J

- S05006

- 23

2023 PA Super 81

IN RE: PETITION OF J.G.F.

APPEAL OF: PENNSYLVANIA STATE
POLICE :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 925 WDA 2022

Appeal from the Order Entered July 12, 2022
In the Court of Common Pleas of Allegheny County Orphans ’ Court at No(s): CC

- 22

- 00082

BEFORE: BENDER, P.J.E., LAZARUS, J., and McLAUGHLIN, J.

OPINION BY BENDER, P.J.E.: FILED: May 11, 2023

The Pennsylvania State Police ( hereinafter “ PSP ” ) appeal s from the

orphans ’ court ’ s July 12, 2022 order granting Appellee ’ s, J.G.F., Petition to

Vacate and Expunge Involuntary Civil Commitment Records and Restoration

of Rights . After careful review, we reverse.

The PSP summarize s the pertinent facts and proced ural history of this

case, as follows :

On May 3, 2020, J.G.F. was involuntary committed to Western Psychiatric Institute and Clinic ( hereinafter “ WPIC ” ) , pursuant to
section 3 02 of the Mental Health Procedures Act, 50 P.S. § 7302 (hereinafter “MHPA”), afte r an examination by Drs. Paul A. Valencia, MD [,] and Xixi Wong, MD [,] at the University of Pittsburgh Medical Center (hereinafter “UPMC”) and WPIC, respectively, in Allegheny County, Pennsylvania.

On March 22, 2022, J.G.F., by and through his counsel, fil ed a

Petition to Vacate and Expunge Involuntary Civil Commitment and Restoration of Rights. In the Petition, J.G.F. generally alleged [that] the evidence upon which the commitment occurred was insufficient and sought expungement of the records regarding h isJ

- S05006

- 23

- 2

-

involuntary commitment pursuant to 18 Pa.C.S. § 6111.1(g)(2) (hereinafter “section 6111.1(g)(2)”) and section 113 of the MHPA, 50 P.S. § 7113 (hereafter “section 113 of the MHPA [”] ). The final paragraph of the Petition requested that the [t] rial [c] ourt

“ [r] estore to petitioner any and all of his civil rights, which may have been impaired as a result of the aforementioned involuntary
commitment.”

A hearing was held on July 11, 2022. The PSP entered into
evidence the certified record of the involunt ary commitment of J.G.F. from May 3, 2020, upon stipulation.

During the hearing [,] J.G.F. testified as to the facts and

circumstances surrounding the 302 commitment. No facts or testimony [were] produced about J.G.F. ’ s current mental stability or ability to possess a firearm without risk of harm t o himself or
others.

After the close of testimony [, the ] PSP argued [that,] pursuant to
In re Vencil , 152 A.3d 235 (Pa.

... 2017) [,] the [t] rial [c] ourt may only review what is contained within the certified 302 record [,] as section 6111.1(g)(2) reviews pose pure questions of law that require no further testimony. [The] PSP further argued that any
relief as to the restoration of firearms rights pursuant to section 6105(f) [was] waived because [J.G.F.] failed to cite that authority and specifically plead for relief under that authority. Further, [the] PSP argued that [J.G.F.] provided “absolutely zero testimony ... as to why he is no longer a threat of harm to himself or others.”

Following the hearing, the [trial court] took the matter under
advisement

.... On July 12, 2022, the [t] rial [c] ourt signed an order granting expungement of the involuntary commitment and

restor [ing] ... all civil rights that have been impaired [] as a result of the involuntary commitment

. The [t] rial [c] ourt ’ s [o] rder was docketed July 18, 2022.

[The] PSP ’ s [n] otice of [a] ppeal was sent in for filing on August 11, 2022, and docketed August 17, 2022. ... [T] he [t] rial [c] ourt
entered an [o] pinion dated October 14, 2022, and docketed October 17, 2022.

PSP ’ s Brief at 5

- 7 (citations to the reproduced record omitted).

In its brief, the PSP presents three issues for our review:J

- S05006

- 23

- 3

-

1. Did the trial court commit an error of law and/or abuse its discretion in ordering the expungement of a record of involuntary commitment pursuant to 18 Pa.C.S. § 6111.1(g)(2)[,] where the underlying facts, as recorded in the certified record, were sufficient to warrant an involuntary commitment under the [MHPA]?

