In Re: Vencil, N. Appeal of: Vencil, N.

J-A03002-15
2015 Pa. Super. 157
IN RE: NANCY WHITE VENCIL IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: NANCY W. VENCIL
No. 472 MDA 2014
Appeal from the Order February 24, 2014
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 12-665
BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*
OPINION BY MUNDY, J.: FILED JULY 21, 2015
Appellant, Nancy Vencil, appeals from the February 24, 2014 order
denying her petition to expunge, filed in accordance with Section
6111.1(g)(2) of the Pennsylvania Uniform Firearms Act of 1995 (UFA). 1
Through her petition, Appellant seeks the expungement of the records
submitted to the Pennsylvania State Police (PSP) of her April 2, 2003
involuntary commitment, made pursuant to Section 7302 of the Mental
Health Procedures Act of 1973 (MHPA),2 for involuntary emergency
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 6101-6187.
2
50 P.S. §§ 7101-7503.
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examination and treatment for up to 120 hours (302 commitment). After
careful review, we reverse.
The procedural and factual history as contained in the certified record
unfolded as follows. On February 3, 2012, Appellant filed a petition to
expunge a mental health notification record. Respondent, the PSP, filed an
answer and new matter on March 9, 2012. Respondent, Holy Spirit Hospital
of the Sisters of Christian Charity (Holy Spirit), filed an answer on October
23, 2013.3 The matter proceeded to a hearing on January 17, 2014. Based
on testimony received at the hearing, the trial court made the following
findings.
On the evening of April 1, 2003 [Appellant]
went to the emergency room at the Holy Spirit
Hospital complaining of “burning eyes, swollen
nostrils, and pulmonary problems.” She also “asked
for her saliva to be tested.”
As it turns out [Appellant] had suffered a
“chemical injury” from a household product the
previous year. The injury resulted in an
“environmental illness” and various complications.
Since suffering the injury she was unable to live with
her husband in their home. Over the 6 months
immediately prior to April 1 she had stayed in at
least 10 different hotels; had lived with her parents;
and had even tried “corporate housing.” By her own
admission, when she presented to the emergency
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3
Appellant filed preliminary objections to Holy Spirit’s answer based on its
untimeliness, which the trial court overruled in part at the January 17, 2014
hearing. N.T., 1/17/14, at 4. Appellant included the trial court’s January
17, 2014 ruling in her concise statement of errors complained of on appeal.
Appellant has elected not to further pursue that issue. Appellant’s Rule
1925(b) Statement, 4/4/14, at 2, ¶ 7; Appellant’s Brief at 4 n.1.
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room she was “depressed”, “extremely frustrated”
and “cried at times.” Because of [Appellant’s]
emotional state[,] the emergency room physician
summoned her sister to the hospital and requested
the involvement of a crisis worker.
David Diehl is a trained crisis worker who has
been with the Holy Spirit Behavioral Health Center
since 1985. He met with [Appellant] and her sister
at 9:21 p.m. on April 1, 2003. He spent a good deal
of time talking with her. [Appellant] reported that
she had been sleeping very little and not eating well
as a result of her illness. She also reported being
depressed and feeling hopeless. She cried nearly
non-stop during their time together.
Eventually Mr. Diehl and her sister convinced
[Appellant] to voluntarily admit herself to the
psychiatric unit for treatment. However, when they
got to the unit, [Appellant] changed her mind. At
some point thereafter she told Mr. Diehl that she
wanted to kill herself.
Mr. Diehl was very concerned about
[Appellant’s] mental state. He advised her that she
should not leave the hospital. After some
discussion[,] they all agreed to a safety plan where
she would go home with her sister. However, as
[Appellant] put it, “Once l got to the door, I fled.”
Mr. Diehl watched as she jumped into her car
and “took off.” Even though it was after midnight
she drove with her headlights off and traveled the
wrong way on a one-way road as she left the parking
lot. Mr. Diehl was “very nervous” and afraid she
might be involved in a collision.
At that point, Mr. Diehl filled out an application
for a 302 commitment. Sometime later he was
called by one of [Appellant’s] friends who reported
that [Appellant] was just sitting in her car parked in
the friend’s driveway. By the time the police
responded, she was gone. At 10:40 a.m. on April
2[,] the same friend called again to express concern
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for [Appellant’s] safety and to tell him the hotel
where [Appellant] could be found.
