J-A24002-17

2017 PA Super 396

IN RE: S.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: S.M.

No. 906 WDA 2016

Appeal from the Order May 25, 2016

In the Court of Common Pleas of Allegheny County

Orphans' Court at No(s): 206 of 2014

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY MOULTON, J.: FILED DECEMBER 15, 2017

S.M. appeals from the May 25, 2016 order entered in the Allegheny 

County Court of Common Pleas concluding that S.M. is severely mentally 

disabled and directing S.M. to remain involuntarily committed to an inpatient 

facility for 30 days, to be followed by 150 days of outpatient psychiatric 

treatment. After a careful review of the record, we reverse. While appellee 

Allegheny County (“County”) cites to a history of conduct that might support 

the involuntary commitment at issue, little of that history is part of the 

record before this Court. Because the record before us contains insufficient 

evidence to support the commitment, we reverse.

On May 25, 2016, S.M. was involuntarily recommitted to the care of 

the Western Psychiatric Institute and Clinic (“WPIC”) and Pathways LongTerm Structured Residence (“Pathways”). This commitment was the latest 
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in a series of commitments that our review of the record suggests began on 

September 26, 2014, when S.M. was involuntarily committed to the care of 

the WPIC for 20 days under section 303 of the Mental Health Procedures Act 

(“MHPA”), 50 P.S. § 7303.1 On May 19, 2016, after S.M. had been 

involuntarily committed for almost 180 days under section 305 of the MHPA, 

a hearing was held at Pathways to determine whether S.M.’s involuntary

commitment2should be extended under section 305. At the end of that 

hearing, the presiding Mental Health Review Officer (“MHRO”) recommended 

that S.M. be committed for another 180 days. That same day, S.M. filed a 

petition for review of the MHRO’s recommendation with the Court of 

Common Pleas of Allegheny County.

On May 25, 2016, the trial court held a de novo hearing, after which it 

ordered S.M. to receive another 180 days of involuntary treatment, with 

____________________________________________

1 Both S.M. and the County state that S.M. was involuntarily 

committed under section 302 of the MHPA on January 23, 2014. However, 

as we later address, this section 302 commitment does not appear of record. 

In fact, the only pre-September 2014 commitment order in the certified 

record is a February 14, 2014 order in which the trial court ordered S.M. 

involuntary committed for 90 days under section 304(b) of the MHPA. We 

note our concern with the lack of information in the certified record, 

especially given the substantial deprivation of liberty associated with civil 

commitment orders.

2 Because the petition is not contained in the certified record, we 

cannot determine who moved for S.M.’s continued involuntary commitment.
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inpatient treatment not to exceed 30 days. On June 23, 2016, S.M. timely 

filed a notice of appeal. 

The trial court explained the basis for its decision in an opinion filed 

pursuant to Pa.R.A.P. 1925(a), which provides in full:

On May 19, 2016, a hearing was held before a . . . MHRO . 

. . who committed S.M. . . . pursuant to the provisions of 

50 P.S. § 7305 for a period not to exceed 180 days. On 

May 19, 2016, [S.M.] petitioned the Court for a review of 

the MHRO’s recommendation. On May 25, 2016, a hearing 

was held and the Court affirmed the MHRO’s 

recommendation of the 180[-]day commitment. The Court 

further ordered in-patient treatment not to exceed 30 days 

effective May 25, 2016, to be follow by out-patient 

treatment. On June 23, 2016, a [n]otice of [a]ppeal was 

filed.

At the hearing before the Court held on May 25, 2016, 

evidence was received that [S.M.] has a 20 year history of 

violent and aggressive behavior. In December of 2015, 

while living at a step-down mental health facility, [S.M.] 

stopped taking the majority of her medications resulting in 

her not sleeping for several nights in a row, not eating, 

and not taking care of herself. [S.M.] was also using racial 

slurs towards other residents of the facility creating an 

atmosphere of hostility and concern regarding retaliation 

from other residents.

[S.M.] was then readmitted into [WPIC]’s acute care 

unit. On or about February 10-12, 2016, [S.M.] was 

discharged with the understanding that she would need to 

continue on her medications. [S.M.] did not continue with 

her medication and that resulted in the instant 

commitment.