2. Did the trial court abuse its discretion in ordering the restoration of firearms rights pursuant to 18 Pa.C.S. § 6105(f) where [J.G.F.] failed to meet his burden in proving [he] was no longer a threat
of harm to himself or others?

3. Did the [t] rial [c]ourt commit an error of law in ordering the restoration of firearm rights pursuant to 18 Pa.C.S. § 6105(f) where [J.G.F.] waived such a request for relief by failing to specifically plead for that relief in his original petition?

Id. at 4. 1

Befor e addressing the PSP ’ s issues, we begin by setting forth the legal

framework governing the issues before us in this case . Our Supreme Court

has explained:

The legislature enacted Pennsylvania ’ s [MHPA], 50 P.S. §§ 7101

– 7503, to establish procedures “to ass ure 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 e mergency 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 a person who

_________________ __________ ______ ____ _______

1 We note that J.G.F. did not file an appellee’s brief in this case.J

- S05006

- 23

- 4

-

is “severely mentally disabled and in need of treatment” may be subject to “involunt ary 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 soci al 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 a clear and present d anger 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

- d ay 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, a clear and present danger of harm to others may be demonstrated by proof that the person has ma de threats of harm and has
committed acts in furtherance of the threat to commit harm.

50 P.S. § 7301(b)(1). 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 thereJ

- S05006

- 23

- 5

- 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, 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; or

(iii) the person has substantially mutilated himself or attempted to mutilate himself substantially and that there is the reasonable pro bability 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 a re in furtherance of the threat
to commit mutilation.

50 P.S. § 7301(b)(2).

The Pennsylvania Uniform Firearms Act of 1995 (UFA), 18 Pa.C.S. §§ 6101

– 6128, makes it unlawful for a person who has been involuntarily committed under Section 302 to “possess, use

, control, sell, transfer or manufacture” a firearm or to obtain a license 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 a 302 commitment to obtain relief from the Section 6105( a)(1) firearm restrictions. [The first means] 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 [M HPA] 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 courtJ

- S05006

- 23

- 6

- 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).

I n re B.W. , 250 A.3d 1163, 1165

– 67 (Pa. 2021) (one f ootnote omitted)

.

In this case

, the PSP first argue s that the orphans’ court abused its

discretion in finding the evidence insufficient to support J.G.F. ’ s involuntary

commitment. According to the PSP, the court erroneously conducted a de

novo hearing

, and then considered J.G.F. ’ s testimony at that proceeding in

concluding the evidence was insufficient. The PSP insists that our Supreme

Court in Vencil limit ed a sufficiency review in an involuntary commitment case

to the certified record and the facts known to the physicians at the time of the

involuntary commitment. Because

, here, the court instead considered J.G.F. ’ s

hearing testimony in reaching its decision to expunge his involuntary

commitment record, the PSP concludes that the “[c]ourt mis applied the law

and committed reversible error.” PSP ’ s Brief at 9. For the following reasons,

we agree.

“W e review the trial court ’ s denial of a motion for expunction for an

abuse of its discretion.” A.M.M. v. Pa. State Police , 194 A.3d 1114, 1117

(Pa. Super. 2018) (citation omitted).

[Our Supreme] 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

i n

... Vencil ...:J

- S05006

- 23

- 7

- 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 informatio n 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 instan ce, 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 [s] ection 6111.1(g)(2) petitions).

Genits v. Commonwealth

, No. 191 EDA 2021, unpublished memorandum

at *4 (Pa. Super. filed Oct. 8, 2021) (quoting B.W. , 250 A.3d at 1167)

(emphasis added).

Thus, it is clear that,

[s] ection 6111.1(g)(2) requires judicial review of “the sufficiency
of the evidence upon which the commitment was based .” 18

Pa.C.S. [] § 6111.1(g)(2) (emphasis added). “[T]he evidence upon which the commitment was based” i s t he information contained in the physician ’ s record of the examination of the individual and the resultant findings. See 50 P.S. § 7302(b) (requiring the physician to make a record of the examination and his or her findings). Therefore, th e plain language of section 6111.1(g)(2) directs a trial court to review the physician ’ s findings, made at the time of the commitment, to determine whether the evidence known by the physician at the time, as contained in the contemporaneously

- created recor d, supports the conclusion that the individual required commitment under one (or more) of the specific, statutorily

- defined circumstances. See 50 P.S. § 7301.J

- S05006

- 23

- 8

-

Vencil

, 152 A.3d at 242

. “ [T] he appropriate standard of proof applicable to

the physician ’ s record findings is a preponderance of the evidence standard,

which is generally applicable to civil matters and has been classified as ‘ a more

likely than not inquiry, ’ supported by the greater weight of the evidence;

something a reasonable per son would accept as sufficient to support a

decision. ” Id. at 246 (citations omitted).