The police located [Appellant] at the hotel.
They transported her to Holy Spirit Hospital to be
examined pursuant to the warrant issued in
connection with the 302 application. Upon arrival
Mr. Diehl explained the “Patient’s Rights” form to
her, but she did not appear to understand. At 2:10
p.m. on April 2, 2003 she was examined by the
psychiatrist David Petcash, M.D. After noting the
history which included many of the facts recited
above, he recorded the results of his “mental status
examination” which included the following:
Patient is a 49 year old white female who was
seen in the ECU. She was dressed in normally
appropriate clothing. Her reaction was one of
poor cooperation. Her eye contact was poor.
Patient did have some psychomotor agitation
present. Patient was alert, oriented x 3. Mood
appeared to be extremely anxious and
dysphoric as well as irritable. Her affect was at
times labile. ... Insight and judgment into her
condition appear to be impaired. Also, it was
noteworthy that patient continued to have
apparent delusions regarding sensitivity to
multiple environmental agents described
above, including exposure to “Turtle Wax.”
His provisional diagnosis included, inter alia,
“delusional disorder”, “depressive disorder, nos” and
“rule out major depression, severe, with psychotic
features.” Dr. Petcash determined that [Appellant]
should be involuntarily committed for further
treatment in accordance with Section 302 of the Act.
[Appellant] was admitted to the psychiatric
unit on suicide watch. She was transferred to the
care of another psychiatrist, Sylvester De La Cruz,
M.D. She would only talk with Dr. De La Cruz in the
presence of her husband and her lawyer.
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Dr. De La Cruz met with [Appellant], her
husband, and her lawyer at 3:30 p.m. on April 3,
2003. They all asked Dr. De La Cruz to discharge
her. Apparently at the doctor’s request, [Appellant]
wrote the following statement on her chart:
“I do not have thoughts of suicide nor do I
desire to harm myself or others. I only wish to
gain relief from multiple chemical sensitivities.
I look forward to my full recovery soon!”
While Dr. De La Cruz suggested that she remain in
the unit for treatment on a voluntary basis,
[Appellant] refused. She did agree to pursue
individual counselling as an outpatient. Being
satisfied that there were no grounds for “further 302
commitment”, Dr. De La Cruz discharged her.
Trial Court Opinion, 12/18/14, at 1-5 (citations omitted).
On February 24, 2014, the trial court denied Appellant’s petition to
expunge. Appellant filed a motion to reconsider and a motion for post-trial
relief on March 6, 2014, both of which the trial court denied on March 11,
2014. Appellant filed a timely notice of appeal on March 14, 2014.4
On appeal, Appellant raises the following issue for our review.
Whether the clear and present danger standard is
satisfied under 50 P.S. § 7301: when an individual
does not make a specific active threat of suicide
(rather a vague reference to suicidal thoughts in the
past tense) and does not take any actions in
furtherance of a specific threat?
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4
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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Appellant’s Brief at 4.5
We begin with a discussion of the nature of the underlying proceedings
and the scope and standard of our review of the trial court’s decision in this
matter. “Our well-settled standard of review in cases involving a motion for
expunction is whether the trial court abused its discretion.”
Commonwealth v. Smerconish, 112 A.3d 1260, 1263 (Pa. Super. 2015),
quoting In re Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013), appeal denied,
101 A.3d 104 (Pa. 2014). However, “[q]uestions of evidentiary sufficiency
present questions of law; thus, our standard of review is de novo and our
scope of review is plenary. In conducting sufficiency review, we must
consider the evidence in the light most favorable to the [party that]
prevailed upon the issue at trial.” Commonwealth v. Meals, 912 A.2d
213, 218 (Pa. 2006) (internal quotation marks and citations omitted).
The instant proceedings were brought under Section 6111.1(g)(2) of
the UFA. Section 6111.1(g)(2) provides a means to petition for
expungement of records held by the PSP of an individual’s involuntary 302
commitment. 18 Pa.C.S.A. § 6111.1(g)(2). Expungement will be ordered
upon a finding by the trial court that the evidence is insufficient to justify
such a commitment. Id. We next review the text of the relevant statutes.
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5
Holy Spirit filed an appellee brief, which the PSP have incorporated by
reference in lieu of filing its own appellee brief. See Pa.R.A.P. 2137
(permitting, in cases with multiple parties, adoption of another party’s brief
by reference).