The Superior Court reviews determinations pursuant to 

the MHPA “to determine whether there is evidence in the 

record to justify the hearing court’s findings.” In re T.T., 

875 A.2d 1123, 1126 (Pa.Super. 2005), citing 

Commonwealth ex rel. Gibson v. DiGiacinto, 439 A.2d 

105, 107 (Pa. 1981).
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The Court in this matter conducted a hearing, reviewed 

the documents provided, listened to the recording of the 

hearing before the MHRO several times, considered the 

statements of [S.M.] at the review hearing, and weighed 

all the arguments made. Based on the aforementioned, 

the Court believes there was clear and convincing evidence 

presented in this case to affirm the MHRO order. [S.M.] 

has a 20 year history of violent and aggressive behavior, 

and was not taking her prescribed medication. Thus, she 

was, at a minimum, a danger to herself. Therefore, the 

Order entered by this Court should be AFFIRMED.

Opinion, 9/12/16, at 1-2 (“1925(a) Op.”) (emphasis in original).

S.M. raises only one issue on appeal: “Was there insufficient evidence 

presented at the civil commitment hearing to support the Orphan[s’] Court’s 

order of commitment?”3 S.M.’s Br. at 4.

I. The Structure of the MHPA

The MHPA provides for involuntary emergency examination and 

treatment of persons who are “severally mentally disabled and in need of 

immediate treatment.” 50 P.S. § 7301(a). It then authorizes increasingly 

long periods of commitment for such persons, balanced by increasing due 

____________________________________________

3 Although S.M.’s 180-day involuntary commitment calculated from 

May 25, 2016 presumably has ended, “the issues raised by this appeal are 

not moot since they are capable of repetition and may evade review.” In re 

Involuntary Commitment of Barbour, 733 A.2d 1286, 1287 n.3 

(Pa.Super. 1999); see In re Woodside, 699 A.2d 1293, 1296 (Pa.Super. 

1997) (noting that expired commitment order presented a “live controversy 

despite the fact that appellant’s commitment has long since expired. . . . 

‘because involuntary commitment affects an important liberty interest, and 

because by their nature most involuntary commitment orders expire before 

appellate review is possible’”) (quoting Commonwealth v. Blaker, 446 

A.2d 976, 977 n.1 (Pa.Super. 1981)).
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process protections in recognition of the significant deprivations of liberty at 

stake. See In re A.J.N., 144 A.3d 130, 137 (Pa.Super. 2016) (highlighting 

MHPA’s purpose as “an enlightened legislative endeavor to strike a balance 

between the state’s valid interest in imposing and providing mental health 

treatment and the individual patient’s rights”) (quoting In re Hutchinson, 

454 A.2d 1008, 1010 (Pa. 1982)); In re Ryan, 784 A.2d 803, 807 

(Pa.Super. 2001) (“The legislative policy reflected in the [MHPA] is to require 

that strict conditions be satisfied before a court order for commitment shall 

be issued. Such a policy is in accord with the recognition that commitment 

entails a massive deprivation of liberty.”) (quoting Commonwealth v. 

Hubert, 430 A.2d 1160, 1162 (Pa. 1981)). Accordingly, “[i]n applying the 

[MHPA,] we must take a balanced approach and remain mindful of the 

patient’s due process and liberty interests, while at the same time permitting 

the mental health system to provide proper treatment to those involuntarily 

committed to its care.” In re S.L.W., 698 A.2d 90, 94 (Pa.Super. 1997). 

Under section 301(a):

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.
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50 P.S. § 7301(a). Section 301(b)(2) defines “clear and present danger” to 

oneself4as follows:

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, 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 probability of mutilation unless 

adequate treatment is afforded under this act. For the 

purposes of this subsection, a clear and present 

____________________________________________

4 Throughout the petition and review of S.M.’s May 19, 2016 

commitment, the County has argued that S.M. is incapable of caring for 

herself, creating a danger of death or serious harm to herself under section 

301(b)(2)(i) of the MHPA. In a footnote in its brief to this Court, the County 

does contend that her illness and inability to take care of herself “led her to 

exhibit paranoid and delusional behaviors that have severely impacted her 

quality of life and her ability to safely and civilly interact with others.” See

County’s Br. at 22 n.4. Nevertheless, the County has not argued that S.M. 

is a clear and present danger to others under section 301(b)(1). 
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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.

