J-A16031-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN RE: PETITION OF: J.M.Y.,

ALLEGHENY COUNTY DEPARTMENT OF 

BEHAVIORAL HEALTH AND THE 

PENNSYLVANIA STATE POLICE

APPEAL OF: J.M.Y.

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 No. 1323 WDA 2015

Appeal from the Order March 10, 2015

in the Court of Common Pleas of Allegheny County

Orphans’ Court at No(s): CC 1419 of 2014

BEFORE: SHOGAN, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 16, 2016

J.M.Y. (Appellant) appeals from the order entered on March 10, 2015, 

which denied his petition for expunction of mental health records and 

restoration of firearms rights. We affirm.

On the evening of September 21, 2012, Appellant was involuntarily 

committed to Western Psychiatric Institute and Clinic (WPIC), pursuant to 50 

P.S. § 7302 (section 302) of the Mental Health Procedures Act (MHPA). 

On September 24, 2012, Dr. Frank DiPietro, an attending psychiatrist 

at WPIC, filed an application for extended involuntary treatment pursuant to 

50 P.S. § 7303 (section 303) of the MHPA, noting that Appellant’s 

“significant dangerous/impulsive behavior necessitated continued stay.” 

Application for Extended Involuntary Treatment, 9/24/2012. On September 

25, 2012, a certification was issued pursuant to section 303, ordering 

Appellant into outpatient treatment for a period not to exceed 20 days. 
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Certification, 9/25/2012. Appellant was released from the hospital on 

September 25, 2012. As a consequence of his involuntary commitments, 

Appellant was barred from possessing a firearm under 18 U.S.C. 

§ 922(g)(4).1

On November 24, 2014, Appellant filed a petition, pursuant to 18 

Pa.C.S. § 6105(f)(1) and 18 Pa.C.S. § 6111.1(g)(2), seeking to vacate and 

expunge his involuntary commitment records, and restore his rights to own 

a firearm. A hearing was held on January 8, 2015. On March 10, 2015, the 

orphans’ court denied Appellant’s petition. Appellant filed exceptions to the 

court’s order, which were denied by operation of law. This timely-filed 

appeal followed. The orphans’ court did not order Appellant to file a 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925, 

and none was filed. The orphans’ court filed an opinion on October 17, 

2015.

On appeal, Appellant claims that the orphans’ court erred in denying 

his petition, arguing that there was insufficient evidence to support his 

section 302 commitment. Appellant’s Brief at 20-22. Appellant also assails 

the validity of his section 303 commitment, contending that commitment 

 

1 Appellant’s commitments also precluded him from firearm possession 

under 18 Pa.C.S. §§ 6105 (a)(1) and (c)(4). On July 28, 2015, the orphans’ 

court issued an order restoring Appellant’s right to possess a firearm under 

these subsections; however, this order does not affect his federal 

ineligibility. 
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failed to meet the numerous procedural safeguards of the MHPA. Id. at 12-

19. 

“Our well-settled standard of review in cases involving a motion for 

expunction is whether the trial court abused its discretion.” In re Keyes, 83 

A.3d 1016, 1022 (Pa. Super. 2013). Before we consider Appellant’s 

substantive claims, we must first determine whether the orphans’ court had 

jurisdiction to consider Appellant’s expunction petition.

Appellant was initially committed involuntarily under section 302, 

which provides in relevant part as follows.

(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.

* * *

(2) Emergency Examination Without a Warrant.--

Upon personal observation of the conduct of a 

person constituting reasonable grounds to believe 

that he is severely mentally disabled and in need of 

immediate treatment, any physician or peace officer, 

or anyone authorized by the county administrator 

may take such person to an approved facility for an 

emergency examination. Upon arrival, he shall make 

a written statement setting forth the grounds for 

believing the person to be in need of such 

examination.

(b) Examination and Determination of Need for 

Emergency Treatment.--A person taken to a facility shall be 
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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 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. In no event shall a person be

accepted for involuntary emergency treatment if a previous 

application was granted for such treatment and the new 

application is not based on behavior occurring after the earlier 

application.

(c) Notification of Rights at Emergency Examination.--

Upon arrival at the facility, the person shall be informed of the 

reasons for emergency examination and of his right to 

communicate immediately with others. He shall be given 

reasonable use of the telephone. He shall be requested to furnish 

the names of parties whom he may want notified of his custody 

and kept informed of his status. The county administrator or the 

director of the facility shall:

(1) give notice to such parties of the whereabouts 

and status of the person, how and when he may be 

contacted and visited, and how they may obtain 

information concerning him while he is in inpatient 

treatment; and

(2) take reasonable steps to assure that while the 

person is detained, the health and safety needs of 

any of his dependents are met, and that his personal 

property and the premises he occupies are secure.

(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:

* * *
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(2) a certification for extended involuntary 

emergency treatment is filed pursuant to section 303 

of this act.

50 P.S. § 7302(a)-(d) (footnotes omitted).

During his 302 commitment, WPIC psychiatrists certified that Appellant 

was in need of extended treatment. Extended involuntary commitment is 

governed by section 303 of the MHPA.

