J-S50024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.W.

APPEAL OF: B.W.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 289 WDA 2019

Appeal from the Order Entered February 13, 2019

In the Court of Common Pleas of Blair County Civil Division at No(s): 

2018 GN 2882

BEFORE: LAZARUS, J., MURRAY, J., and COLINS, J.*

DISSENTING MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 1, 2019

I respectfully dissent. I believe the majority erred by finding an act in 

furtherance of a threat to commit harm a necessary condition, rather than a 

sufficient condition, for involuntary commitment under section 302 of the 

MHPA. Even assuming, arguendo, such evidence is required, I believe the 

majority further erred by failing to afford B.W.’s treating physicians the 

deference due under In re Vencil, 152 A.3d 235 (Pa. 2017)—binding 

precedent, which, if properly applied, would require this Court to conclude

B.W.’s involuntary commitment was supported by sufficient evidence. 

B.W.’s sole issue on appeal implicates various subsections of the MHPA

and the Pennsylvania Uniform Firearms Act (UFA), which I briefly summarize 

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* Retired Senior Judge assigned to the Superior Court.
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herein. The MHPA serves the dual purposes of assuring that “those who are 

severely mentally disabled will be provided with the medical care they need, 

for their own health and safety[,]” while simultaneously providing a 

mechanism “to protect the welfare of others from the mentally ill.” In re R.F., 

914 A.2d 907, 914 (Pa. Super. 2006). To facilitate these goals, section 302 

of the MHPA provides the legal process by which physicians may involuntarily 

commit an individual for up to 120 hours upon finding “reasonable grounds to 

believe” he or she is “severely disabled and in need of immediate treatment.” 

50 P.S. § 7302(a). 

Involuntary commitment is only permitted under circumstances where 

the treating physician finds the individual in question “severely mentally 

disabled within the meaning of section 301(b)” and “in need of medical 

treatment.” 50 P.S. § 7302(b). To classify an individual as “severely mentally 

disabled” under section 301(b), a physician must find the individual presents 

“a clear and present danger of harm to others or to himself,” which “may be 

demonstrated by proof that the person has made threats of harm and has 

committed acts in furtherance of the threat to commit harm.” 50 P.S. § 7301 

(a)–(b) (emphasis added). 

Involuntary commitment under section 302 precludes an individual from 

possessing a firearm or a license to carry a firearm. See 18 Pa.C.S.A. § 

6105(c)(4) (prohibiting any “person who has been . . . involuntarily committed 

to a mental institution for inpatient care and treatment under section 302” 
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from possessing firearms). Section 6111.1(g)(2) of the UFA provides a

mechanism for individuals who have been involuntarily committed under 

section 302 to have the record of their commitment expunged,1 stating as 

follows:

A person who is involuntarily committed pursuant to section 302 

of the [MHPA] 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.

18 Pa.C.S.A. 6111.1(g)(2). If an individual is prohibited from possessing a 

firearm because of a prior involuntary commitment under section 302, 

expungement under section 6111.1(g)(2) restores that right. Vencil, supra

at 246 n.10 (listing expungement of 302 commitment as, inter alia, a

“mechanism to . . . obtain reinstatement of . . . firearms rights.”). 

Ordinarily, we evaluate the denial of a motion for expungement under

an abuse of discretion standard. Commonwealth v. Smerconish, 112 A.3d 

1260, 1263 (Pa. Super. 2015) (“Our well-settled standard of review in cases 

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1 We note firearms rights may be restored without expungement if the 

individual applies for, and the court grants, relief under 18 Pa.C.S.A. 

6105(f)(1). See 18 Pa.C.S.A. 6105(f)(1) (permitting such relief as the court 

deems appropriate “if the court determines that the applicant may possess a 

firearm without risk to the applicant or any other person.”); see also In re 

Vencil, supra at 246 n.10 (listing section 6105(f)(1) as alternative to seek 

restoration of firearms right, independent of expungement). In the instant 

appeal, B.W. seeks restoration of his firearms rights solely by means of 

expungement under section 6111.1. See Brief of Appellant, at 12. 
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involving a motion for [expungement] is whether the trial court abused its 

discretion.”) However, where a petitioner seeks expungement of his or her 

involuntary commitment under section 302 pursuant to 18 Pa.C.S.A. § 

6111.1(g)(2), the statutory scheme summarized above presents a pure 

question of law, requiring de novo review. See Vencil, supra at 237.

Our Supreme Court explicated the standard of review for such petitions 

as follows:

[U]nder section 6111.1(g)(2), a challenge to the sufficiency of the 

evidence to support a 302 commitment presents a pure question 

of law, and the court’s sole concern is whether, based on the 

findings recorded by the physician and the information he or she 

relied upon in arriving at those findings, the precise, legislativelydefined prerequisites for a 302 commitment have been satisfied 

and are supported by a preponderance of the evidence. We

emphasize that the trial court’s review is limited to the findings 

recorded by the physician and the information he or she relied 

upon in arriving at those findings, and requires deference to the 

physician, as the original factfinder, as the physician examined 

and evaluated the individual in the first instance, was able to 

observe his or her demeanor, and has particularized training, 

knowledge and experience regarding whether a 302 commitment 

is medically necessary.