Id. § 7301(b)(2).

Section 302 provides for emergency examination of persons, which

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.

Id. § 7302(a). Under section 302(b), a physician must examine the person 

“within two hours of arrival . . . to determine if the person is severely 

mentally disabled within the meaning of section 301 and in need of 

immediate treatment.” Id. § 7302(b) (internal footnote omitted). If the 

physician so finds, then “treatment shall be begun immediately.” Id. If 

not, then “the person shall be discharged and returned to such place as he 

may reasonably direct.” Id. Section 302 allows a person to be committed 

up to 120 hours. Id. § 7302(d).

When a treatment “facility determines that the need for emergency 

treatment is likely to extend beyond 120 hours,” section 303 provides that 

the facility may apply to have that involuntary commitment extended up to 

20 days. Id. § 7303(a), (h). The facility files an application for such 

commitment with the court of common pleas, which then appoints an 

attorney for the person unless it appears “that the person can afford, and 
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desires to have, private representation.” Id. § 7303(b). “Within 24 hours 

after the application is filed, an informal hearing shall be conducted by a 

judge or . . . [MHRO.]” Id. The court or MHRO must keep the record 

generated by these proceedings for at least one year. Id. § 7303(c)(2). 

Where the judge or MHRO “determines that extended involuntary emergency 

treatment is necessary,” a “certification shall be filed with the director of the 

facility and a copy served on the person, such other parties as the person 

requested to be notified pursuant to section 302(c), and on counsel.” Id. § 

7303(d)(1), (e).

Should an MHRO certify that an extended section 303 commitment is 

appropriate, the committed person may “petition to the court of common 

pleas for review of the certification.” Id. § 7303(g). The court must hold a 

hearing “within 72 hours after the petition is filed unless a continuance is 

requested by the person’s counsel.” Id. “The hearing shall include a review 

of the certification and such evidence as the court may receive or require.” 

Id. “If the court determines that further involuntary treatment is necessary 

and that the procedures prescribed by the [MHPA] have been followed, it 

shall deny the petition. Otherwise, the person shall be discharged.” Id.
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Section 304 of the MHPA allows for court-ordered involuntary 

treatment up to 90 days.5 Id. § 7304(g). Petitions for involuntary 

commitment under section 304 may be made for persons already committed 

under section 302 or 303, see id. § 7304(b), as well as for persons not 

currently committed, see id. § 7304(c). Subsection (a) describes who may 

be committed under section 304: 

(1) A person who is severely mentally disabled and in 

need of treatment, as defined in section 301(a), 

may be made subject to court-ordered 

involuntary treatment upon a determination of 

clear and present danger under section 301(b)(1) 

(serious bodily harm to others), or section 

301(b)(2)(i) (inability to care for himself, creating 

a danger of death or serious harm to himself), or 

301(b)(2)(ii) (attempted suicide), or 

301(b)(2)(iii) (self-mutilation).

(2) Where a petition is filed for a person already 

subject to involuntary treatment, it shall be 

sufficient to represent, and upon hearing to 

reestablish, that the conduct originally required 

by section 301 in fact occurred, and that his 

condition continues to evidence a clear and 

present danger to himself or others. In such 

event, it shall not be necessary to show the 

reoccurrence of dangerous conduct, either 

harmful or debilitating, within the past 30 days.

Id. § 7304(a)(1),(2) (internal footnote omitted). For persons already 

subject to treatment under sections 303, 304, or 305, the county 

____________________________________________

5 Some exceptions in section 304, not germane to this appeal, allow 

for involuntary treatment for a period not to exceed one year. See 50 P.S. § 

7304(g)(2).
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administrator or the director of the facility may petition for court-ordered 

involuntary treatment. Id. § 7304(b)(1). For persons not already in 

involuntary treatment, “[a]ny responsible party may file a petition in the 

court of common pleas requesting court-ordered involuntary treatment for 

any person . . . for whom application could be made under [section 

304](a).” Id. § 7304(c)(1). 

As with section 303, the subject of the petition is entitled to assistance 

of counsel and a hearing on the petition. Id. § 7304(b), (c). If the person 

is currently committed, the hearing shall be held within five days. Id. § 

7304(b)(4). If the person is not currently committed, then the person shall 

be served a copy of the petition “at least three days before the hearing.” 