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The MHPA sets forth the factual threshold to be met before an
individual may be subject to involuntary examination and treatment under
the Act.
§ 7301. Persons who may be subject to
involuntary emergency examination and
treatment
(a) Persons subject.—Whenever a person is
severely mentally disabled and in need of immediate
treatment, he may be made subject to involuntary
emergency examination and treatment. A person is
severely mentally disabled when, as a result of
mental illness, his capacity to exercise self-control,
judgment and discretion in the conduct of his affairs
and social relations or to care for his own personal
needs is so lessened that he poses a clear and
present danger of harm to others or to himself.
(b) Determination of Clear and Present
Danger.-
…
(2) Clear and present danger to himself shall
be shown by establishing that within the past
30 days:
…
(ii) the person has attempted suicide and
that there is a reasonable probability of
suicide unless adequate treatment is
afforded under this act. For the
purposes of this subsection, a clear and
present danger may be demonstrated by
the proof that the person has made
threats to commit suicide and has
committed acts which are in furtherance
of the threat to commit suicide; ...
50 P.S. § 7301 (a), (b)(2)(ii).
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The MHPA sets forth the following procedures for initiating an
involuntary commitment for emergency short-term examination and
treatment.
§ 7302. Involuntary emergency examination
and treatment authorized by a physician--not
to exceed one hundred twenty hours
(a) Application for Examination.--Emergency
examination may be undertaken at a treatment
facility upon the certification of a physician stating
the need for such examination; or upon a warrant
issued by the county administrator authorizing such
examination; or without a warrant upon application
by a physician or other authorized person who has
personally observed conduct showing the need for
such examination.
(1) Warrant for Emergency Examination.--
Upon written application by a physician or
other responsible party setting forth facts
constituting reasonable grounds to believe a
person is severely mentally disabled and in
need of immediate treatment, the county
administrator may issue a warrant requiring a
person authorized by him, or any peace officer,
to take such person to the facility specified in
the warrant.
…
(b) Examination and Determination of Need for
Emergency Treatment.--A person taken to a
facility shall be examined by a physician within two
hours of arrival in order to determine if the person is
severely mentally disabled within the meaning of
section 301 and in need of immediate treatment. If
it is determined that the person is severely mentally
disabled and in need of emergency treatment,
treatment shall be begun immediately. If the
physician does not so find, or if at any time it
appears there is no longer a need for immediate
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treatment, the person shall be discharged and
returned to such place as he may reasonably direct.
The physician shall make a record of the examination
and his findings. …
…
(d) Duration of Emergency Examination and
Treatment.--A person who is in treatment pursuant
to this section shall be discharged whenever it is
determined that he no longer is in need of treatment
and in any event within 120 hours, unless within
such period:
(1) he is admitted to voluntary treatment
pursuant to section 202 of this act; or
(2) a certification for extended involuntary
emergency treatment is filed pursuant to
section 303 of this act.
50 P.S. § 7302(a), (b), (d) (footnotes omitted).
In the instant case, Dr. De La Cruz discharged Appellant within 120
hours of her involuntary admission. The MHPA does not provide a procedure
for challenging a 302 commitment that is not followed by a petition seeking
a longer-term commitment for treatment under Section 303 or 304 of the
Act. Section 6111.1(g)(2) of the UFA, however, provides a basis to
challenge the evidentiary sufficiency of a 302 commitment.6
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6
This provision is included in the UFA because a consequence of any
involuntary mental health commitment in Pennsylvania includes a restriction
on possessing firearms, and the PSP are required to maintain records of such
commitments to facilitate enforcement of said restrictions. See 18 Pa.C.S.A.
§§ 6105, 6111.1(f). We have held that, by its terms, relief under Section
6111.1(g)(2) is not available for individuals who were subject to involuntary
commitment for longer terms under other sections of the MHPA. In re
(Footnote Continued Next Page)
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§ 6111.1. Pennsylvania State Police
(a) Administration.--The Pennsylvania State Police
shall have the responsibility to administer the
provisions of this chapter.
…
(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.A. § 6111.1(a), (g)(2) (emphasis added).
