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decided: April 22, 1975.


Appeal from order of Court of Common Pleas of Northampton County, Oct. T., 1973, No. 71, in case of Commonwealth of Pennsylvania ex rel. Charles Finken, Jr., v. John W. Roop, Administrator of Allentown State Hospital.


Margaret H. Poswistilo, Assistant Public Defender, for relator, appellant.

Renald S. Baratta, Assistant Solicitor, with him Andrew L. Herster, Jr., Solicitor, and Malos, Baurkot & Baratta, and Alan B. McFall, Assistant District Attorney, and Charles H. Spaziani, District Attorney, for appellee.

Watkins, P.j., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Concurring Opinion by Cercone, J. Dissenting Opinion by Van der Voort, J. Watkins, P. J., and Price, J., join in this dissenting opinion.

Author: Hoffman

[ 234 Pa. Super. Page 159]

Appellant challenges the constitutionality of § 406 of the Pennsylvania Mental Health and Mental Retardation Act of 1966*fn1 under which he had been committed from November 5, 1973, until May, 1974.*fn2

On January 19, 1970, appellant pleaded guilty to charges of sodomy and corrupting the morals of a minor. Pursuant to § 4410 of the Mental Health Act,*fn3 appellant was again committed to Allentown State Hospital for a ninety-day period commencing February 13, 1970. On May 14, 1970, the commitment order was indefinitely extended. Appellant was released from Allentown State Hospital on March 12, 1973. At the time appellant was discharged, Dr. Bischoff, a psychiatrist at the hospital, filed a report concluding that appellant no longer required confinement in a mental institution. Dr. Bischoff's report did state that appellant needed a strong structure with rigid control, but she felt that probation would provide some of that structure. On April 9, 1973, appellant was sentenced to two years' probation on the sodomy and corruption charges. As a condition of his probation, appellant was required to undergo regular treatment.

[ 234 Pa. Super. Page 160]

Dr. Ovitz, the psychiatrist in charge of the Mental Health Agency in Easton, examined the appellant for one hour on July 9, 1973. Dr. Ovitz concurred in the diagnosis made at Allentown State Hospital that appellant suffered from sexual deviation, homosexuality, schizophrenic reaction of a "chronic undifferentiated type." The trial judge received this report on August 31, 1973, and concluded that appellant was "a dangerous individual and should not be walking the streets." The judge issued a bench warrant and instructed parole officials to take appellant into custody. The Pennsylvania Board of Probation and Parole never requested that appellant's probation be terminated. Nevertheless, appellant was incarcerated as a probation violator in Northampton County Prison on September 10, 1973. A hearing was held on September 19, 1973, and appellant was ordered to remain in confinement until the next hearing.

On October 24, 1973, Thomas Cavanaugh, Warden of Northampton County Prison, filed a petition under § 408 of the Mental Health and Retardation Act, supra, which provides for the commitment of persons charged with a crime and detained in a penal or correctional institution. The following day, a hearing was held on a habeas corpus petition filed by appellant. The Parole Board and the District Attorney informed the court that appellant was not guilty of any technical probation violation and therefore could not be detained further. The court granted appellant's petition for habeas corpus, and ordered Northampton County Prison to release the appellant. Appellant's discharge obviously foreclosed continuance of commitment proceedings under § 408. The District Attorney, however, moved to amend the petition so that the Commonwealth could proceed under § 406, providing for civil commitment. Appellant, therefore, had notice of the petition for one day, but had never received a copy. The Commonwealth then requested that the court hold a hearing to determine whether appellant should be committed

[ 234 Pa. Super. Page 161]

    for a period not to exceed ten days during which he would undergo examination and observation. Defense counsel objected to the Commonwealth's motions, alleging inadequate notice, but the court ordered that the hearing proceed, pursuant to § 406 (a) (4) (ii), to determine whether appellant should be committed for ten days.