Id. § 7304(c)(4). Persons subject to such a hearing have the right “to the 

assistance of an expert in mental health,” the right to silence, “the right to 

confront and cross-examine all witnesses and to present evidence in his own 

behalf,” and the right to a private hearing upon request. Id. § 7304(e)(1)-

(4). “A stenographic or other sufficient record [of the hearing] shall be 

made[.]” Id. § 7304(e)(5). The court must impound the record, which may 

be “obtained or examined only upon the request of the person or his counsel 

or by order of the court on good cause shown.” Id. As with section 303, 

“[t]he hearing shall be conducted by a judge or by a [MHRO] and may be 

held at a location other than a courthouse when doing so appears to be in 

the best interest of the person.” Id. § 7304(e)(6). If the judge or MHRO 

finds by 
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clear and convincing evidence that the person is severely 

mentally disabled and in need of treatment and subject to 

subsection (a), an order shall be entered directing 

treatment of the person in an approved facility as an 

inpatient or an outpatient, or a combination of such 

treatment as the director of the facility shall from time to 

time determine.

Id. § 7304(f). Inpatient treatment may be ordered “only after full 

consideration has been given to less restrictive alternatives.” Id. 

As with section 303, if the determination is made by an MHRO, the 

person has a right to appeal the certification to the court of common pleas. 

Id. § 7109(b). This review process is identical to the section 303 

certification review process. Id.

Under section 305, the trial court may extend a period of involuntary 

treatment under section 304(g) or 305 for up to 180 days. Id. § 7305(a). 

To commit a person under section 305, the trial court must make the

requisite findings in section 304(a) and (b), and must further find “a need 

for continuing involuntary treatment as shown by conduct during the 

person’s most recent period of court-ordered treatment.” Id. Persons found 

dangerous to themselves under section 301(b)(2) are “subject to an 

additional period of involuntary full-time inpatient treatment only if [they] 

ha[ve] first been released to a less restrictive alternative.” Id. However, 

that requirement does not apply where the judge or MHRO determines “that 

such release would not be in the person’s best interest.” Id. As with 

sections 303 and 304, if the determination is made by MHRO certification, 

the person may seek review in the court of common pleas. Id. § 7109. 
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II. Civil Commitment History 

The trial court in this case urges affirmance based on what it 

describes, twice in a two-page opinion, as S.M.’s “20 year history of violent 

and aggressive behavior.” See 1925(a) Op. at 1; id. at 2. While the court 

states that “evidence was received” of that history, the record does not 

support that claim. While some references to S.M.’s history were made at 

both the May 19, 2016 MHRO hearing and the May 25, 2016 de novo

hearing, almost no actual evidence to that effect was introduced. Indeed, 

the basis for the trial court’s assertion appears to be a statement made by 

counsel for the County during oral argument at the latter hearing. See N.T., 

5/25/16, at 14 (“When she’s on medication, she’s not dangerous particularly 

to herself or others. But when she goes off the medication, Your Honor, she 

becomes violent. That’s the history – for about a 20-year history of 

violent and aggressive behavior.”) (emphasis added). 

Perhaps recognizing the problem with both the record below and the 

certified record in this Court, the County attached an appendix to its brief, 

which it describes as an “extensive history of [S.M.’s] involuntary 

commitments.” County’s Br. at 21, Appx. A. According to the County, this 

history of commitments was referenced at the MHRO hearing and before the 

trial court. The County also asserts that the trial court “properly took 

judicial notice of [this] history . . . , which it had access to via a secure 

electronic record system maintained by Allegheny County, and it expressly 

relied on said history in reaching it[s] determination.” County’s Br. at 21.
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It is well settled that “an appellate court is limited to considering only 

the materials in the certified record.” Commonwealth v. Preston, 904 

A.2d 1, 6 (Pa.Super. 2006). “Additionally, ‘[i]t is black letter law in this 

jurisdiction that an appellate court cannot consider anything which is not 

part of the record in the case.’” Commonwealth v. McBride, 957 A.2d 

752, 757 (Pa.Super. 2008) (quoting Commonwealth v. Martz, 926 A.2d 

514, 524-25 (Pa.Super. 2007)). “Materials that have only been included in 

briefs, but are not part of the record cannot be considered. . . . [because 

they] ‘are not evidence and cannot be considered part of the record . . . on 

appeal.’” Id. at 757-58 (quoting Commonwealth v. Stanton, 440 A.2d 

585, 588 (Pa.Super. 1992)).