We observe that Section 6111.1(g)(2) does not prescribe a specific
review procedure to be followed by a trial court when evaluating the
_______________________
(Footnote Continued)
Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011); but see In re R.F., 914 A.2d
907, 908 (reviewing a trial court’s denial of a petition to expunge court and
hospital records of both a 302 and a 303 commitment, noting “that a
person who has been unlawfully committed to a state mental facility has a
constitutional right to the destruction of hospital [and court] records created
as a result of the illegal commitment”), appeal denied, 929 A.2d 1162 (Pa.
2007) citing Commonwealth v. J.T., 420 A.2d 1064, 1065 (Pa. Super.
1980).
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sufficiency of the evidence resulting in a 302 commitment. In this case, the
trial court performed a hearing de novo, which we conclude was proper and
required. See N.T., 1/17/14, at 1-62. We base our conclusion initially on
the legislative intent discernible from the meaning of the statute, despite its
lack of precise direction.
Our standard for such an inquiry is as follows.
“An issue of statutory construction presents a
pure question of law and our standard of review is de
novo and our scope of review is plenary.” Spahn v.
Zoning Bd. of Adjustment, 602 Pa. 83, 977 A.2d
1132, 1142 (2009). “The object of all interpretation
and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.” 1
Pa.C.S. § 1921(a).
In re T.B., 113 A.3d 1273, 1276 (Pa. Super. 2015). When a statute is not
explicit, we consider a variety of factors to ascertain the legislative intent,
including the object of the provision and the consequences of different
interpretations. Id., citing 1 Pa.C.S. § 1921(a). “Absent a definition,
statutes are presumed to employ words in their popular and plain everyday
sense, and popular meanings of such words must prevail.” Zimmerman v.
Harrisburg Fudd I, L.P., 984 A.2d 497, 501 (Pa. Super. 2009) (internal
quotation marks and citations omitted), appeal denied, 992 A.2d 890 (Pa.
2010).
Our Supreme Court has clarified that for purposes of the MHPA, in
cases where the basis for an involuntary commitment under Section 302 is
tested in a subsequent Section 303 proceeding by a mental health review
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officer, the trial court’s review of the mental health review officer’s decision
is “in the nature of de novo,” because the mental health review officer’s
determinations are not final orders. In re T.J., 739 A.2d 478, 480 n.1. (Pa.
1999); see 50 P.S. § 1709 (providing for trial court review of the
certifications of a mental health review officer); see also In re Involuntary
Commitment of Barbour, 733 A.2d 1286, 1288 (Pa. Super. 1999)
(holding, “the Court of Common Pleas is to conduct a de novo review of the
determination of the mental health review officer[…] because the
determination of the review officer is not a final order that is subject to
appeal to an appellate court[]”) (citation omitted).
As noted above, the MHPA does not provide for direct review of a 302
commitment. Consequently, Section 6111.1(g)(2) provides the only
legislatively authorized judicial review of a 302 commitment when no
extension of the involuntary commitment was sought. We conclude that at a
minimum, the de novo hearing afforded within the MHPA is required for
Section 6111.1(g)(2). See 50 P.S. § 1709; In re T.J., supra. Therefore,
given the function and purpose of Section 6111.1(g)(2), we deem the logic
of the Supreme Court’s application of de novo review to the MHPA, in
general, applies equally to its review of the sufficiency of the evidence
underlying a 302 commitment.
Having determined that a de novo hearing by the trial court is required
for Section 6111.1(g)(2) reviews, we must also address the appropriate
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scope of the required de novo hearing. In the case of a Section
6111.1(g)(2) sufficiency review of a 302 commitment, there is no record for
the trial court to review, and a full de novo hearing is therefore required.7
Accordingly, we reject Holy Spirit’s contention that the trial court is limited in
its Section 6111.1(g)(2) sufficiency review to only the information available
to the Section 302 petitioner and examining physician. See Holy Spirit’s
Brief at 8.8 For example, in this case, it was proper for the trial court, while
conducting its de novo hearing, to consider the medical reports of
Appellant’s treating physicians, regarding her environmental sensitivities, to
discount the Section 302 petitioner and evaluating physician’s diagnosis of a
delusional disorder as an underlying cause of Appellant’s observed
behaviors. See Trial Court Opinion, 7/18/14 at 7-8.
