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decided: April 28, 1977.



Michael L. Rosenfield, Berlin, Boas, Isaacson, Logan, Rosenfield & Sharon, Pittsburgh, for appellant.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy and Manderino, JJ. Former Chief Justice Jones did not participate in the decision of this case. Nix, J., did not participate in the consideration or decision of this case. Roberts, J., filed a concurring opinion. Manderino, J., filed a dissenting opinion.

Author: Eagen

[ 472 Pa. Page 391]


On October 16, 1975, appellant Albert L. Niccoli, who was then 54 years of age, divorced, and living with his 86-year-old father and next door to his 56-year-old brother, appellee Emil V. Niccoli, voluntarily signed himself into the Leech Farm Veterans Administration Hospital [Leech Farm] as a psychiatric patient after a violent physical altercation with his brother over the type of food that ought to be given to their invalid father. On October 23, 1975, while Albert Niccoli was still a patient at Leech Farm, Emil Niccoli filed a petition in the Orphans' Court Division of the Court of Common Pleas of Allegheny County seeking the civil commitment of his brother pursuant to section 406 of the Mental Health and Mental Retardation Act of 1966 [the Act].*fn1 The petition

[ 472 Pa. Page 392]

    represented: "Petitioner believes that Respondent is in need of treatment because of his conduct and actions which constitute not only a disturbance and threat to members of his immediate family and to the public, but also a threat to Respondent's own well-being, and that his examination or commitment to a proper facility in accordance with the provisions of said Act is necessary for his welfare and protection." It further represented that "Petitioner has made efforts to individually secure care and treatment for Respondent, but Respondent has refused to undergo any treatment." The petition also suggested that Respondent be committed to Western Psychiatric Institute and Clinic [Western]. The court directed the sheriff to produce Albert Niccoli for a hearing on October 28. Appellee's counsel noted on the sheriff's form that appellant was to be picked up at Leech Farm.

The scheduled hearing was conducted on that date with the participation of appellant and his court-appointed counsel. Appellee testified that on October 16 appellant had attacked him with a crowbar after objecting to the soup he was feeding their father and that he, appellee, was subsequently cut in a struggle over a knife that was lying on the floor, that his brother had physically attacked him on a number of previous occasions, that appellant

[ 472 Pa. Page 393]

    had frequently threatened harm to both him and their father and was frequently destructive in the house and given to throwing out food he considered unhealthy. Appellee further testified that his brother had previously been hospitalized as a mental patient on a number of occasions, but that he had refused voluntary out-patient treatment. He did not testify that appellant had voluntarily signed himself into Leech Farm and that he had remained there until the hearing, nor were these facts brought out on cross-examination. Appellant testified in his own behalf, but he appeared to have difficulty focusing on recent events and instead continuously returned in a rambling fashion to the past history of his family. At the conclusion of appellant's testimony, the court ordered him returned to Leech Farm overnight and then taken on the following day to Western to be examined and observed.*fn2 A second hearing was scheduled for November 7.

[ 472 Pa. Page 394]

At the November 7 hearing Dr. Stanley Peal testified that he had examined and observed appellant regularly during his stay at Western, that he had diagnosed appellant as suffering from a "manic depressive psychosis" which lessened his "self control, judgment and discretion," that he required in-patient care, and that his condition presently made him dangerous to himself and others. Dr. Peal further testified that appellant recognized his need for further hospital treatment, that he was willing to return to the veterans hospital on a voluntary commitment, and that Leech Farm was willing to accept him as a voluntary patient, but the doctor also stated that "even with his good intentions at this time" it was unlikely that appellant would remain willing to stay at the hospital voluntarily because of an inability to carry out his intentions characteristic of his mental disorder. The hearing judge also admitted into evidence, over appellant's objection, a written evaluation by another examining physician stating that appellant "should return to Leech Farm where he is willing to go and receive the necessary help."*fn3 Appellant himself testified that he felt he would benefit from further treatment at Leech Farm, that he was willing to sign himself in voluntarily and accept the treatment recommended by the doctors there, and that he had done so previously before he was brought to court. Appellant also called as a witness Michael Gildea of the county mental health department, who testified that it was the position of the county that when a facility is willing to accept a patient on a voluntary basis, there is no basis for an involuntary commitment

[ 472 Pa. Page 395]

    under section 406 except in "extraordinary circumstances." The hearing judge, nevertheless, indicated that he would rely solely on the testimony of Dr. Peal, and he proceeded to commit appellant to Leech Farm involuntarily for an indefinite term with no provision for subsequent judicial review. After the court en banc dismissed appellant's exceptions, this direct appeal followed.

Instantly, appellant argues that the hearing court deprived him of due process of law by rejecting the concept of "least restrictive alternative" and committing him involuntarily to an indefinite term of hospitalization despite his willingness to be hospitalized on a voluntary basis. Since he admits his desire and does not dispute his need for hospitalization and treatment or challenge the constitutionality of section 406 itself, we need not here determine whether the evidence of "mental disability" adduced was sufficient under the statutory terms or the constitutional ...

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