At the MHRO hearing, S.M. did make some reference to her history of 

involuntary commitments. See MHRO Hr’g, 5/19/16, at 12:00-12:20.6 

Further, at the de novo hearing, the County Solicitor referred to a series of 

commitments, but none of those preceded 2014. See N.T., 5/25/16, at 14. 

Despite these representations, the County did not enter into evidence the 

history of S.M.’s involuntary commitments, either by testimony or 

documentary evidence. Indeed, neither the transcript of the de novo

hearing nor the audio recording of the MHRO hearing make any reference 

____________________________________________

6 The only record of this hearing is an audio recording. We therefore 

cite to the testimony by timecode.
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either to the so-called “case summary” attached to the County’s brief or to 

the information contained therein. 

Further, while the County argues that the trial court took judicial 

notice of this evidence, the record does not support this claim. The trial 

court never stated that it was taking judicial notice of S.M.’s involuntary 

commitment history, but rather merely stated that “evidence was received 

that [S.M.] has a 20-year history of violent and aggressive behavior.” 

1925(a) Op. at 1.7 We find no testimonial or documentary evidence in the 

record to support this statement. Accordingly, we will not consider either 

the “case summary” attached to the County’s brief as Appendix A, as it is 

extra-record “evidence,” or the assertion that S.M. has a 20-year history of 

violent and aggressive behavior.

III. Sufficiency of the Evidence

____________________________________________

7 We note that S.M. disputes the County’s claim that S.M. has a 20-

year history of violent and aggressive behavior, which, by itself, raises a 

concern as to whether this “history” was appropriate for judicial notice. 

“[D]isputed questions of fact are not within the domain of judicial notice.” 

Haber v. Monroe Cnty. Vocational-Technical School, 442 A.2d 292, 296 

(Pa.Super. 1982). Additionally, where a trial court takes judicial notice sua 

sponte, the court must put the parties on notice and give those parties an 

opportunity to object. See Pa.R.Evid. 201(e); M.P. v. M.P., 54 A.3d 950, 

955 (Pa.Super. 2012) (noting that where a trial court takes judicial notice of 

a fact sua sponte, under Rule 201(e) the parties are entitled “to be heard as 

to the propriety of taking judicial notice and the tenor of the matter 

noticed”). However, because there is no indication in the record that the 

trial court took judicial notice of S.M.’s commitment history, we need not 

address whether a trial court may take judicial notice of such a history. 
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We next address S.M.’s claim that the evidence presented to the trial 

court was insufficient to support her involuntary commitment. According to 

S.M., the County failed to present clear and convincing evidence that S.M. 

continued to pose a clear and present danger to herself, as the County did 

not present evidence that S.M. “had ever attempted suicide, mutilated 

herself, . . . attempted to mutilate herself,” or that she was unable to care 

for herself such that she “would be at risk of death, serious bodily injury, or 

physical debilitation if released.” S.M.’s Br. at 21-22 (referencing 50 P.S. § 

7301(b)(2)(i)-(iii)). S.M. argues the County merely showed that her 

treating physician’s major concern was her “resistance to taking her 

psychiatric medications at the prescribed level,” and claims that no one 

testified “that a decrease in the dosage of [S.M.]’s medication, or even the 

complete cessation of it, would cause withdrawal symptoms of such 

magnitude as to threaten serious bodily injury.” Id. at 22. Additionally, 

S.M. asserts that the County’s evidence – that in December 2015, S.M. went 

several days without eating, went several nights without sleep, and made 

racial slurs to other residents – similarly fails to show by clear and 

convincing evidence that S.M. posed a clear and present danger to herself.

As the trial court correctly noted, “[i]n reviewing a trial court order for 

involuntary commitment, we must determine whether there is evidence in 

the record to justify the court’s findings.” T.T., 875 A.2d at 1126. 

“Although we must accept the trial court’s findings of fact that have support 
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in the record, we are not bound by its legal conclusions from those facts.” 

Id.