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7
We note that this Court has held that while a trial court’s review of a
mental health review officer’s determination need not be “a full de novo
hearing,” some hearing is required. In re Estate of S.G.L., 885 A.2d 73,
74-75 (Pa. Super. 2005). Unlike the circumstances in the case sub judice,
this holding is premised on the fact that a record exists of the mental health
review officer’s hearing, to which the trial court has access. “While the [trial
court] can review the record before the mental health review officer, the rule
does require a ‘hearing,’ not merely a conference …. For a proceeding to
qualify as a hearing, there must be a record and the opportunity … to make
argument and at least offer supplemental evidence.” Id. at 75 (emphasis in
original).
8
We note with disapproval Holy Spirit’s citation to a trial court opinion that
was adopted as our own in In re C.N., 32 A.3d 261 (Pa. Super. 2011)
(unpublished memorandum adopting trial court opinion). See Internal
Operating Procedures of the Superior Court of Pennsylvania § 65.37
(prohibiting citation to unpublished memoranda as authoritative except
under limited circumstances not applicable here).
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The very essence of a de novo hearing entails
that parties be permitted to present evidence as
shown by the following text:
Black’s Law Dictionary defines a hearing
de novo as “a new hearing or a hearing for the
second time, contemplating an entire trial in
same manner in which matter was originally
heard and a review of previous hearing. On
hearing ‘de novo’ court hears matter as court
of original and not appellate jurisdiction.”
Black’s Law Dictionary 649 (5th ed.1979). Our
case law accords with this definition. See
Commonwealth v. Virnelson, 212 Pa.Super.
359, 367, 243 A.2d 464, 469 (1968) (de novo
review entails full consideration of the case
anew, and the reviewing body is in effect
substituted for the prior decision maker and
redecides the case); Young v. Department of
Environmental Resources, 144 Pa.Cmwlth.
16, 20, 600 A.2d 667, 668 (1991)(“[d]e novo
review involves full consideration of the case
anew”). …
Asin [v. Asin], 690 A.2d [1229,] 1232-1233 [(Pa.
Super. 1997)]. Along the same lines, in Rebert [v.
Rebert, 757 A.2d 981 (Pa. Super. 2000)], a case
involving child support and spousal support, we
stated that:
… In Warner [v. Pollock, 434
Pa.Super. 551, 644 A.2d 747, 750
(Pa.Super.1994)] [], this Court stated under
Rule 1910.11 “one demands a hearing, one
does not file an appeal.” Id. at 750. The
Court emphasized the differences between an
appeal and a hearing de novo, explaining an
appeal deals with assertion of specific error
whereas a de novo hearing is a full
reconsideration of the case.
Rebert, 757 A.2d at 984.
Capuano v. Capuano, 823 A.2d 995, 1002-1003 (Pa. Super. 2003).
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Next, we address the appropriate standard of proof to be applied to
the trial court’s de novo review of a 302 commitment. Section 6111.1(g)(2)
is, again, silent on the standard of proof to be employed by the trial court in
its de novo sufficiency review. Instantly, the trial court noted it applied the
clear and convincing evidence standard. Id. at 6. We conclude the trial
court articulated the correct standard. Again, we draw parallels to this
court’s decisions interpreting the MHPA. Faced with a similar lack of
legislative direction, we held the scope of a trial court’s review of 303
commitment certified by a mental health review officer required application
of the clear and convincing evidence standard of proof. In re Hancock, 719
A.2d 1053, 1055-1057 (Pa. Super. 1998). The Hancock Court explained as
follows.
Consideration of cases addressing omissions in
legislative drafting requires the most critical and
sensitive judicial analysis. It is not the role of the
courts to add provisions which the legislature has
omitted unless the phrase is necessary to the
construction of the statute. ….
Sometimes, however, situations arise that
require this Court to address the practical
ramifications of the application of the law as written
and establish a clearly defined uniform rule in the
absence of clarity by the legislature. After all, [w]e
are to presume that the legislature did not intend a
result that is absurd or unreasonable. Allowing the
courts to continue to apply an unclear and
unworkable standard of proof in the certification of
extended involuntary emergency treatment would
allow potentially absurd or unreasonable results to
occur. Thus, while this Court recommends that the
legislature consider revising the language in MHPA
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§ 303 in order to best clarify and effectuate its intent
by specifying an appropriate standard of proof, we
feel that we cannot wait for future legislative action.
It is clear that the MHPA squarely places
responsibility for its administration in the courts.