In the instant case, the orphans’ court summarize d the evidence

presented at the hearing on J.G.F. ’ s petition to expunge, as follows:

[J.G.F.] testified that, on Ma y 3, 2020, he had stopped at a

convenience store in Monroeville and, while there, purchased and
drank [a] blended drink of ice tea and beer. According to [J.G.F.]

, he became lightheaded from the drink, and, suspecting that the drink may have been tainted, he requested and received a ride from Monroeville Police to UPMC East Hospital for drug testing. At some point after arriving at the hospital emergency room, [J.G.F.] made a request to use a restroom. That request was answered by a directive from two UP MC police officers that [J.G.F.] remain in the emergency room and use a urinal bottle. [J.G.F.] complied, but asserts that, as he did so, the officers “ started laughing at me really hard. ” [J.G.F.] reacted by throwing the container at one of the police o fficers and, as the second officer approached, striking
that officer. [J.G.F.] avers, however, that the contact with the
second officer was accidental. Following the outburst, [J.G.F.] was sedated, placed in restraints, and transported to UPMC Western Psychiatric Hospital ( “ WPIC ” ), where he remained for three days. The report entered by the referring physician at UPMC East Hospita l described [J.G.F.] as “ delusional, possibly paranoid, believing someone is poisoning his beer, that someone killed his dog and raped his girlfriend [. ” ] The report stated that [J.G.F.]

“ threw urine at staff and [was] physically and verbally abusive [,”]
and that [J.G.F.] “ likely will require inpatient treatment, including medication and therapy. ”

At WPIC, [J.G.F.] was examined by Dr. Xixi Wong. Dr. Wong
found [J.G.F.] to be “ calm and cooperative ” and stated that [J.G.F.] understood the patients ’ rights which were recited to him.J

- S05006

- 23

- 9

-

The justification entered for involuntary treatment was “ an acute
medical crisis in the e mergency room. ” The proposed course of

treatment was “ further evaluation, treatment and stabilization. ” [J.G.F.] has testified, that, apart from an initial injection of Haldol administered at UPMC East Hospital, he received no treatment at
either facilit y: “ No medication. No nothing. I was released after
72 hours. ” [J.G.F.] testified that he met with a doctor at WPIC only twice, upon admission and at discharge.

Trial Court Opinion (TCO), 10/17/22, at 3

- 4 (citations to the record omitted).

Ultimately, the court determined that J.G.F. ’ s “own testimony set forth

a credible account of events which asserted that his outburst at the UPMC East

facility had resulted from the humiliation of being observed and laughed at as

he was compelled to urinat e publicly into [a] container.” Id. at 4. In rejecting

the PSP ’ s allegation that the evidence was sufficient to support J.G.F. ’ s

involuntary commitment, the court explained:

A difficulty with the [PSP ’ s] contention that the certified record provides suff icient evidence to have warranted an involuntary commitment pursuant to [s] ection 302 of the [MHPA] is that [J.G.F.] has testified that, although he was referred to WPIC, little was provided at that facility by way of
examination or treatment: “ they took m e at 6:30 in the morning to [WPIC] and I was there for three days. No
medication. No nothing. I was released after 72 hours [.”]
Consistent with [J.G.F. ’s ] assertion, an examination of the WPIC
record discloses that [J.G.F.] understood the rights explained to him, and indicates no course of further treatment.

Contrary to the contention made by the [PSP] during cross

examination that [J.G.F.] had asserted that “ everything in the 302 is just incorrect [,” J.G.F.] acknowledged th at he had responded in an aggressive manner toward the UPMC police, throwing the

container of urine toward them. [J.G.F.] acknowledged the conduct that had precipitated the 302 referral and the account of events as described by [J.G.F.] were found to be

c redible. Given that account of events

, and the sparse WPIC record, it was determined that the evidence upon which the involuntary commitment was based was insufficient.J

- S05006

- 23

- 10

-

Id. at 5 (emphasis added).