A. Record Evidence of S.M.’s Mental Health History

For a person to be involuntarily committed under section 305 of the 

MHPA, the trial court must first make the required findings under 

subsections 304(a) and (b).8 See supra, at 6-8. Under subsection 

____________________________________________

8 Subsection (b), entitled “Procedures for Initiating Court-ordered 

Involuntary Treatment for Persons Already Subject to Involuntary 

Treatment,” provides as follows:

(1) Petition for court-ordered involuntary treatment 

for persons already subject to treatment under 

sections 303, 304 and 305 may be made by the 

county administrator or the director of the facility 

to the court of common pleas.

(2) The petition shall be in writing upon a form 

adopted by the department and shall include a 

statement of the facts constituting reasonable 

grounds to believe that the person is severely 

mentally disabled and in need of treatment. The 

petition shall state the name of any examining 

physician and the substance of his opinion 

regarding the mental condition of the person. It 

shall also state that the person has been given 

the information required by subsection (b)(3).

(3) Upon the filing of the petition the county 

administrator shall serve a copy on the person, 

his attorney, and those designated to be kept 

informed, as provided in section 302(c), including 

an explanation of the nature of the proceedings, 

the person’s right to an attorney and the services 

of an expert in the field of mental health, as 

provided by subsection (d).

(Footnote Continued Next Page)
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304(a)(2), “it shall be sufficient to represent, and upon hearing to 

reestablish, that the conduct originally required by section 301 in fact 

occurred, and the [the person’s] condition continues to evidence a clear and 

present danger to himself or others.” 50 P.S. § 7304(a)(2). This Court has 

held that the petitioner need not relitigate the initial commitment and that 

the trial court may “consider[] . . . a patient’s original commitment as 

contained in that patient’s commitment history . . . as long as the patient’s 

commitment history shows that the requisite behavior occurred in the past.” 

Commonwealth v. Romett, 538 A.2d 1339, 1342, 1343 (Pa.Super. 1988). 

If the patient challenges that original commitment, “the burden is on the 

patient to show that the original commitment was improper.” Id. at 1342.

At the commitment hearing, any evidence presented by the County 

must be received in “strict compl[iance] with the rules of evidence generally 

applicable to other proceedings which may result in an extended deprivation 

of an individual’s liberty.”9 In re Involuntary Commitment of Barbour, 

(Footnote Continued) _______________________

(4) A hearing on the petition shall be held in all cases, 

not more than five days after the filing of the 

petition.

(5) Treatment shall be permitted to be maintained 

pending the determination of the petition.

50 P.S. § 7304(b) (internal footnotes omitted).

9 The United States Supreme Court has emphasized that “civil 

commitment for any purpose constitutes a significant deprivation of liberty 

that requires due process protection.” Addington v. Texas, 441 U.S. 418, 

425 (1979).
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733 A.2d 1286, 1288 (Pa.Super. 1999). Here, the record suggests that the 

County did not introduce any evidence of S.M.’s initial section 302 or 303 

commitment. In fact, the County admitted that it did not have a copy of the 

section 302 or 303 petition that started the current series of commitments:

[COUNTY SOLICITOR]: And I do not see in here a copy 

– there was a petition. I know there was a petition, but I 

don’t see a copy of it in here, the 303. I don’t see a copy 

of the petition in here of the 303 which I believe was in 

September of 2014.

THE COURT: Can you explain to me how [S.M.] is a 

danger to herself or others?

[COUNTY SOLICITOR]: When she’s on medication, she’s 

not particularly dangerous to herself or others. But when 

she goes off the medication, Your Honor, she becomes 

violent. That’s the history -- for about a 20-year history of 

violent and aggressive behavior.

THE COURT: Okay, you didn’t say if that was in there. 

That’s what I’m saying. I don’t know.

I would just like to see something that said she was 

violent to herself or others.

He looked at it. It’s not in there I guess. Can you tell 

me that?

[COUNTY SOLICITOR]: Your Honor, I believe it’s on the 

electronic docket, the petition, the 302 or 303 petition. I 

don’t have a copy of it with me now. The one that led to 

this. Because the testimony here was even at the 

Pathways she had to go back because she was not taking -

- she went through a period since the last hearing of not 

taking medication on her own. She discontinued it on her 

own. When she stopped taking the medicine, she was 

lacking the ability to care for herself by not –

THE COURT: By not taking the medication.