Dr. Ovitz testified and repeated the substance of the report he had prepared on July 9, 1973. Dr. Ovitz had attempted to interview the appellant on October 24, 1973, but was informed that appellant would not cooperate on advice of counsel. Dr. Bischoff also testified and repeated her evaluation of March 12, 1973, when the appellant was discharged from Allentown State Hospital. Dr. Bischoff testified further that appellant belonged in a "Halfway House" and did not require confinement in a mental institution. Following the close of testimony, the court ordered that appellant be sent to Muhlenberg Medical Center. Two physicians were directed to examine the appellant and report their findings and recommendations to the court within ten days.

A civil commitment hearing was held before Judge Grifo on November 5, 1973, for the purpose of receiving the report of the examining physicians. Appellant's counsel was then given a copy of Warden Cavanaugh's petition for the first time. Defense counsel objected to the hearing on the ground that the initial hearing at which appellant was ordered committed for ten days was void because appellant had not received adequate notice. Counsel also contended that even if appellant had been afforded proper notice of the October 25 and November 5 hearings, appellant was not prepared to proceed because an October 24, 1973, petition requesting the appointment of an independent psychiatric expert was outstanding. President Judge Palmer had not yet acted on appellant's petition because he had to research the legal problems attendant to appellant's request for confidentiality. Appellant's objections were overruled.

[ 234 Pa. Super. Page 162]

Dr. Rowley, who had examined appellant at the Muhlenberg Medical Center, testified that appellant posed a greater danger to himself than he did to the community at large. Following Dr. Rowley's testimony, Judge Grifo ordered appellant committed to Allentown State Hospital for a period of six months. Immediately thereafter, the court denied a habeas corpus petition which appellant had filed on October 30, 1973. This appeal was taken from the denial of that petition.*fn4

Appellant contends that the Commonwealth failed to comply with the terms of the Pennsylvania Civil Commitment Statute, 50 P.S. § 4406,*fn5 and thus unlawfully committed

[ 234 Pa. Super. Page 163]

    appellant to Allentown State Hospital. Appellant also argues that the statute fails to provide the procedural and substantive due process required by the Fourteenth Amendment. In recent years, the courts of this Commonwealth, the federal courts, and the commentators, have given increasing attention to the problem of defining what process must constitutionally be afforded to persons not strictly criminal defendants: juveniles, persons convicted under habitual sexual offender or sexual psychopath statutes, persons mentally incompetent to stand criminal trial, persons acquitted of criminal charges by reason of insanity, defective delinquents, and persons civilly committed. The thrust of judicial development in this area has been the recognition that commitment involves a major curtailment of individual liberty. Therefore, a statute authorizing such an involuntary infringement of a basic personal right is subject to and regulated by the Due Process Clause of the Fourteenth Amendment. In the present case, we must first determine

[ 234 Pa. Super. Page 164]

    whether the Commonwealth complied with § 406 in committing appellant. We then must decide the broader questions presented: whether § 406 of the Mental Health and Retardation Act provides an individual the procedural and substantive due process required by the Fourteenth Amendment.

I. Alleged Failure to Comply with § 406

A. Inadequacy of the Petition

Under § 406(a), a petition for civil commitment may be filed "[w]henever a person is believed to be mentally disabled, and in need of care or treatment by reason of such mental disability." Section 406(a)(1) provides that the petition may be made by "an authorized agent of a governmental . . . agency." Section 406(a)(2) requires that "[t]he petition shall set forth the facts upon which the petitioner bases his belief of mental disability and the efforts made to secure examination of the person by a physician." (Emphasis added). The petition filed in the present case is inadequate.

Warden Cavanaugh is clearly a proper party to file a commitment petition. The petition, however, avers no facts to explain why the petitioner believed appellant to be mentally disabled, and thus fails to comply with § 406 (a)(2). It is true that the petition was originally filed under § 408, providing for the commitment of persons charged with a crime and detained in a penal or correctional institution. It is also true that § 408 does not require the petitioner to set forth the facts upon which he bases his belief that the person is mentally disabled. The appellant, however, vigorously objected when the Commonwealth asked for leave to amend the petition into a civil commitment petition under § 406. The trial court granted the motion and proceeded to hold the preliminary hearing to determine whether appellant should be confined for a ten-day period to undergo examination. Warden Cavanaugh's petition was treated as a civil commitment

[ 234 Pa. Super. Page 165]

    petition throughout the entire course of the proceedings in the court below. The trial judge should have made certain that the petition was adequate under § 406 before it granted the amendment. Appellant did not specifically object on this ground to the Commonwealth's request for amendment. Because appellant was not given a copy of the petition until the actual commitment hearing, held ten days later on November 5, 1973, he cannot be deemed to have waived this argument. Therefore, even assuming that § 406 is constitutional in all respects, appellant's commitment was erroneous for failure to comply with the statutory directive.

