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),2for 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 

____________________________________________

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?

____________________________________________

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.

____________________________________________

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 

____________________________________________

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.

____________________________________________

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 

____________________________________________

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