In Re: Vencil, N. Appeal of: Vencil, N.

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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),2 for 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

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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?

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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.

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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

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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.

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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

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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

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