…
In holding that the appropriate standard of proof for
certification of extended involuntary treatment is
clear and convincing evidence, this Court provides a
definitive and recognizable standard for judges and
mental health review officers to follow in subsequent
cases.
Id. (internal quotation marks and citations omitted), accord In re R.F.,
supra at 909.9 We conclude the same principles we discussed above for
adopting de novo review to a trial court’s Section 6111.1(g)(2) review
requires adoption of the clear and convincing evidence standard.
“Clear and convincing evidence is the highest burden in our civil law
and requires that the fact-finder be able to come to clear conviction, without
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9
We note this Court has recently cited our Supreme Court’s case of In re
J.M., 726 A.2d 1041 (Pa. 1999), as establishing “the standard for evaluating
the validity of [Section 302 warrants] is whether reasonable grounds exist to
believe that a person is severely mentally disabled and in need of immediate
treatment.” Smerconish, supra at 1264. This aspect of the holding of the
Supreme Court in In re J.M. was concerned with a procedural challenge to
the issuing of a 302 warrant, not the subsequent mental health evaluation
and 302 commitment or a Section 6111.1(g)(2) review of the same. On
appeal, this Court had equated the prerequisites for a 302 mental health
warrant with the requirements for a criminal arrest warrant. In re J.M., 685
A.2d 185 (Pa. Super. 1996) (unpublished memorandum). The Supreme
Court determined this was error and that the lesser standard cited above
was applicable. In re J.M., supra. The Supreme Court in In re J.M. did
not address the level of proof required for a sufficiency review of a 302
commitment. See Id.
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hesitancy, of the truth of the precise fact in issue.” Weissberger v. Myers,
90 A.3d 730, 735 (Pa. Super. 2014) (citations omitted).
“Clear and convincing evidence” requires: [that
t]he witnesses must be found to be credible[;] that
the facts to which they testify are distinctly
remembered and the details thereof narrated
exactly and in due order[;] and that their testimony
is so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction,
without hesitancy, of the truth of the precise facts in
issue. It is not necessary that the evidence be
uncontradicted provided it carries a clear conviction
to the mind or carries a clear conviction of its truth.
In re Novosielski, 992 A.2d 89, 107 (Pa. 2010) (emphasis added, citations
and footnote omitted), cert. denied sub nom., Modzelewski v. Proch, 131
S. Ct. 918 (2011).
Appellate courts usually accept the evidentiary
supported findings of [a fact-finder] but, when the
issue is whether the evidence presented was clear,
direct, precise and convincing, a question of law is
presented and such issue is clearly for determination
by appellate court. The appellate courts need not
accept as true [a fact-finder’s] conclusion as to
whether the required norm or standard of proof
has been met.
In re Nicolazzo’s Estate, 199 A.2d 455, 457 (Pa. 1964) (emphasis added,
citations omitted).
With these principles in mind, we proceed to address Appellant’s issue
on appeal. The essence of Appellant’s claim is that the trial court erred in
determining there was sufficient evidence to support the factual threshold
for an involuntary commitment under Section 302. Appellant’s Brief at 15.
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“Appellant’s original petition for expunction challenges this involuntary civil
commitment as lacking a foundation in facts, on the grounds that she was
not severely mentally disabled, as defined by the MHPA and in need of
immediate treatment.” Id. at 19. The trial court based its decision on the
following findings.
Sometime thereafter she told Mr. Diehl that she
wanted to kill herself. While he was very
concerned he felt comfortable in allowing her to go
home so long as she was accompanied by her sister.
However, petitioner fled as soon as they reached the
door. She jumped in her car and drove away very
erratically. Her articulated desire to commit
suicide coupled with those subsequent actions were
sufficient to satisfy the “clear and present danger”
requirement of the Act.
Trial Court Opinion, 7/18/14, at 7 (emphasis added).
Appellant counters “the record [] does not support any clear or specific
desire by Appellant to imminently commit suicide, leaving Appellant’s loss of
liberty resting unsoundly on a solitary instance of ‘idiosyncratic behavior’ to
wit: Mr. Diehl’s brief observation of erratic driving.” Appellant’s Brief at 16,
citing Addington v. Texas, 441 U.S. 418, 427 (1997) (holding involuntary
commitment cannot be based on mere idiosyncratic behavior or “a few
isolated instances of unusual behavior,” but must be based on clear and
convincing evidence or like standard).
