use of the conjunction "and" to connect threats and acts in furtherance makes it clear
that both are required elements of proof. The PSP's disjunctive reading that aclear and
present danger can be shown by threats alone is inconsistent with the statutory language.
Additionally, the phrasing "has committed acts in furtherance of the threat to commit
harm" is clearly referring back to the previous phrase "the person has made threats of
harm," showing that the two phrases are connected and dependent, not independent
requirements. Id. Finally, the PSP's reading of this sentence as requiring a showing of
only athreat of harm would render meaningless and superfluous the acts in furtherance
language, which is contrary to the basic tenants of statutory construction. See 1Pa.C.S.
§ 1921(a) (requiring courts to aim to give effect to all of a statute's provisions);
Commonwealth v. Ostrosky, 909 A.2d 1224, 1232 (Pa. 2006) (noting the legislature is
"presumed not to intend any statutory language to exist as mere surplusage").
Accordingly, we conclude that when an involuntary commitment is based on Section
301(b)(1)'s threats and acts formulation, both a threat of harm to others and an act in
furtherance of that threat must be proven.'
7 To be clear, we do not hold that under Section 301(b)(1) an act in furtherance of athreat
to harm another person must be shown for all involuntary commitments. Accord Helms,
506 A.2d at 1388.
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Having concluded that proof of an act in furtherance of the threat to commit harm
was necessary, we now turn to the issue of whether B.W.'s communication of his plan to
strangle his coworker the next time he saw him was sufficient to prove B.W. committed
an act in furtherance. We conclude that the articulation of a specific plan to harm an
identified target that is deemed credible by medical professionals is sufficient to prove an
act in furtherance of the threat to commit harm.
As noted above, Section 301 contains criteria for when a person is a clear and
present danger to oneself or another. Section 301(b)(2)(ii) contains aparallel requirement
for an involuntary commitment based on athreat to commit suicide and acts in furtherance
of the threat. 50 P.S. §7301(b)(2)(ii). The Superior Court has held that a person who
has developed acomplete plan, or taken steps to develop aplan, to commit suicide "has
committed acts which are in furtherance of the threat to commit suicide[.]" See id. In
Appeal of H.D., 698 A.2d 90 (Pa. Super. 1997), the court concluded H.D.'s plan to jump
off a bridge was sufficient to support her 302 commitment and rejected H.D.'s
characterization of her statement as a mere suicidal "idea" that did not establish intent.
H.D., 698 A.2d at 94 n.4. The court explained "[a]fter athorough review of the record, we
refuse to second-guess the conclusion of the emergency medical and mental health
professionals that H.D. presented aclear and present danger of harm to herself." Id.
Moreover, the Superior Court has held that engaging in the planning process
constitutes an act in furtherance of the threat to commit suicide. See In re R.F., 914 A.2d
907, 915-16 (Pa. Super. 2006); Commonwealth v. Smerconish, 112 A.3d 1260, 1264 (Pa.
Super. 2015). In R.F., the Superior Court affirmed the trial court's order denying R.F.'s
petition to expunge because there was sufficient evidence to support the initial 302
commitment. R.F., 914 A.2d at 908. The court rejected R.F.'s argument that he had not
taken an "affirmative action" to commit suicide and concluded R.F. was a clear and
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present danger to himself because he had "used the internet to access ways to commit
suicide, and he phoned a suicide hotline to gather further information on the subject,
which we find coalesce to constitute proof in furtherance of [R.F.'s] suicidal ideation." Id.
at 914. Similarly, in Smerconish, the Superior Court affirmed the trial court's order
denying Smerconish's petition to expunge because there was sufficient evidence of his
suicide threat and an act in furtherance. Smerconish, 112 A.3d at 1264. Smerconish
sent his sister 12 instant messages threatening suicide and stating he was searching for
painless ways to kill himself, which the Superior Court found showed he was severely
mentally disabled and in need of treatment. Id. at 1263-64. Additionally, the court held
that "[h]is online research seeking painless methods of committing suicide constituted an
act in furtherance of the threat to commit harm." Id. at 1264. From these cases, it is clear
that engaging in the planning process by conducting research or expressing adetailed
plan constitute acts in furtherance of athreat under the MHPA.
