In Re: A v. Appeal of: A.V. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: A.V. IN THE SUPERIOR COURT
OF PENNSYLVANIA
APPEAL OF: A.V.
No. 212 EDA 2019
Appeal from the Order Entered December 19, 2018
In the Court of Common Pleas of Delaware County
Civil Division at No.: CV-2018-003006
BEFORE: STABILE, DUBOW, JJ., and COLINS, J.*
MEMORANDUM BY STABILE, J.: FILED MARCH 10, 2020
Appellant A.V. appeals from the December 19, 2018 order of the Court
of Common Pleas of Delaware County (“trial court”), which denied his petition
for expungement of records relating to his involuntary commitment under
Section 7302 of the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7302
(“Section 302”). Upon review, we quash and remand for further proceedings.
The facts and procedural history of this case are undisputed. On April
15, 2008, when Appellant was a fifteen-year-old high school student, he was
involuntarily committed to 120 hours of inpatient treatment under Section
302. On July 1, 2017, following a Pennsylvania Instant Checks System
(“PICS”) background check, Appellant was denied the ability to purchase a .9
mm handgun under Section 6105 of the Pennsylvania Uniform Firearms Act of
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* Retired Senior Judge assigned to the Superior Court.
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1995 (“UFA”), 18 Pa.C.S.A. § 6105. Section 6105, relating to persons not to
possess, use, manufacture, control, sell or transfer firearms provides in
pertinent part:
(a) Offense defined.--
(1) A person who has been convicted of an offense
enumerated in subsection (b), within or without this
Commonwealth, regardless of the length of sentence or
whose conduct meets the criteria in subsection (c) shall not
possess, use, control, sell, transfer or manufacture or obtain
a license to possess, use, control, sell, transfer or
manufacture a firearm in this Commonwealth.
....
(c) Other persons.--In addition to any person who has been
convicted of any offense listed under subsection (b), the following
persons shall be subject to the prohibition of subsection (a):
....
(4) A person 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) [(50 P.S. §§ 7302 to 7304)], known
as the [MHPA]. 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.A. § 6105(a) and (c)(4) (footnote omitted).
On July 13, 2017, Appellant requested from Crozer Keystone Health
Systems (“Crozer”) his medical records relating to the April 2008 Section 302
commitment. On July 19, 2017, Crozer responded, informing Appellant that
“[t]hese records are no longer available as the statute of limitations has been
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reached per PA Department of Health 28 PA Code Section 115.23.” 1 Crozer
Letter, 7/19/17.
On April 20, 2018, following the exhaustion of administrative
proceedings, Appellant petitioned the trial court for expungement of his
mental health records under Sections 6111.1(g)(2) and, in the alternative,
6105(f)(1) of the UFA, 18 Pa.C.S.A. §§ 6111.1(g)(2) and 6105(f)(1).
Section 6111.1(g)(2) provides:
A person who is involuntarily committed pursuant to section 302
of the [MHPA] 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
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1 Section 115.23, relating to preservation of medical records, provides in
relevant part:
(a) Medical records, whether original, reproductions or microfilm,
shall be kept on file for a minimum of 7 years following the
discharge of a patient.
(b) If the patient is a minor, records shall be kept on file until
his majority, and then for 7 years or as long as the records of
adult patients are maintained.
28 Pa. Code § 115.23(a) and (b) (emphasis added). The plain language of
Section 115.23 reveals: (1) when a patient is an adult, his or her medical
records are required to be retained for a minimum of 7 years; (2) when a
patient is a minor, his or her medical records are required to be retained until
he or she reaches the age of majority and thereafter for a minimum of 7 years
consistent with subsection (a). Here, the evidence of record reveals that
Appellant, who was born on January 23, 1993, was a minor—fifteen years
old—when he was committed involuntarily in 2008. As a result, under Section
115.23(b), Crozer was required to keep his medical records until he turned 25
years old, i.e., until January 23, 2018. Troublingly, Crozer failed to do so.
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Pennsylvania State Police be expunged.[2] A petition filed
under this subsection shall toll the 60-day period set forth under
section 6105(a)(2).
18 Pa.C.S.A. § 6111.1(g)(2) (footnote omitted) (emphasis added). Section
6105(f)(1) provides:
Upon application to the court of common pleas under this
subsection by an applicant subject to the prohibitions under
subsection (c)(4), the court 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.
18 Pa.C.S.A. § 6105(f)(2).
The trial court conducted multi-day hearings, following which it
concluded only that Appellant was not entitled to relief under Section
6111.1(g)(2). The trial court reasoned:
[Appellant] failed to present any witnesses (other than himself) in
support of the instant petition. [Appellant] did testify that in April
2008, as a fifteen year old, he informed a teacher at Penncrest
High School and physicians at [Crozer] in Upland, Pennsylvania
[that] he threatened to intentionally injure both himself and his
mother. As a result of these threats, [Appellant] was involuntarily
committed on April 15, 2008. [Appellant] failed to present this
[c]ourt with any medical records surrounding his April 15, 2008
commitment. [Appellant failed to present or subpoena any
records from the physician certifying necessity of involuntary
commitment – Dr. Piechota. Based upon the evidentiary
admission made by [Appellant] during his testimony, this [c]ourt
determined the certifying physician, Dr. Piechota, did have
sufficient evidence to support the decision to involuntarily commit
[Appellant] in April 2008.