In the instant case, Mr. Diehl, the 302 petitioner, was the Crisis
Worker for Holy Spirit. In his 302 petition, Mr. Diehl indicated the basis for
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his conclusion that Appellant presented a clear and present danger to herself
by checking the box on the petition form with the following language.
[Within the last 30 days,] the person has attempted
suicide and that there is reasonable probability of
suicide unless adequate treatment is afforded under
this act. For the purpose of this subsection, a clear
and present danger may be demonstrated by the
proof that the person has made threats to commit
suicide and has committed acts which are in
furtherance of the threat to commit suicide[.]
N.T., 1/17/14, at 5, Respondent’s Exhibit 1, Application for Involuntary
Emergency Examination and Treatment at 2, Pt. I, ¶ (ii). Mr. Diehl included
the following written factual narrative in support of that conclusion.
Client is delusional and depressed. Living past 6
months in hotel rooms to escape exposure to
chemicals. Told undersigned that she has had
suicidal thoughts because of the condition. Left
hospital premises driving erratically- i.e. with
headlamps off at night and driving out an entrance
only road. This all having occurred on 4/1/03.
Id. at 3, Pt. I (emphasis added).
At the de novo expungement hearing, Mr. Diehl testified about
Appellant’s statement of suicidal thoughts as follows.
THE COURT: Do you know when it was
she articulated that she wanted to kill herself?
THE WITNESS: I don’t.
THE COURT: Did she ever?
THE WITNESS: She would have had to have
said that she had suicidal thoughts. That is what I
wrote in the 302 petition. That’s not something I
would make up about somebody.
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THE COURT: So, it wasn’t at the time that
you evaluated her in the ER, she was just talking
about passive thoughts at that point?
THE WITNESS: Correct.
THE COURT: So, you’re saying that
sometime after that initial evaluation she would have
told you she had suicidal ideations?
THE WITNESS: Yes, I’m saying that.
…
THE COURT: Just so I understand. Are
you saying that sometime after your write-up she
expressed active suicidal thoughts?
THE WITNESS: It was a long time ago. I
wouldn’t write it down as a petitioner on a legal
document that someone told me they were suicidal if
that statement weren’t made.
THE COURT: Okay.
THE WITNESS: I don’t recall the exact words
or anything like that, no.
…
BY [Appellant’s Counsel]: If somebody
started to describe active thoughts, you would record
that somewhere, correct?
A Yes.
Q In this case, there is no record of any
description of any of her active thoughts of suicide,
correct?
A Correct. I will tell you that when we
leave the ER and we go to the inpatient psychiatric
unit, I have papers with me I hand them to the
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inpatient unit. So, there would be conversations and
things said there that I’m going to come back and
record later, also.
THE COURT: Are you saying that you
recorded this on the petition?
THE WITNESS: There would be things on the
petition that don’t appear on the write-up and things
on the write-up that don’t appear on the petition.
I’m not recording everything she said.
THE COURT: I guess my question is, are
you saying -- he asked you if she had articulated
active suicidal thoughts would you record it, and you
said, yes, I would record it?
THE WITNESS: Right.
THE COURT: My question is, are you
saying you recorded this on the petition itself?
THE WITNESS: I did record it on the petition.
…
N.T., 1/17/14, at 42-43, 52-53.
Based on the foregoing, we conclude the trial court’s finding that
Appellant made a threat to commit suicide is not supported by clear and
convincing evidence in the record. The only mention of a threat is Diehl’s
statement in the 302 petition that Appellant “[t]old [him] that she has had
suicidal thoughts.” N.T., 1/17/14, at 5, Respondent’s Exhibit 1, Application
for Involuntary Emergency Examination and Treatment at 3, Pt. I. That
statement does not give any indication of when such thoughts occurred, but
the use of the construction “has had” as opposed to “is having” clearly
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indicates they were in the past. Neither does Diehl’s report or 302 petition
contain any contemporaneous description of the nature of those thoughts,
i.e., if they were passive in nature or if they constituted an actual threat.
Furthermore, at the January 17, 2014 de novo hearing, Mr. Diehl testified he
did not “recall [Appellant’s] exact words or anything like that” but indicated
he would not write something in a petition that did not happen. N.T.,
1/17/14, at 52. Ultimately, in his testimony, Mr. Diehl did not expand on his
written account contained in the 302 petition. “She would have had to have
said that she had suicidal thoughts. That is what I wrote in the 302
petition.” Id. at 42.