N.T., 5/25/16, at 13-15. 
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The only reference that the trial court made to documentary evidence

was a “file” before it. Id. at 12. Assuming that the “file” referenced by the 

Court is in the certified record in this matter, we have not found the section 

302 or 303 petition therein.10 Rather, the record includes a series of section 

304 and 305 petitions, which offer no insight into S.M.’s prior history of 

commitments. Accordingly, we conclude that the trial court could not base 

its decision on S.M’s alleged 20-year commitment history or the 

circumstances of the initial commitment under section 302 or 303.

B. Whether the County Presented Sufficient Evidence to 

Support the Section 305 Commitment

We now must determine whether the evidence in the certified record 

was sufficient to support S.M.’s commitment. The burden is on the 

petitioner to “prove the requisite statutory grounds by clear and convincing 

evidence.” Romett, 538 A.2d at 1342. “Our Supreme Court has defined 

clear and convincing evidence as ‘testimony that is so clear, direct, weighty, 

and convincing as to enable the trier of fact to come to a clear conviction, 

without hesitation, of the truth of the precise facts in issue.’” In re S.T.S., 

Jr., 76 A.3d 24, 38 (Pa.Super. 2013) (quoting In re R.I.S., 36 A.3d 567, 

____________________________________________

10 As noted in above, the County stated at the May 25th hearing that 

this information might have been in the “electronic docket,” to which the 

trial court may well have had access. N.T., 5/25/16, at 14. However, there 

is no indication in the certified record or in the trial court’s opinion that it 

reviewed whatever section 302 or 303 petition that might have started this 

series of commitments.
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572 (Pa. 2011)). “[T]he clear and convincing evidence test ‘has been 

described as an “intermediate” test, which is more exacting than a 

preponderance of the evidence test, but less exacting than proof beyond a 

reasonable doubt.’” Id. (quoting Commonwealth v. Meals, 912 A.2d 213, 

219 (Pa. 2006)). Where a mental health review officer has made a 

recommendation, the trial court is to conduct a de novo review of that 

determination. Barbour, 733 A.2d at 1288.

This Court’s decision in Romett guides our review of a section 305 

involuntary commitment. There, we reviewed a section 305 recommitment 

that had been based on the appellant’s violent tendencies towards others. 

Romett, 538 A.2d at 1340. Specifically, the appellant originally had been 

committed “as a result of assaultive behavior towards family members,” and 

this commitment was “extended three times before the [section 305] 

hearing.” Id. At that hearing, the “appellant violently slapped a nurse 

across the face.” Id. at 1341. Appellant’s treating psychiatrist testified that 

“appellant had also recently shown assaultive behavior toward him.” Id. 

The treating psychiatrist testified that appellant had a mental illness 

“manifested in delusions, poor impulse control, and beliefs that others are 

‘out to get her.’” Id. Therefore, the treating psychiatrist testified that 

“cessation of appellant’s treatment would reasonably result in future 

assaultive behavior. . . . [and] appellant posed a danger to others rather 

than to herself.” Id. Based on this evidence, the trial court ordered 
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appellant involuntarily committed for 30 days of inpatient treatment, 

followed by 150 days of outpatient treatment.

We affirmed the trial court’s decision. Id. at 1343. In coming to that 

conclusion, we held that:

[F]or a person to be recommitted for an additional period 

of treatment, it need not be established that the person 

has inflicted or attempted to inflict serious bodily harm 

upon another within the past thirty days, as required for 

the original commitment. The Act specifically states that 

on recommitment it is not necessary to show that the 

patient committed an overt act within 30 days of the 

hearing. It is necessary however for the court to find that 

within the patient’s most recent period of 

institutionalization, the patient’s conduct demonstrated the 

need for continuing involuntary treatment, . . . i.e. his 

condition continues to evidence a clear and present danger 

to himself or others . . . .

Id. at 1341-42 (internal citations omitted). Based on this interpretation, we 

concluded that there was clear and convincing evidence that supported the 

trial court’s finding that Romett posed a clear and present danger to others, 

as Romett exhibited violent conduct which resulted in the initial 

commitment, continued to do so during the commitment period, and had a 

“diagnosis as a paranoid schizophrenic with delusions that others are 

threatening her, together with [a] prognosis that her assaultive behavior 

would continue without further treatment.” Id.