B. Inadequate Notice

Section 406(a)(3) provides that when a petition is filed, the court must: (1) issue a warrant requiring that the person be brought before the court; (2) fix a date for a hearing, which shall be as soon as the warrant is executed; and (3) notify the parties in interest. In the present case, the authorities had previously incarcerated appellant as a probation violator, thus obviating any need to issue a warrant. The petition was filed on October 24, 1973, and the hearing was held on October 25, immediately after the court ordered appellant released from Northampton County Prison. Thus, at best, appellant had notice of the § 408 petition for one day. Appellant was not informed that the petition would be under § 406 until the day of the hearing.

It is clear that appellant is a "part[y] in interest." Under the terms of the statute, therefore, the court was required to notify him that a civil commitment petition had been filed against him. It is well-settled that every presumption is in favor of the constitutionality of legislative acts, Glancey v. Casey, 447 Pa. 77, 88, 288 A.2d 812 (1972), and that statutes should be construed whenever possible to uphold their constitutionality. Bentman v. Seventh Ward Democratic Executive Committee, 421 Pa. 188, 218 A.2d 261 (1966). Thus, we must construe

[ 234 Pa. Super. Page 166]

§ 406(a)(3)(iii) with these established principles in mind: we must assume that the state legislature did not intend to violate either the federal or Commonwealth constitution.

In requiring that all parties in interest be given notice of the petition, the legislature must have intended that the notice be adequate and in compliance with the dictates of the Due Process Clause. "Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded . . ." Application of Gault, 387 U.S. 1, 33 (1967). In Lessard v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972), vacated and remanded for more specific injunction sub. nom. Schmidt v. Lessard, 414 U.S. 473, 94 S. Ct. 713 (1974), a case dealing with civil commitment, the court amplified the essentials of adequate notice: "Notice of date, time and place is not satisfactory. The patient should be informed of the basis for his detention, his right to jury trial, the standard upon which he may be detained, the names of examining physicians and all other persons who may testify in favor of his continued detention, and the substance of their proposed testimony." 349 F. Supp. at 1092. Although we do not adopt all the elements required by Lessard, it is clear that the appellant was not provided adequate notice. In addition to the facts that notice of the hearing was given only one day in advance, appellant was never informed of the reasons for his detention prior to the preliminary hearing of October 25. Futhermore, appellant was not made aware of the substance of Dr. Rowley's testimony until he actually testified at the final commitment hearing. Finally, the petitioner, Warden Cavanaugh, did not appear at either hearing, thus depriving the appellant of an opportunity to cross-examine his principal accuser.

It should be noted that the failure of § 406 to specify basic procedural safeguards does not render the statute

[ 234 Pa. Super. Page 167]

    unconstitutional on its face. By reasonable construction, these due process dictates can be incorporated into the statute. For example, § 406 does not require that the subject of a civil commitment petition be represented by counsel. Nor does it require that the final commitment order follow an evidentiary hearing. If neither were read into the statute, § 406 would be blatantly unconstitutional. Appellant makes neither of these claims because he was ably represented by counsel throughout the entire course of the commitment procedure, and he was afforded an evidentiary hearing before the lower court issued the final commitment order. Similarly, the notice requirement contained in § 406(a)(3)(iii) must be construed to require that the subject of a commitment proceeding be given a copy of the petition in advance of the hearing, and that the names of all adverse witnesses and the substance of their testimony be provided sufficiently in advance of the hearing. Both are essential if the subject of the petition is to be given an opportunity to prepare a meaningful defense.*fn6 In addition, the petitioner must

[ 234 Pa. Super. Page 168]

    appear at the hearing, if available, to comply with the confrontation clause ...

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