Based on our thorough review of the record, we conclude there is not
clear and convincing evidence sufficient to support the trial court’s finding
that Appellant “wanted to kill herself” or “articulated [a] desire to commit
suicide.” Trial Court Opinion, 7/18/14, at 7; see In re Nicolazzo’s Estate,
supra. The only such references in the transcript were in the questions
posed to Diehl, which he did not endorse, but rather deferred to his
perfunctory written account in the 302 petition. N.T., 1/17/14, at 52. This
testimony regarding Appellant’s statement and the attendant circumstances
was not “distinctly remembered and the details thereof narrated exactly.”
In re Novosielski, supra.
We similarly conclude the evidence failed to establish any act in
furtherance, even had such a threat of suicide been made. There is no
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account or testimony of how Appellant’s driving out of the hospital parking
lot in an unsafe manner related to such a threat.
We further note the evaluation by Dr. Petcash did not contain any
independent account of Appellant’s alleged suicidal thoughts, noting
“according to Mr. Deihl, … [Appellant] expressed suicidal ideations.” N.T.,
1/17/14, at 5, Respondent’s Exhibit 1, Application for Involuntary
Emergency Examination and Treatment at 7, Pt. VI, ¶ (ii). Thus, Dr.
Petcash’s evaluation provides no additional factual basis, clear and
convincingly or otherwise, into the factual predicate to Appellant’s
involuntary commitment of a threat to commit suicide and commission of an
act in furtherance thereof. See 50 P.S. § 7301(b)(2)(ii).
The facts of the instant case stand in stark contrast to the more
specifically developed facts present in In re R.F., which we concluded were
sufficient for a 302 commitment and included the following.
1) Appellant’s stress over divorce proceedings
initiated by his wife, as well as her securing exclusive
possession of the marital home; 2) Appellant’s
searching the internet for data on “How to commit
suicide,” and following this by calling a suicide
hotline for information on the topic provided on the
web site; 3) Appellant’s denial when inquiry was
made by police and medical personnel regarding
possession of loaded weapons in his home and
truck; 4) Appellant’s admission to the hotline
operator and medical personnel that he had
contemplated suicide; 5) Appellant’s suicide ideation
is confirmed by hospital records; and 6) finally, the
trial court attributing Appellant with a lack of
credibility at the [expungement] hearing….
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In re R.F., supra at 915-16; see also J.C.B. v. Pa. State Police, 35 A.3d
792, 793-794 (Pa. Super. 2012) (determining, in the context of a review
under 18 Pa.C.S.A. § 6105(a) petition for reinstatement of gun rights, that
evidence was sufficient for 302 commitment where committee appeared at
hospital for foot injury but reported to hospital personnel that he had
suicidal thoughts and the night before had put a gun to his head and pulled
the trigger), appeal denied, 49 A.3d 444 (Pa. 2012), cert. denied, 133 S. Ct.
1808 (2013).
For the foregoing reasons, we conclude the trial court properly
conducted a full de novo hearing to address Appellant’s petition to review
the sufficiency of her 302 commitment and articulated the correct clear and
convincing standard of proof. See In re T.J., supra; In re Hancock,
supra. We conclude the trial court erred as a matter of law, however, in
determining the evidence of record is sufficient under that standard to show
that Appellant presented a clear and present danger to herself as averred in
the 302 application. See 50 P.S. § 7301. Specifically, neither the
contemporaneous reports by the 302 petitioner and examining physician nor
the testimony received at the January 17, 2014 de novo hearing describe
anything more than a statement that Appellant “has had suicidal thoughts
because of [her medical] condition.” N.T., 1/17/14, at 5, Respondent’s
Exhibit 1, Application for Involuntary Emergency Examination and Treatment
at 2, Pt. I, ¶ (ii). Without more facts establishing the time of such thoughts
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and the attendant circumstances and actions connected thereto, the burden
to show clear and present danger by clear and convincing evidence cannot
be met. Accordingly, we reverse the trial court’s February 24, 2014 order
and direct that “the record of the commitment submitted to the Pennsylvania
State Police be expunged.” 18 Pa.C.S.A. § 6111.1(g)(2).
Order reversed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/21/2015
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