Id. 

As with traditional sufficiency challenges, a challenge to the sufficiency 

of the evidence underpinning a commitment pursuant to section 302 requires 

courts to view “the facts of record in the light most favorable to the original 

decision-maker . . . to determine whether the requisite standard of proof has 

been met.” Id. at 243. The substantial deference owed by a reviewing court 

to treating physicians stems from their “specialized training or knowledge that 
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makes them uniquely qualified to reach the findings and conclusions the 

General Assembly entrusted them to make.” Id. Therefore, I review, in the 

light most favorable to the treating physician, “the physician’s findings, made 

at the time of the commitment, to determine whether the evidence known by 

the physician at the time, as contained in the contemporaneously-created 

record, supports the conclusion that the individual required commitment 

under one or more of the specific statutorily defined circumstances.” Id. at 

233; see also id. (“Section 6111.1(g)(2) does not . . . authorize a trial court 

to ‘redecide the case,’ operating as a ‘substitute’ for the physician who 

originally decided the 302 commitment was medically necessary.”) (quoting 

with disfavor In re Vencil, 120 A.3d 1028, 1036 (Pa. Super. 2015)2). 

Instantly, I agree with the learned majority as to which facts are 

pertinent to the matter at hand. See Majority Memorandum at 1–3. 

Specifically, the majority quotes the following three treating physicians: (1) 

Terry Ruhl, M.D., who diagnosed B.W.; (2) Joseph Sumereau, D.O., who 

petitioned for B.W.’s commitment; and (3) and Mercedes Boggs, M.D., who 

involuntarily committed B.W. pursuant to section 302. Id. at 2–3. Their

reports, respectively, state as follows:

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2 This citation from In re Vencil, 152 A.3d 235 (Pa. 2017) references our 

Supreme Court quoting this Court’s decision with disfavor. All citations to 

Vencil in this dissenting memorandum using the short citation supra refer to 

the Supreme Court opinion, not the overruled Superior Court decision. 
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[Dr. Ruhl stated] Anxiety and anger feelings. Making credible 

threats of violence against a co-worker but is here for help. 

Girlfriend has concerns for his safety.

Crisis here now—expect they will recommend inpatient treatment, 

involuntary if necessary. UPMC police here for safety, but he has 

made no threats against staff. 

. . .

[Dr. Sumereau stated] I, Dr. Sumereau, was present while 

patient stated that he would strangle another person to death. He 

then gave the name of the intended victim. Patient stated that he 

was not sure when or where he would perform this act, but he 

would do it next time he saw the person. 

. . .

[Dr. Boggs stated] [B.W.] is homicidal towards his coworker and 

admits to stating that he would strangle him. [B.W.] is very angry 

and agitated, danger to others. Not receptive to voluntary 

admission. 

Id. (quoting Appellant’s Exhibit 1, at 1, and Appellee’s Exhibit 1, at 3, 7).

My analysis of B.W.’s claim, however, diverges from the majority in two

key respects: (1) I find proof of “acts in furtherance of [a] threat to commit 

harm” to be a sufficient condition, rather than a necessary one, for supporting 

a physician’s decision to involuntarily commit an individual under section 302; 

and (2) I believe, viewed in the light most favorable to the treating physicians, 

the evidence underpinning the decision to commit B.W. rests on sufficient 

evidence, as B.W.’s threats, which contained both a target and method for 

committing homicide, constitute acts in furtherance of a plan to harm another 

under the MHPA.
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The majority’s decision hinges on the conclusion that B.W. “did not 

‘commit an act in furtherance of the threat to commit harm,’ as prescribed in 

50 P.S. 7301(b).” Majority Memorandum, at 9. This conclusion rests on a 

misreading of section 301(b)(1), which states, in relevant part, “[f]or the 

purpose of this section, a clear and present danger of harm to others may be 

demonstrated by proof that the person has made threats of harm and has 

committed acts in furtherance of the threat to commit harm.” 50 P.S. 7301(b)

(emphasis added). 

Regarding the necessity of “acts in furtherance” under section 301, this 

Court has previously stated as follows:

We emphasize that the [MHPA] does not require “threats of harm” 

and commission of “acts in furtherance of the threat to commit 

harm” as a condition precedent for finding “clear and present 

danger.” Rather, the [MHPA] specifies that the “threats and acts” 

formula may, not must, be used to demonstrate dangerousness.

Since the statutory language does not dictate that a petitioner use 

only “threats and acts” to show “clear and present danger,” we 

conclude that other means can also be used.

Commonwealth v. Helms, 506 A.2d 1384, 1388 (Pa. Super. 1986)

(emphasis added). Consequently, I believe the majority erred by holding acts 

in furtherance of a threat to commit harm to be a necessary condition for 

finding the underlying involuntary commitment supported by sufficient 

evidence. 