We see no reason to construe the "acts in furtherance" requirement of Section
301(b)(1) differently from that requirement in Section 301(b)(2)(ii). See Ratzlaf V. U.S.,
510 U.S. 135, 143 (1994) ("[a] term appearing in several places in a statutory text is
generally read the same way each time it appears. "). Even B.W. concedes that the
development of an exact plan to harm another person is sufficient to show an act in
furtherance of athreat for a302 commitment. B.W.'s Brief at 5, 10. B.W. articulated to
his physician a developed, specific plan to kill his coworker, whom he identified, by
strangling him the next time he saw him. This plan was fully-formed as it detailed the
named target of the threat, the method of carrying out the threat of harm, and the
imminence of the threat. Concluding that B.W.'s plan to strangle his coworker is an act
in furtherance is consistent with H.D., in which the court held aplan to jump off abridge
was an act in furtherance. See H.D., 698 A.2d at 94 n.4. Further, our conclusion that a
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fully-developed plan to harm another is supported by R.F. and Smerconish, both of which
held that conducting research to develop afinal plan of how to commit harm was an act
in furtherance under the MHPA. See In re R.F., 914 A.2d 907, 915-16 (Pa. Super. 2006);
Commonwealth v. Smerconish, 112 A.3d 1260, 1264 (Pa. Super. 2015). Significantly,
the three physicians who treated B.W. found his threats credible and determined he was
in need of immediate treatment. Pursuant to Vencil, we accord deference to the
physicians, "as the physician examined and evaluated the individual in the first instance,
was able to observe his or her demeanor, and has particularized training, knowledge and
experience regarding whether a 302 commitment is medically necessary." Vencil, 152
A.3d at 246; see also H.D., 698 A.2d at 94 n.4 (refusing to question the medical
professionals' conclusions).
The Superior Court's holding that B.W.'s actions constituted amere threat without
an act in furtherance was inconsistent with this precedent that the acts of planning and
communicating a developed plan to medical professionals is an act in furtherance.
Moreover, the Superior Court seemingly read into Section 301 the requirement that an
act in furtherance under the MHPA must be overt or tangible. However, the plain
language of Section 301 does not contain such a requirement. Compare 50 P.S.
§7301(b)(1) (stating aperson is aclear and present danger to others if "the person has
made threats of harm and has committed acts in furtherance of the threat to commit
harm), 50 P.S. §7301(b)(2)(ii) (providing a person is a clear and present danger to
oneself if "the person has made threats to commit suicide and has committed acts which
are in furtherance of the threat to commit suicide), 50 P.S. §7301(b)(2)(iii) (stating the
same requirements for proving self-mutilation), with 18 Pa.C.S. §903(e) (requiring proof
of an "overt act in pursuance" for acriminal conspiracy). Because the plain language of
the MHPA does not require an overt act in furtherance of the threat, we decline to read
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such arequirement into the statute. See Sivick v. State Ethics Comm'n, 238 A.3d 1250,
1264 (Pa. 2020) (explaining that a court cannot add language to a statute in its
interpretation of the plain language).
V. CONCLUSION
For these reasons, we conclude that the record contains sufficient evidence to
show that B.W. was a clear and present danger to others at the time of the 302
commitment as the physicians' found he made athreat to harm another and committed
acts in furtherance of that threat. Accordingly, we reverse the Superior Court's order that
the medical records of B.W.'s 302 commitment be expunged and destroyed.
Order reversed. Jurisdiction relinquished.
Chief Justice Baer and Justices Donohue, Dougherty and Wecht join the opinion.
Justice Todd files aconcurring and dissenting opinion in which Justice Saylor joins.
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