Here, in its Pennsylvania Rule of Appellate Procedure 1925(a) opinion, 

the trial court explained that involuntary commitment and treatment was 

appropriate because: (1) S.M. had a “20 year history of violent and 
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aggressive behavior; (2) in December 2015, S.M. discontinued her 

medications, after which S.M. did not eat for several days nor sleep for 

several nights; and (3) S.M. used racial slurs towards other facility residents.

1925(a) Op. at 1-2. We have already determined that the trial court 

received no proper evidence regarding either S.M.’s alleged history of 

aggressive and violent behavior or the circumstances that led to her initial 

commitment under section 303. Therefore, it could not use such information 

to support the commitment.

Further, the evidence actually received at the de novo hearing, 

including the audio recording of the MHRO hearing, failed to meet the clear 

and convincing standard. At the MHRO hearing, the treating psychiatrist’s 

primary complaint was that S.M. was not taking her medication in 

therapeutic doses. See MHRO Hr’g, 5/19/16, at 3:00-3:15. While the 

psychiatrist did testify that S.M. has a severe mental illness, specifically a 

schizoaffective bipolar disorder, the only symptoms he described were that 

S.M. believed (1) that her disease was better treated through homeopathic 

remedies rather than allopathic medicine, and (2) various hospital and state 

officials were conspiring and colluding with her mother to keep her 

involuntarily committed. Id. at 5:54-7:50. While the treating psychiatrist 

did testify that her illness and unwillingness to take her medication in 

therapeutic doses affected her judgment, id. at 7:54-8:10, he did not testify 

that S.M. posed a danger to herself or that there was “a reasonable 

probability that death, serious bodily injury or serious physical debilitation 
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would ensue within 30 days unless adequate treatment were afforded.” 50 

P.S. § 7301(b)(2)(i). Instead, the essence of his testimony was that S.M. 

would be better off taking her medications in therapeutic doses, and that the 

best way to ensure that she did so was through continued involuntary 

commitment.

The live testimony presented at the de novo hearing likewise did not 

meet the standard necessary for S.M.’s involuntary commitment. The 

County’s only witness at the hearing was Kelly Mullen, the program director 

at Pathways. While Mullen testified that when Pathways transferred S.M. 

back to WPIC in December 2015, S.M. discontinued her medication and “was 

not sleeping for nights . . . in a row” nor “eating for several days in a row,” 

the only other physical manifestation to which Mullen testified was S.M.’s 

use of “racial slurs to other residents [in] the facility which was starting to 

create an atmosphere of hostility.” N.T., 5/25/16, at 4-5. Mullen also 

testified that S.M. was not taking therapeutic doses of her medication 

prescribed by Dr. Chengappa. Id. at 7-8. This information was insufficient 

to support the trial court’s conclusion that S.M. should be involuntarily 

committed under section 305 of the MHPA. 

In sum, we conclude that the County did not show by clear and 

convincing evidence that S.M. posed a clear and present danger to herself 

within the meaning of section 304(a), 50 P.S. § 7304(a). While we 

appreciate the challenges posed to the effective treatment of persons with 

long histories of serious mental illness, the serious deprivations of liberty 
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authorized by the MHPA demand that such deprivations be justified through 

strict compliance with statute’s substantive and procedural requirements.

11

Order reversed.12

Judgment Entered.

____________________________________________

11 The County dedicates a substantial portion of its brief to arguing it 

need not show that the patient engaged in “new, patently dangerous 

conduct to justify an extension of the patient’s involuntary commitment.” 

County’s Br. at 11. According to the County, section 305’s conduct 

requirement is virtually synonymous with the requirement that the patient’s 

“condition continues to evidence a clear and present danger to himself or 

others” under section 304(a). Id. at 12 (quoting Romett, 538 A.2d at 

1341). While we agree with the County that our courts have not fully 

explicated section 305’s conduct requirement, because we conclude that the 

County failed to meet its burden of proof under section 304(a), we need not 

address the meaning of “conduct” under section 305.

12 We do not make this determination lightly, particular due to Dr. 

Chengappa’s concerns about S.M.’s medication regimen and Mullen’s 

concerns regarding S.M.’s unusual behavior. Our ruling, however, does not 

preclude the County from filing a new petition for involuntary commitment, 

at which time the County may present appropriate evidence supporting 

involuntary commitment under the MHPA.
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Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/15/2017