Even assuming, arguendo, such evidence is required under section 302, 

I believe B.W.’s statements to his treating physicians, viewed in the light most 
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favorable to those physicians, constitute an “act in furtherance,” thus 

rendering B.W.’s commitment supported by sufficient evidence. 

Properly interpreting the phrases “in the light most favorable” and “acts 

in furtherance” is essential to the resolution of B.W.’s appeal. “In the light 

most favorable” is a term of art with a precise meaning. See Vencil, supra

at 242. When reviewing the evidence “in the light most favorable to the 

physician as the original decision-maker[,]” id. at 237, we are required to 

afford those physicians “the benefit of all reasonable inferences to be drawn 

from the evidence” as a matter of law. Commonwealth v. Widmer, 744 

A.2d 745, 751 (Pa. 2000). Likewise, under the MHPA, the phrase “acts in 

furtherance” refers to a sufficient condition for finding an individual to be “a 

clear and present danger of harm to others[.]” See 50 P.S. 7301(b)(1); see 

also Helms, supra at 1388.

This Court has issued several opinions outlining the contours of an “act 

in furtherance” under the MHPA, both in terms of threats to others and threats 

to the self, including: (1) picking up a cane and verbally threatening the staff 

of a boarding home, see In re R.D., 739 A.2d 548, 558 (Pa. Super. 1999); 

(2) stating “[I] might as well get a scope and a rifle and get rid of the problem, 

my soon-to-be-ex wife” before purchasing a rifle scope, see In re Woodside, 

699 A.2d 1293, 1297 (Pa. Super. 1997); and (3) searching the internet for

information on how to commit suicide, see In re R.F., 914 A.2d 907, 914 (Pa. 

Super. 2006); see also Smerconish, supra at 1264 (“His online research 
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seeking painless methods of committing suicide constituted an act in 

furtherance of the threat to commit harm.”). These opinions are tied together 

by a common thread—in each, this Court found an individual to have 

committed an act in furtherance of a threat by either identifying his or her

chosen means to harm a life or searching for means to do so. See R.D., 

supra at 558; Woodside, supra at 1297; R.F., supra at 914; and 

Smerconish, supra at 1264.

Here, B.W. told two of the three physicians involved in his commitment 

that he identified a co-worker as his target and had chosen strangulation as 

the means by which he intended to kill that target. See Majority Memorandum 

at 2–3. Those physicians found B.W.’s threats credible. Id. I see no reason 

to find the evidence insufficient merely because B.W. promised to make good 

on his threats with his hands as opposed to a cane or a scoped rifle. See 

R.D., supra at 558; see also Woodside, supra at 1297. Moreover, I find 

nothing in the MHPA to warrant such divergent outcomes between section 

7301(b)(1) and section 7301(b)(2), such that searching for a method of 

suicide constitutes an act in furtherance, while settling on a target and method 

for homicide fails to qualify as such. 50 P.S. 7301; see R.F., supra at 914; 

see also Smerconish, supra at 1264. Therefore, I believe these 

statements, in and of themselves, constitute an act in furtherance of a threat 
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to commit harm under both section 301 and binding precedent.3 R.D., supra

at 558; Woodside, supra at 1297; R.F., supra at 914; and Smerconish, 

supra at 1264. 

I therefore conclude “the evidence known by the physician[s] at the 

time, as contained in the contemporaneously-created record, supports the 

conclusion that [B.W.] required commitment.” Vencil, supra at 233. To hold 

otherwise is to impermissibly “re[-]decide the case, operating as a substitute 

for the physician who originally decided the 302 commitment was medically 

necessary.” See id. at 233 (quotation omitted).

Consequently, I respectfully dissent.

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3

I find unpersuasive the majority’s reliance on Interest of K.M., 1677 MDA 

2018 (Pa. Super. July 17, 2019) (unpublished memorandum). Majority 

Memorandum, at 10–12. Not only is K.M. non-precedential, it is premised on 

the assumption that an act in furtherance is a necessary condition for 

commitment under section 302. Compare K.M., supra at 8 (emphasis 

added) (“[T]o find that an individual presents a clear and present danger 

either to himself or others, the evidence must demonstrate that the 

individual’s threats to commit harm were accompanied by an act in 

furtherance of the threat to commit harm.”) with 50 P.S. § 7301(b) (emphasis 

added) (“For the purpose of this section, a clear and present danger of harm 

to others may be demonstrated by proof that the person has made threats of 

harm and has committed acts in furtherance of the threat to commit harm.”). 

Furthermore, the Court’s decision in K.M. does not appear to afford the 

treating physicians the deferential review required by Vencil. See K.M., 

supra at 9 (making no mention in legal analysis of viewing evidence available 

prior to commitment in the light most favorable to treating physicians). Lastly, 

K.M. is factually distinguishable from the instant appeal; whereas B.W. 

concretely identified both a means to kill and a target, K.M appears to only 

have vaguely expressed suicidal ideations. See id. (“The record reveals only 

that [K.M.] at most made certain statements at the clinic that led the clinic’s 

staff to believe he was harboring suicidal ideations.”).