It is obvious from the emphasized language of the court th at, in

assessing the sufficiency of the evidence to support J.G.F. ’ s involuntary

commitment, it considered his testimony at the hearing on his petition to

expung e

. From that testimony

, which the court found credible, it concluded

that his involuntary comm itment was un necessary based, at least in part, on

his statements that he was not thoroughly examined or provided any

treatment during his 72

- hour commitment. Because the orphans’ court clearly

did not limit its review to the facts known to the physicians at the time they

ordered J.G.F. ’ s involuntary commitment, the court abused its discretion in

finding the evidence insufficient to support his involuntary commitment.

Instead, we agree with the PSP that the information contained in the

physician s ’ record s of the ir examination s of J.G.F. and the ir resultant findings

were sufficient to support his involuntary commitment by a preponderance of

the evidence. As the PSP summarizes:

In l ooking at the certified record, PSP Exhibit A ( [reproduced record] 35

- 55), as required under Vencil , it is clear that sufficient evidence existed for an involuntary commitment. The first section 302 application at UPMC was made because [J.G.F.] was unable to care for himself unless adequate treatment was afforded to
him. The application states that [J.G.F.] was brought to UPMC

East by EMS because of his belief that someone had poisoned his
water and his demand to speak to police. It further states [J.G.F.] stated someone had killed his dog and raped his girlfriend. It also states that he threw urine and became physically combative with staff requiring restraints. Dr. Paul A. Valencia found [J.G.F.] to be “delusional,” “paranoid,” and a “potential harm to others as he
threw urine at staff and [was] physically and verbally abusive.”
Dr. Valencia ultimately found [J.G.F.] severely mentally disabledJ

- S05006

- 23

- 11

-

and in need of treatment by checking box A on Part VI Physician ’ s Examination of the certified record.

Once transferred to WPIC, [J.G.F.] was re

- evaluated by Dr. Xixi Wong. Dr. Wong checked a box indicating that [J.G.F.] was in an
acute medical crisis in the emergency room justifying the need for involuntary treatment. Dr. Wong further noted that [J.G.F. ] was “calm, cooperative, states that he is on 302 [because] he wanted covid testing” and needed “acute inpatient psych admission for further evaluation, treatment and stabilization.” Dr. Wong ultimately also found the [J.G.F.] to be severely mentally dis abled
and in need of treatment by checking box A on Part VI Physician ’ s Examination of the certified record.

Two separate physicians at two separate facilities examined the [J.G.F.] and found him to be in need of involuntary treatment. Each physician ’ s d ecision must be afforded great deference due to their experience and training. It is clear through their
observations that [J.G.F.] was in the midst of a mental health crisis evidenced by his delusional and paranoid thoughts concerning someone poisoning h is water, killing his dog, and raping his girlfriend. Further, he did not understand why he was being 302 ’ d at UPMC, evidenced by him telling the doctor at WPIC [that] the 302 was based on [J.G.F. ’s ] desire to have covid testing. Additionally, [J.G.F.] also became physically combative and verbally abusive to the officers and security at UPMC and even
threw urine on them. [J.G.F. ’s ] actions meet the definition of being severely mentally disabled beca use his actions and thoughts show 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 oth ers or himself.

PSP ’ s Brief at 14

- 16.

According the appropriate deference to the two physicians who

examined J.G.F. , we conclude that the preponderance of the evidence

support s their decisions that he was having a mental health crisis that

impaired his “c apacity to exercise self

- control, judgment and discretion in the

conduct of his affairs and social relations or to care for his own personalJ

- S05006

- 23

- 12

-

needs [,] ” such that he posed “ a clear and present danger of harm to others

or to himself[.]” 50 P.S. § 7301(a). T hus, we reverse the orphans ’ court ’ s

order granting J.G.F. ’ s petition to expunge the record of his involuntary

commitment and reinstating his civil rights that were impaired by that

commitment. 2

Order reversed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/11/2023

_________________ __________ ______ ____ _______

2 Based on our disposition, we need not address PSP’s remaining two issues.