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2 Whenever an individual is involuntarily committed under Section 302, a
judge on the courts of common pleas, a mental health review officer, or a
county mental health administrator must notify the PSP within seven days of
the individual’s commitment. See 50 P.S. § 7109(d).
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Trial Court Opinion, 11/21/19 at 4-5 (unnecessary capitalizations and citations
omitted).3 Appellant timely appealed. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
On appeal,4 Appellant presents three issues for our view.
[I.] Did the reviewing court commit reversible error when he
denied [Appellant’s] petition for expunction, where there was no
contemporaneously-created record of [Appellant’s] commitment
presented by the PSP in response to [Appellant’s] verified petition
and testimony at the evidentiary hearing?
[II.]. Did the reviewing court commit reversible error by finding
[Appellant] had failed to present the reviewing court with medical
records, and to call witnesses, regarding [Appellant’s] involuntary
commitment on April 15, 2008, as a basis for denying
[Appellant’s] verified petition for expunction?
[III.] Did the reviewing court commit reversible error by denying
[Appellant’s] petition for expunction, where PSP did not produce
a contemporaneously-created record of examination or findings
by the committing physician that showed [Appellant] had posed a
clear and present danger of harm to himself or others?
Appellant’s Brief at 4.
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3As the Commonwealth notes, the trial court neglected to rule upon its statute
of limitations argument based on Section 5527 of the Judicial Code, 42
Pa.C.S.A. § 5527 (“Any civil action or proceeding which is neither subject to
another limitation specified in this subchapter nor excluded from the
application of a period of limitation by section 5531 (relating to no limitation)
must be commenced within six years.”).
4 It is settled that 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). However, questions of
evidentiary sufficiency “present pure questions of law, over which our
standard of review is de novo and our scope of review is plenary.” In re
Vencil, 152 A.3d 235, 241 (Pa. 2017). A petitioner seeking expungement
bears the burden of proving that “there was not sufficient evidence” to support
the commitment. Id. at 245.
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Instantly, we are unable to reach the merits of Appellant’s claims
because the appeal is not properly before us. The appealability of an order
implicates this Court’s jurisdiction and we may “inquire at any time, sua
sponte, whether an order is appealable.” Bailey v. RAS Auto Body, Inc.,
85 A.3d 1064, 1067-68 (Pa. Super. 2014) (citation omitted); see LeFlar v.
Gulf Creek Indus. Park No. 2, 515 A.2d 875, 879 (Pa. 1986) (noting a court
may raise the issue of subject matter jurisdiction at any time). It is well-
settled that “[u]nder Pennsylvania law, an appeal may only be taken from an
interlocutory order as of right (Pa.R.A.P. 311), from a final order (Pa.R.A.P.
341), from a collateral order (Pa.R.A.P. 313), or from any interlocutory order
by permission (Pa.R.A.P. 31[2], [Pa.R.A.P.] 1311, 42 Pa.C.S.A. § 702(b)).”
Cont’l Bank v. Andrew Bldg. Co., 648 A.2d 551, 553 (Pa. Super. 1994).
Here, there is no indication or suggestion that this is an appealable
interlocutory or collateral order. Therefore, if appealable, it would be
appealable as a final order under Pennsylvania Rule of Appellate Procedure
341, which provides in relevant part that “an appeal may be taken as of right
from any final order of a government unit or trial court.” Pa.R.A.P. 341(a). A
final order is “any order that (1) disposes of all claims and of all parties; or
. . . (3) is entered as a final order pursuant to paragraph (c) of this rule.”
Pa.R.A.P. 341(b). Rule 341(c) provides:
When more than one claim for relief is presented in an action, . . .
the trial court or other government unit may enter a final order as
to one or more but fewer than all of the claims and parties only
upon an express determination that an immediate appeal would
facilitate resolution of the entire case. Such an order becomes
appealable when entered. In the absence of such a determination
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and entry of a final order, any order or other form of decision that
adjudicates fewer than all the claims and parties shall not
constitute a final order.
Pa.R.A.P. 341(c). The Official Note to Rule 341 provides in relevant part:
Paragraph (c) permits an immediate appeal from an order
dismissing less than all claims or parties from a case only upon an
express determination that an immediate appeal would facilitate
resolution of the entire case. Factors to be considered under
paragraph (c) include, but are not limited to:
(1) whether there is a significant relationship between adjudicated
and unadjudicated claims;
(2) whether there is a possibility that an appeal would be mooted
by further developments;
(3) whether there is a possibility that the court or administrative
agency will consider issues a second time; and
(4) whether an immediate appeal will enhance prospects of
settlement.
Pa.R.A.P. 341, Official Note. A court “must consider all four factors when
making a determination of finality.” Bailey, 85 A.3d at 1069 (citation
omitted).
Here, the trial court’s December 19, 2018 order disposed of only one
claim—the expungement claim, which sought relief under Section
6111.1(g)(2). The order, however, did not address whether Appellant was
entitled to relief from the firearms prohibition under to Section 6105(f)(1).
Further, although the parties and the court may have intended to make the
order a final order, the trial court did not consider the required factors for a
finding of finality, and no express determination that an immediate appeal
would facilitate resolution of the entire case appears in the record. Therefore,
because the December 18, 2018 order did not dispose of all claims and the
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trial court did not make a determination of finality, the order is not a final
order and we may not review it. Accordingly, we quash this appeal, and
remand this case for further proceedings consistent with this memorandum.
Appeal quashed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/20
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