Under Section 7303, when a facility deems a patient to be in 

need of additional care beyond the 120 hours of emergency care 

authorized by Section 7302, an application to extend treatment 

may be filed in the trial court and an informal hearing held within 

24 hours of the filing of the application. 50 P.S. § 7303(a)-(b). 

After the hearing, if the judge or mental health review officer 

certifies the patient as severely mentally disabled, he may 

authorize up to an additional twenty days of treatment. 50 P.S. 

§ 7303(c), (f). When this certification is made by a mental 

health review officer as opposed to a judge, the patient 

may petition the trial court to review the certification. 50 

P.S. § 7303(g). A hearing is to be held within 72 hours of the 

filing of that petition. Id.

In re R.F., 914 A.2d 907, 914 (Pa. Super. 2006) (emphasis added).

Appellant brought his petition for expunction pursuant to subsection 

6111.1(g) of the Uniform Firearms Act, which provides as follows.

(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 
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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. ...

(3) The Pennsylvania State Police shall expunge all 

records of an involuntary commitment of an 

individual who is discharged from a mental health 

facility based upon the initial review by the physician 

occurring within two hours of arrival under section 

302(b) of the Mental Health Procedures Act and the 

physician’s determination that no severe mental 

disability existed pursuant to section 302(b) of the 

Mental Health Procedures Act. The physician shall 

provide signed confirmation of the determination of 

the lack of severe mental disability following the 

initial examination under section 302(b) of the 

Mental Health Procedures Act to the Pennsylvania 

State Police.

18 Pa.C.S. § 6111.1(g)(2), (3) (footnotes omitted).

In his petition to the orphan’s court, Appellant sought expunction of 

both his section 302 commitment records and his commitment records under 

section 303. However, this Court has interpreted the plain language of 

subsection 6111.1(g) to provide “no opportunity to obtain expunction of 

mental health records pursuant to a commitment under [section 303].” In 

re Jacobs, 15 A.3d 509, 511 (Pa. Super. 2011) (holding, inter alia, that 

subsection 6111.1(g) “only imbues the lower court with jurisdiction to review 

commitments under [section 302]”).2

 

2 The facts of Jacobs are similar to those set forth herein. In May of 2009, 

Jacobs sought expunction, pursuant to section 6111.1(g), of the records of 

his 2004 involuntary commitment. Finding that the section 302 expunction 
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The Jacobs court also held that, even if an appellant is entitled to 

expunction under section 302, expunction cannot occur if the appellant was 

also involuntarily committed under section 303. Id. Further, the Court held 

that an appellant seeking expunction and restoration of firearms rights 

cannot “bootstrap” review of a section 303 commitment to a petition seeking 

review of a section 302 commitment under section 6111.1(g) because the 

section 303 commitment is “an entirely separate judicial proceeding, 

complete with its own avenue of appeal.” Id. (footnote omitted).

Here, Appellant’s initial section 302 commitment was extended under 

section 303 pursuant to the certification recommending outpatient treatment 

signed on September 25, 2012, the date of Appellant’s discharge. Pursuant 

to the MHPA, Appellant was entitled to petition the court of common pleas 

for review of his 303 commitment. 50 P.S. § 7303(g). He failed to do so.3 

 

could not move forward because Jacobs had also been committed under 

section 303 (which was not subject to expunction under section 6111.1(g)), 

the Court determined that his petition and appeal were moot. Jacobs, 15 

A.3d at 511.

3 While there is no timeframe in section 303(g) outlining when a petition for 

review to the court of common pleas must be filed, 42 Pa.C.S. § 5571, which 

governs appeals generally, provides for a 30-day appeal period. See 42 

Pa.C.S. § 5571 (“Except as otherwise provided in subsections (a) [relating to 

appeals to the appellate courts] and (c) [outlining exceptions not applicable 

herein] and in section 5571.1 [...], an appeal from a tribunal or other 

government unit to a court or from a court to an appellate court must be 

commenced within 30 days after the entry of the order from which the 

appeal is taken, in the case of an interlocutory or final order.”) Our 

Supreme Court has observed that a mental health review officer is “a law-
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Accordingly, the orphan’s court was without jurisdiction to review his section 

303 commitment. 

Moreover, under Jacobs, Appellant may not now bootstrap a request 

for review of his section 303 commitment to his petition for section 302 

review under section 6111.1. Further, because he was involuntarily 

committed under both sections, Appellant’s request for expunction of his 302 

commitment cannot be granted. Jacobs, 15 A.3d at 511. Thus, pursuant to 

the binding precedent set forth in Jacobs, Appellant’s petition and appeal 

are moot. Id. Accordingly, we affirm the orphans’ court’s order.

Order affirmed.

Judge Olson joins.

Judge Shogan files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016

 

trained, quasi-judicial officer who prepares a certification of findings ‘as to 

the reasons that extended involuntary treatment is necessary and a 

description of the treatment to be provided[.]’” In re K.L.S., 934 A.2d 1244, 

1247-48 (Pa. 2007). Accordingly, a proceeding before a mental health

review officer is an appeal from a tribunal or other government unit subject 

to the 30-day appeal period under section 5571.